O’Shea Bookmaking Pty Ltd t/as TexBet v Argeres

1. [1]

   By a summons filed on 10 April 2025, the appellant, O’Shea Bookmaking Pty Ltd (trading as TexBet) (TexBet), seeks an extension of time in which to appeal against its conviction on 25 September 2024 in the Local Court of five offences (Sequences 3 to 7) under ss 33HA(1) and 33JC(4) of the Betting and Racing Act 1998 (NSW) (the Act) and, if an extension is granted, orders allowing the appeal and setting aside the convictions. The appeal is brought under s 52 of the Crimes (Appeal and Review) Act 2001 (NSW) (the CAR Act), which gives a person who has been convicted or sentenced by the Local Court a right of appeal to this Court “but only on a ground that involves a question of law alone”. An extension of time is required because the appeal was not filed within the 28 days specified in the Supreme Court Rules 1970 (NSW), Pt 51B r 6.

2. [2]

   The extension of time was sought in circumstances where TexBet filed an appeal within time under s 11 of the CAR Act to the District Court (which confers a general right of appeal on all grounds to that Court) and subsequently discontinued that appeal in favour of an appeal to this Court on a question of law alone. An extension of time was not opposed by the respondent. In those circumstances, it should be granted.

Background

1. [3]

   Between 3 July 2020 and 27 June 2023, TexBet provided online betting services to customers via the website texbet.com.au as a licensed bookmaker under s 16 of the Act. Section 16 relevantly provides:

2. [4]

   On 19 June 2022, Mr Patrick Ziguras, a resident of Carnegie, Victoria, opened an account with TexBet. From that time, he regularly placed bets using that account. However, on 14 May 2022, Mr Ziguras sent a LiveChat message to TexBet saying:

3. [5]

   In response, a TexBet representative sent Mr Ziguras by LiveChat documentation to complete a permanent account closure (also known as a permanent self‑exclusion). Mr Ziguras did not complete that documentation. He said in a witness statement that he was unable to do so because he did not have a laptop or printer with him. Notwithstanding his request, Mr Ziguras continued to place frequent bets with TexBet between 14 May 2022 and 18 June 2022.

4. [6]

   Following the request made by Mr Ziguras on 14 May 2022, TexBet sent Mr Ziguras several promotional SMS text messages. Each concluded with the statement “To opt‑out Reply Stop”. Mr Ziguras did not exercise that option.

5. [7]

   On 19 June 2022, Mr Ziguras sent text messages to a representative of TexBet that included the following:

6. [8]

   Mr Ziguras’s account was permanently closed on that day.

7. [9]

   Section 33HA of the Act relevantly provides:

8. [10]

   Section 33JC of the Act relevantly provides:

9. [11]

   “Licensed betting service provider” is defined in s 4 of the Act to mean:

10. [12]

    “Betting service provider” is defined in s 4 of the Act to include a “bookmaker” and “betting service” is defined in a way that includes the services provided by TexBet.

11. [13]

    Relevantly, TexBet was charged with and found guilty of four offences of providing a gambling advertisement contrary to s 33HA(1) arising out of the text messages it sent to Mr Ziguras after 14 May 2022 (Sequences 3 to 6) and an offence of accepting new bets from Mr Ziguras after receiving a request from him to close his account contrary to s 33JC(4) (Sequence 7).

12. [14]

    One issue raised before the Local Court, and the only issue before this Court, is whether TexBet could be guilty of the offences in circumstances where at all relevant times Mr Ziguras was in Victoria. The answer to that question is said to turn on the extraterritorial application of the Act and of ss 33HA and 33JC, in particular.

13. [15]

    In relation to that question, Pearce LCM in an ex tempore judgment delivered in relation to liability on 25 July 2024 said:

14. [16]

    It is apparent from these paragraphs that her Honour rejected the suggestion that the two sections in question only applied where the relevant account was held by a New South Wales resident. Her Honour did not consider any other basis for limiting the territorial scope of the two sections, but it is implicit in her conclusions that whatever they might be they did not exclude the application of the two sections to the facts of this case.

Relevant legal principles

1. [17]

   An unfortunate feature of legislative drafting is that most legislation is expressed to apply to the world at large, or at least contains no express territorial limit on its application: for discussion, see DRJ v Commissioner of Victims Rights (No 2) (2020) 103 NSWLR 692; [2020] NSWCA 242 (DRJ) at [4]ff (Bell P). Plainly, however, legislation cannot and could not have been intended to apply to the world at large. For it to do so would make little sense and would give rise to difficulties of enforcement and raise issues of international comity. Particularly in the case of legislation passed by State Parliaments operating in a federal system, such as Australia, it may also give rise to questions of validity of the legislation and inconsistency with the laws of another State.

2. [18]

   The Common Law sought to deal with this problem by the introduction of a presumption that, absent clear words in the legislation, the legislation is to be interpreted as not operating extra-territorially. That presumption is said to be particularly strong in the case of criminal offences, and is sometimes captured in the aphorism “all offences are local and territorial”: for discussion, see DRJ at [143]ff (Leeming JA); cf R v Porter (2004) 61 NSWLR 384; [2004] NSWCCA 353 at [19] (Spigelman CJ). That presumption is repeated in s 12(1)(b) of the Interpretation Act 1987 (NSW) (the Interpretation Act), which provides:

3. [19]

   There are, however, difficulties with the presumption and with s 12(1)(b). The presumption appears to assume that all legislation seeks to regulate conduct and that the operation of the legislation can be confined to the place where the conduct occurred. But neither of those propositions is always true. For example, legislation that implies certain terms in a contract does not itself directly regulate conduct; and the question arises into which contracts the legislature intended the terms to be implied. Even if the legislation regulates conduct, the conduct sought to be regulated may consist of several acts which occur in different jurisdictions.

4. [20]

   Section 12(1)(b) of the Interpretation Act is not expressed in terms of geographic limits, but read literally it appears to confine every reference to “a locality, jurisdiction or other matter or thing” to one that is “in and of New South Wales”, so that the legislation is presumed (again in the absence of a contrary intention appearing from the legislation) to have no operation outside of New South Wales.

5. [21]

   The modern approach to these issues is to treat the presumption and s 12(1)(b) and equivalent provisions in other jurisdictions as only applying to what has variously been described as the “hinge”, “statutory springboard”, “general subject matter”, “object of legislative concern”, “central conception”, “character”, or “central focus” of the legislation and to limit the application of the presumption to that. As Gordon, Edelman and Steward JJ explained in BHP Group Ltd v Impiombato (2022) 276 CLR 611; [2022] HCA 33 (BHP) at [62]:

6. [22]

   In the context of criminal law, these principles have been modified by Part 1A of the Crimes Act 1900 (NSW) (the Crimes Act). Relevantly, that Part provides:

7. [23]

   Section 10A(1) is supplemented by s 3 and Sch 2 of the Crimes Act. That section provides that “[t]he Parts and sections mentioned in Schedule 2, so far as their provisions can be applied, shall be in force with respect to all offences, whether at Common Law or by Statute, whensoever committed and in whatsoever Court tried”. Schedule 2 (titled “Application of Act”) includes “Part 1A”.

8. [24]

   As is apparent from the terms of these sections, absent an express provision in the section or Act creating the offence, Part 1A extends the application of a law of New South Wales that creates an offence beyond the territorial limits of the State if either a physical element of the offence took place in New South Wales or the physical elements of the offence occurred wholly outside New South Wales but the commission of the offence has an effect in New South Wales.

Consideration

1. [25]

   It appears that Part 1A of the Crimes Act was not brought to the attention of the Magistrate. Nor was it referred to in the appellant’s submissions in chief before this Court, with the result that the appellant’s submissions in chief and the respondent’s submissions focused on the presumption against extra-territoriality and s 12(1)(b) of the Interpretation Act. However, it is plain that the question raised by the appeal turns largely on the operation of Part 1A of the Crimes Act. It was not suggested that the respondent was prevented from relying on those provisions because they had not been drawn to the attention of the Magistrate. And it was not suggested that the application of those provisions would result in a more restricted territorial application of the offences in question than would be the case applying the principles stated by the majority in BHP. In any event, for the reasons which follow, the application of those principles in this case would not result in a different conclusion.

2. [26]

   The physical element of an offence under s 33HA(1) is the provision of a gambling advertisement directly to a betting account holder by email, SMS text message or other direct means. In order to constitute the offence, the gambling advertisement must be provided by relevantly a betting service provider in circumstances where the account holder relevantly has requested the betting service provider to close the account holder’s betting account. However, neither of those additional requirements could be described as physical elements of the offence. The requirement that the advertisement be provided by a betting service provider is simply an identification of the persons to whom the offence applies. The requirement that the account holder has withdrawn his or her consent to receiving advertisements by requesting closure of their account is part of the factual circumstances that are necessary for the offence to occur.

3. [27]

   It follows that in the case of the offences under s 33HA(1), the only physical element of the offence was the provision of gambling advertisements. It seems plain that in the present case that physical element occurred outside of New South Wales. The relevant advertisements were provided to Mr Ziguras by SMS text messages. An SMS text message could only be said to have been provided to Mr Ziguras when it was received on Mr Ziguras’s mobile telephone. The evidence is that Mr Ziguras (and his telephone) were in Victoria on each occasion the messages were sent. Certainly, there was no evidence before the Magistrate that Mr Ziguras was in New South Wales at the time. It follows that the only physical element of the offences under s 33HA(1) did not occur in New South Wales. It was not suggested that the provision of gambling advertisements to Mr Ziguras in Victoria had an effect in New South Wales.

4. [28]

   The respondent submits that a physical element of the offence was the sending of the SMS text messages and that element occurred in New South Wales. In support of that proposition, the respondent relies on s 13B of the Electronic Transactions Act 2000 (NSW). Section 13B(1) provides that, absent some contrary agreement between the parties, an electronic communication is taken to have been dispatched at the place where the originator has its place of business, and the electronic communication is taken to have been received at the place where the addressee has its place of business. Where a party is a natural person and does not have a place of business, it is to be assumed that the party’s place of business is the place of the party’s habitual residence: s 13B(2)(e)

5. [29]

   The respondent’s submission must be rejected. The dispatch of a gambling advertisement is not a physical element of the offence. It is true that the offence could not occur unless a gambling advertisement is dispatched, but it is the provision of the advertisement, not its dispatch which constitutes the offence.

6. [30]

   Under s 10A(4) of the Crimes Act, Part 1A is “in addition to and does not derogate from any other basis on which the courts of the State may exercise criminal jurisdiction”. However, a different result would not be reached applying the principles stated by the majority of the High Court in BHP.

7. [31]

   The offences created by ss 33HA (and the offences created by s 33JC) were introduced by the Gambling Legislation Amendment (Online and Other Betting) Act 2019 (NSW). That legislation was passed to give effect to the National Consumer Protection Framework for Online Wagering in Australia – National Policy Statement dated 26 November 2018, which contained agreed commitments between the Commonwealth and each State and Territory concerning a national framework for consumer protection for interactive wagering in Australia. In accordance with that Framework, each other State and Territory has created similar offences to those created by ss 33HA and 33JC: see Ministerial Direction No. 349 Pursuant to s 4.8A.2 of the Gambling Regulation Act 2003 (Vic), cll 5, 7; Criminal Code (Consent and Mistake of Fact) and Other Legislation Amendment Act 2021 (Qld), Parts 5, 9, 10; Authorised Betting Operations Gambling Code of Practice (SA), ss 39-40; Betting Control Regulations 1978 (WA), Part 3A, Divisions 2 and 3; Gaming Control Act 1993 (Tas), s 112IB; Gambling and Racing Control (Code of Practice) Regulation 2002 (ACT), rr 1.20F, 1.30C; NT Code of Practice for Responsible Service of Online Gambling 2019 (NT), ss 5.6, 8.9.

8. [32]

   The central focus of s 33HA(1) is the provision of a gambling advertisement by a licensed betting service provider to a person who has not consented to its receipt. The section applies to persons throughout Australia who hold a licence or authority to provide betting services. There is no express territorial limit on the operation of the section. Consistently with the decision in BHP, it is natural then to read the hinge or central focus of the section as containing a territorial limitation – that is, to read the section as applying where a licensed betting service provider provides a gambling advertisement directly to a person located or resident in New South Wales. That interpretation is consistent with the consumer protection nature of the section. It is to be expected that the New South Wales legislature’s principal interest would be to provide the relevant protection to persons located or resident in New South Wales at the time the advertisement is provided, leaving it to the other States and Territories to provide similar protections to persons located or resident in their jurisdictions.

9. [33]

   There may be a question whether the relevant nexus is whether the person is present in the State at the time the advertisement is provided or whether the person is a resident of the State at that time. The Victorian provisions, for example, require “a wagering service provider”, in Victoria or elsewhere, “providing interactive wagering and betting services to a Victorian resident” to comply with the requirements of the Ministerial Order. However, it is not necessary to resolve that issue in the present case. On either interpretation, the section does not apply to the conduct in question.

10. [34]

    The physical element of the offence under section 33JC(4) was the acceptance of new bets from Mr Ziguras after receiving a request from him to close his account, or perhaps more accurately the failure to cease to accept new bets from Mr Ziguras after receiving that request. As in the case of s 33HA(1), the offence has other elements including that a request be made by an account holder to close the holder’s account and that the request be made of a licensed betting service provider. But neither of those requirements could be described as physical elements of the offence. In any event, a physical element of the offence was the failure to cease to accept new bets. That failure occurred when new bets were accepted, and it seems apparent that those new bets were accepted in New South Wales. Applying Part 1A of the Crimes Act, that is sufficient to confer jurisdiction on courts in New South Wales.

11. [35]

    TexBet submits that the respondent did not establish beyond reasonable doubt that the new bets were accepted in New South Wales because he did not prove the precise mechanism by which bets were accepted and to the extent that that happened electronically or through arrangements with others to provide “back office” services the location of the relevant servers and the persons providing those services. I do not accept that submission. TexBet carried on the business of accepting online bets in accordance with its authorisation. That authorisation permitted it to accept online bets while fielding at a thoroughbred race meeting in New South Wales (or an authorised betting auditorium at a New South Wales racecourse) or operating from its approved betting office at the Tamworth Racecourse. Consistently with that authorisation, it must be treated as having accepted online bets in New South Wales. Or, to put the point slightly differently, the question where TexBet accepted bets should not depend on the precise mechanism by which online bets were accepted but on the practical effect of what occurred consistently with its authorisation. The practical effect was that it carried on business of accepting online bets and that business was carried on in New South Wales. Consequently, when it accepted a bet it accepted the bet in New South Wales, with the result that its failure to cease to accept bets from Mr Ziguras occurred in New South Wales.

Conclusion and orders

1. [36]

   It follows that the convictions in respect of Sequences 3 to 6 should be set aside, but that the appeal in respect of Sequence 7 should be dismissed. It is appropriate in that case that each party should bear its or his own costs of the appeal. Neither party took issue with that proposition. For similar reasons, no order for costs should be made in relation to the costs in the Local Court.

2. [37]

   Accordingly, the orders of the Court are:

   1. (1)

      The time for filing of the appeal be extended to 10 April 2025.

   2. (2)

      The appeal in respect of Sequences 3 to 6 is allowed.

   3. (3)

      The orders of the Local Court made on 25 September 2024 in respect of Sequences 3 to 6 are set aside and in their place order that verdicts of acquittal are entered in respect of Sequences 3 to 6;

   4. (4)

      The appeal in respect of Sequence 7 (as amended) is dismissed.

   5. (5)

      There be no order as to costs.