Canberra Tradesmen's Union Club v Gambling & Racing Commission [2002] ACTSC 130 (20 December 2002)

Last Updated: 24 December 2002

CANBERRA TRADESMEN'S UNION CLUB AND WODEN TRADESMEN'S UNION CLUB v GAMBLING & RACING COMMISSION [2002] ACTSC 130 (20 December 2002)

CATCHWORDS

ADMINISTRATIVE LAW - appeal from Administrative Appeals Tribunal - application for approval of contribution to cost of union picnic day as community contribution - relevant considerations.

Gaming Machine Act 1987, ss 4, 60A, 60B

Legislation Act 2001, s 146

Holidays Act 1958

Administrative Appeals Tribunal Act 1989, s 46(5)

APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

No. SCA 44 of 2002

Judge: Crispin ACJ

Supreme Court of the ACT

Date: 20 December 2002

IN THE SUPREME COURT OF THE )

) No. SCA 44 of 2002

AUSTRALIAN CAPITAL TERRITORY )

APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: CANBERRA TRADESMEN'S UNION CLUB AND WODEN TRADESMEN'S UNION CLUB

Appellants

AND: GAMBLING & RACING COMMISSION

Respondent

ORDER

Judge: Crispin ACJ

Date: 20 December 2002

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be upheld.

2. The decision of the respondent be set aside.

3. In lieu thereof the contribution of $6,000 made by each of the appellants to the ACT Trades and Labour Council during the year ended 30 June 2001 for the purpose of assisting with the funding of the annual Union Picnic day be approved as community contributions pursuant to section 60B of the Gaming Machine Act 1987.1. This is an appeal against a decision of the Administrative Appeals Tribunal affirming a decision of the respondent not to approve as "community contributions" pursuant to s 60B of the Gaming Machine Act 1987 ("the Act") contributions of $6,000 by each appellant to the "TLC Picnic Day".

2. As the Tribunal observed, amendments to the Act which became effective on 1 June 2001 require clubs holding licences to operate gaming machines to make what are described as "community contributions" at rates proportionate to the net revenue of the Clubs in question. Reports which include details of the total value of the community contributions made by each licensed club must be provided to the respondent within one month of the end of each financial year and failure to make community contributions of the required level gives rise to a community contribution shortfall tax imposed at the rate of 100 per cent of the amount by which the community contributions of the club in question have fallen short of that required.

3. The Act does not contain a comprehensive definition of the term "community contribution". Section 4 which defines other relevant terms merely invites the reader to "see s 60B". At the relevant time that section provided that:

(1) The Commission may approve contributions made by a licensee that is a club to a specified organisation for a specified purpose as community contributions if satisfied the contributions will have the effect of -

(a) contributing to, or developing or supporting the social fabric of the Territory or another community; or

(b) assisting sport or other recreational activities conducted in the Territory, or with participants predominantly based within the Territory.

(2) An approval under subsection (1) may be made generally or in a particular case.

(3) The Minister must, after consultation with Clubs ACT, by notice published in the Gazette, issue guidelines for approving community contributions.

(4) A set of guidelines issued under subsection (3) as a disallowable instrument.

4. The nature of the contributions that could be approved pursuant to s 60B was limited by the terms of s 60A which was then in the following terms:

A reference in this Division to a contribution made by a licensee includes the value of a contribution made in kind, but does not include -

(a) expenditure on commercial activities, or, if the licensee is a club, on the social or entertainment activities of the club for its members; or

(b) expenditure intended to promote specific activities of the licensee; or

(c) a contribution made out of donations collected by the licensee, or out of the proceeds of any special fundraising activity conducted by the licensee; or

(d) a contribution to a business association, registered party, associated entity or trade union; or

(e) if a contribution is made on a condition - the value to the licensee of that condition being fulfilled; or

(f) a contribution made to another club under a reciprocal arrangement or agreement.

5. In short, s 60B empowered the respondent to approve contributions made by licensed clubs as community contributions provided they had the effect required by the section and were not contributions of the kind described in s 60A. The discretionary nature of the power so conferred was evident from the use of the word "may" (see s 146 of the Legislation Act 2001) and from the provision authorising the Minister to issue guidelines. Hence, in the proceedings before the Tribunal two fundamental questions arose for consideration. The first was whether the contributions had the effect of contributing to, or developing or supporting the social fabric of the Territory. The Tribunal was required to address this issue by reference to the criteria set out in the section itself and not by reference to guidelines which were, of course, intended to guide the exercise of the discretion which could arise only in relation to contributions which satisfied this requirement. The second was whether if the contribution was one which satisfied the requirement, should the respondent, or on appeal the Tribunal, have exercised the power to approve it as a community contribution?

6. The Tribunal did not make any express finding about the first of these questions though it apparently accepted that the decisive question was whether the discretion provided by s 60B should have been exercised in the appellant's favour.

7. The Tribunal observed that the expression "social fabric" used in s 60B(1) was not defined by the Act but apart from adverting to the submissions of Mr Erskine, who then appeared for the appellants did not embark upon any attempt to describe what it might mean. Mr Erskine had submitted that this concept clearly extended beyond the constitution and legal structure of government and included a wide range of organisations, institutions and events. He had also submitted that there could be a contribution to the overall social fabric even if only some sections of the community directly benefited. The Tribunal said that the test to be applied by s 60B(1)(a) was imprecise and expressed the opinion that the capacity for "wide and flexible coverage" may have led the legislature to include provision for the Minister to issue guidelines. The Tribunal then turned to consider the effect of the guidelines and whether the contribution in question fell within them.

8. In my opinion, any understanding of the ambit of s 60B(1) should begin with the recognition that the social fabric of any Australian community, and perhaps especially that of the Australian Capital Territory, does not consist of a collection of homogenous individuals woven together by virtue of living together in the one geographical location but rather a rich tapestry of people and organisations with a diversity of interests and pursuits who together contribute to its colour and texture. Any question of whether a particular activity would have the effect of contributing to or developing or supporting the social fabric of the Territory should not be transmuted into an inquiry as to whether every member of the Territory would or might obtain some benefit. The mere fact that some leading musicians or actors may be uninterested in some sporting activities or, conversely, that some cricketers or footballers may have little interest in opera or theatre does not deprive either sport or the performing arts of their place in the tapestry. I can see no reason to suppose that in enacting s 60B the legislature had intended to restrict the concept of "community contributions" to activities of such general appeal that every member of the community might be expected to participate in them. On the contrary, I am prepared to assume that the legislature was well aware of the vibrant and diverse culture that pervades the Territory and other Australian communities and that the enactment should be construed as reflecting an intention to confer upon the respondent a broad discretion to approve contributions to particular aspects of the social fabric such as sport, the arts or, in this instance, the trade union movement. A picnic day apparently open to the public and conducted as a celebration of the role of trade unions in the community would in my opinion make a contribution to the social fabric of the Territory. Consequently, I accept that the respondent, and hence on appeal the Tribunal, had power to approve the contributions in question. The question is whether it should have done so.

9. The resolution of that question requires due consideration of the guidelines which were approved by the Minister pursuant to s 60B(3) of the Act on 26 June 2001 and notified in the Gazette on 29 June 2001. The Tribunal cited the following passages:

Community Contributions

The community contributions approved under the Act are to be for the benefit of the general public or community. The contributions should enhance the community's standard of living by providing or assisting with the physical and social infrastructure of the Territory or another community.

The contributions are not to be specifically restricted to particular organisations or their members. They should not be targeted to encourage gambling activity or the consumption of alcoholic beverages.

Expenditure on commercial activities or to organisations that are trading to make a profit are not considered as eligible contributions.

The purpose of the compulsory community contributions is to ensure that a reasonable level of expenditure is returned to the general community from gaming machine licensees.

Eligible Contributions

Form of Contribution

. . .

Criteria for Eligible Donations

Legislative Criteria

Section 60B of the Act specifies the type of gift or donation that is considered eligible to qualify as a community contribution. Specifically, in order to be considered as a community contribution the gift or donation will need to have the effect of:

* Contributing to, or developing or supporting the social fabric of the Territory or another community; or

* Assisting sport or other recreational activities conducted in the Territory, or with participants predominantly based within the Territory.

Meeting the Eligibility Criteria

Contributions to the following will be considered as eligible community contributions:

(1) Charitable Organisations The recipient organisation may or may not be incorporated but its primary purpose must be for charitable, benevolent, philanthropic or religious purposes. Examples of acceptable organisations include the Salvation Army, St Vincent De Paul, Red Cross, World Vision and other Public Appeals.

(2) Welfare, Safety and Social Services Contributions that assist activities aimed at improving the living standards of low income and disadvantaged people in the Territory or elsewhere or contribute to or assist organisations which contribute to the welfare of the Territory community.

Examples include:

- family support;

- child protection;

- youth support programs;

- emergency or low cost accommodation;

- drug, alcohol and problem gambling education;

- counselling including problem gambling support;

- child care and aged care services;

- schools, school equipment or facilities for use by students;

- hospitals, hospital equipment or facilities for use by patients;

- retirement villages, equipment for use in retirement village or facilities for use by residents of such villages;

- women's support services;

- safety house projects; and

- neighbourhood watch.

(3) Sport and Recreation Contributions by a licensee for sporting purposes, including payments to associated organisations such as for players' wages, coaching, players' equipment and uniforms will be eligible. Support or assistance may be provided in the construction, development or maintenance of sport or other recreational facilities that are available to the public. Sporting facilities may be restricted in general public access but must be available for hire or arranged access by the public. Any hiring fee charged will be offset against claimed contributions for this category.

Contributions may be made directly by the licensee to the recipients, to "subclubs", associated organisations, independent or to external organisations. Also eligible are contributions for the support or development of sport such as for junior coaching or skills seminars. Support for recreational activities or events that are available to the public may be claimed, such as for bushwalking or orienteering activities.

(4) Non-Profit Activities Includes schools, hospitals, retirement villages, community organisations and any other non-profit organisation established in the interest of the community. It includes community activities or functions that have general public appeal or assist in developing a community spirit. The events or activities must be available to the general public and be non-political. Examples include:

- direct donations to public - includes direct donations to individuals or target groups such as scholarships and the purchase of food or supplies for the poor/needy, aged or under privileged;

- ethnic organisations and multicultural activities - includes any foreign or domestic based organisations devoted to culturally based events or activities. Examples include music, dance, art or language groups organised by various ethnic communities;

- special events -to develop a community spirit or participation, such as promotion of physical activity, clean up of the community, volunteer environmental or land care groups;

- special services or celebrations - including significant public memorial services, celebrations or ceremonies that are non-political, for example, ANZAC Day, Australia Day;

- significant ACT events - includes events organised in the ACT that are provided free of charge to participants. An example is Sky Fire; and

- volunteer organisations - includes the Volunteer Bush Fire Brigade, Rotary, Lions and any other bodies that provide benevolent/community related services.

(5) Community Infrastructure Contributions made for the development or maintenance of infrastructure owned by the licensee which are provided for or accessed by the general public. These contributions may include expenses to build, upgrade and maintain assets such as museums, art galleries, playgrounds, car parks that are not required to comply with leasing arrangements, park lands, or gymnasiums. Any entry fee or hiring fee will be taken into account in determining the net contribution to the provision of such facilities.

10. It is understandable that the guidelines should refer to "special services or celebrations" as community activities or functions that may have a general public appeal or assist in developing a community spirit. Celebrations may be an important part of the life of any community. In many cases they involve expressions of gratitude to people who have made outstanding contributions to the community often at great personal sacrifice. One obvious example identified in the guidelines themselves is that of the celebrations on Anzac Day when the nation pays homage to Australian soldiers who fought to preserve freedom. In other cases what may be celebrated is a particular event such as the Federation of Australia. In either event, such celebrations may involve much more than mere reflection on the past and occasions for a holiday or function. They involve important affirmations of the values which undergird our society and, by providing a focus for reflection on past achievements, they may provide a reminder of the need to protect and preserve what has already been achieved and, perhaps, stimulate and encourage others to emulate earlier achievements. In this way they may provide a substantial contribution to the social fabric of the Territory or other Australian communities.

11. The picnic day in question was, of course, concerned with celebrating the achievements and role of trade unions in Australia. It was apparently inaugurated by the ACT Trades and Labour Council in 1938 and has been an annual event ever since save only for a short period during World War II. Mr Grieve QC, who appeared for the appellant, pointed out that the importance of this celebration had been recognised by the legislature in amending the Holidays Act 1958 to add the picnic day as a prescribed holiday for employees whose terms and conditions of employment are governed by awards specified in Schedule 1 of the Act.

12. No evidence was adduced as to the achievements of the union movement in Australia but judicial notice may be taken of matters that are so well known that no reasonable member of the community should be presumed to be unaware of them. I accept that some members of the community may have only a cursory knowledge of the history of the trade union movement but few would be unaware of the early struggles to overcome the practice of exploiting child labour that emerged in the period following the industrial revolution or of their unrelenting pressure to ensure that workers were able to obtain adequate wages and that steps were taken to protect them from dangerous workplace practices. The public would also be well aware of the campaigns by unions to obtain shorter working hours, sick leave, annual holidays and to otherwise improve working conditions. In my opinion, judicial notice may also be taken of the great contributions that unions have made to industrial safety and of the efforts that they have made to improve the entitlements of female employees including, most recently, outspoken support for maternity leave. These achievements have done much to improve the quality of life enjoyed by everyday Australians and it seems entirely appropriate that they should be the subject of celebration.

13. It had also been argued that the contribution should have been approved under s 60B because it involved a subsidised social function for families. It was conceded that the entry fees were slightly higher for families in which no-one was a member of a union but evidence of membership was not required and it was suggested that few paid the higher rate. Furthermore, even the higher entry fee did not represent a pro rata reimbursement of the actual cost of the benefits provided.

14. The application for approval had initially been rejected by the respondent both on the basis that it was "captured" by s 60A(d) of the Act which precluded approval of contributions to unions and on the basis that it did not contribute to, develop or support the social fabric of the Territory or assist with sporting or recreational activities as required by s 60B. The first of these propositions was rejected by the Tribunal and no notice of contention has been filed challenging its conclusion on this issue. However, the Tribunal effectively upheld the second contention. Mr Grieve submitted that the Tribunal's decision to do so had been vitiated by errors of law.

15. Having regard to the nature of the arguments advanced in support of this contention it may be appropriate for me to quote the relevant passages of the Tribunal's reasons for judgment:

26 Of greatest relevance in this case are those criteria identified in the guidelines as establishing eligibility for donations which apply to non-profit activities. There is little apparent similarity, in my opinion, however, between special events of the kind identified in category (4) of the criteria such as the promotion of physical activity, cleaning up the community, volunteer environmental or land care groups, on the one hand, and the picnic day, on the other hand. Nor is there apparent similarity with the kind of special services or celebrations that are identified in that category which include ANZAC Day and Australia Day. I note also that the further category of special ACT events are said to include events that are provided free of charge to participants. All of the events identified in category (4) are of general community benefit and without restriction on participation. The picnic day, as I have concluded below, is not conducted for the same general and unrestricted benefit.

27 The fact that a contribution may not be included within one of the specific examples referred to in category (4) of the criteria for eligible donations does not, by itself, exclude a contribution from eligibility for approval. Those examples should not be regarded either as exhaustive of the kind of events that are able to meet the criteria or as extending or limiting the meaning of section 60B(1) of the Act (see section 132 Legislation Act 2001). Nevertheless, there is an overriding requirement under the guidelines for any community contribution to be eligible for approval that it be for the benefit of the general public or community.

28 The significance of the role played by trade unions and labour organisations historically in protecting the interests of workers is well understood. The fact that that role is currently recognised by legislation (see for example the Workplace Relations Act 1996 (Cth) arguably supports the view that that role is performed for the benefit of the community generally. However, the focus of section 60B(1) is directed to the effect of the specified purpose for which the relevant contribution was made rather than the identity of the recipient.

29 The particular benefit for the community generally which was claimed for the picnic day was that it would support the celebration of the role played by trade unions and assist provide an affordable family outing alternative to events such as the Canberra Show for those on lower incomes.

30 There is little support to be found, in my view, in either section 60B(1) or the guidelines for a conclusion that a contribution to support a celebration of the role played by trade unions should attract approval as an eligible contribution. The guidelines identify a number of specific organisations well recognised for their charitable, benevolent, philanthropic or religious functions as well as a range of welfare, safety and social service objectives. The intention, clearly enough in my view, is that those bodies and activities are identified as eligible recipients of contributions under the Act because the functions that they perform or the nature of the activities involved are regarded as satisfying the requirement that contributions to them would be of general public or community benefit. It is ordinarily to be expected that a contribution to a charitable organisation will result in the benefit of that contribution assisting the organisation discharge its charitable function. Category 2 of the criteria for eligible donations of the guidelines also makes it clear that the object of the contribution is aimed at the direct provision of the welfare, safety and social services to the disadvantaged persons in need of those services. The use of contributions to support a celebration of the achievements of charitable organisations or the organisations which provide the identified services would permit the use of funds in a manner that would not necessarily result in any tangible benefit to the intended beneficiaries. Such a result is not, in my opinion, intended by the Act. Further, it is difficult, in my view, to reconcile the giving of an approval to the funding of a celebration of the role of an organisation which is itself excluded by section 60A(d) of the Act from being the recipient of such funding.

31 There is also difficulty on the evidence before the Tribunal in arriving at a conclusion that a contribution to the picnic day would result in the provision of a low cost family outing to those unable to afford more expensive alternative events. Whether Mr Pyner's estimate that, with some annual variation, the proportion of attendance by non-unionists at the picnic day was 20-25% was soundly based is difficult to determine having regard to the practice of those collecting entry fees to not enquire whether the purchaser of a ticket was a unionist or not and the absence of any record-keeping as to the status of attendees. While the evidence given in relation to the picnic day on 5 March 2001 enables a finding to be made that there was no imposed restriction on the attendance of persons who were not members of a trade union or the family of a member, the only reference in material advertising the event to indicate the eligibility of such persons to attend was the reference to a fee applicable to such persons in a sum different to that payable by persons who were members of a union. Irrespective as to any possible contrary intention of organisers of the picnic day, the clear implication to be drawn from the material available to the community generally was that the purpose of the occasion was to provide a social function for persons who were union members and their families. The evidence does not, in my view, support a finding that the making of a contribution to the picnic day would for the purpose or would produce the result claimed by the applicant.

16. These passages clearly demonstrate that the Tribunal gave due consideration to the issues that had been raised by the appellants and adopted a carefully reasoned approach to them. In my opinion, however, a number of the observations reflect an unduly narrow view of the purposes of s 60B and of the guidelines as to how the power conferred by that section should be exercised.

17. As the Tribunal pointed out, the section clearly reflected an intention that the contributions be of general public or community benefit but it was their potential contribution to or the development or support of the social fabric of the community that should have been decisive rather than the extent to which the benefits may have flowed directly to all members of that community. It may be true, as the Tribunal observed, that category 2 of the eligibility criteria set out in the guidelines was aimed at the provision of welfare safety and social services to disadvantaged people but special events including celebrations were not referred to in that category but in category 4 of the eligibility criteria. In this context the statement that the use of contributions to support a celebration of achievements would not have necessarily resulted in any tangible benefit to the intended beneficiaries seems to reflect some measure of confusion. The only intended beneficiary of the payment in question was the ACT Trades and Labour Council and it was not the "object" of the contribution that should have been decisive but rather the effect. Furthermore, the section did not require that the effect relate to the provision of welfare, safety or social services to disadvantaged persons or that it involve the creation of benefits that could be described as "tangible". The value of great celebrations, including those conducted on Anzac Day and Australia Day, does not lie in the production of tangible benefits such as the provision of goods and services to the poor but in the evocation of important values and aspirations or, to use the phrase employed in the guidelines, "community spirit". In my view, the Tribunal erred in law by failing to adequately consider the extent to which the less tangible but nonetheless beneficial effects of the picnic day might have on the social fabric of the Territory.

18. Whilst the picnic day in question may not have had an obvious "similarity" with either Anzac Day or Australia Day, the guidelines referred to those days only as examples of special services or celebrations of a non political kind that were of such significance that contributions to them could properly be regarded as community contributions.

19. In my opinion, a further indication that the Tribunal adopted a too narrow interpretation of the section is to be found in its statement that it was difficult to reconcile approval of funding for a celebration of the role of an organisation which was itself excluded by s 60A(b) of the Act from being the recipient of such funding. It is, of course, true that the subsection in question prevents approval of contributions to trade unions and that the picnic day involves a celebration of the role of unions. However, there is nothing in the Act to indicate that contributions to the cost of special events or celebrations should be disqualified from approval on such a basis and I do not accept that such a restriction was intended. On Anzac Day, to take one of the examples used in the guidelines, the Australian public celebrates the sacrifices made by soldiers during times of war and the heritage of freedom thereby preserved but no gift or contribution to a former soldier could be approved as a community contribution pursuant to s 60B. However, that fact would not preclude approval under s 60B of a contribution made to the RSL or some other community organisation for the purpose of facilitating the annual celebration. Similarly, I have no doubt that the respondent would have been entitled to approve contributions made for a celebration acknowledging the efforts of volunteer fire fighters or of people who went to Bali in a voluntary capacity to care for people injured in the recent terrorist attack or their bereaved relatives.

20. Mr Grieve also submitted that the Tribunal had fallen into error by failing to take into account the fact that the Holidays Act had been amended to provide statutory recognition of the union picnic day as a holiday and cited Hansard records of the debates as evidence that this had been done for the express purpose of permitting people to attend the picnic. I acknowledge the force of this submission but it does not appear that this issue was raised in the proceedings before the Tribunal and, accordingly, I could not have found that the Tribunal had fallen into error by failing to consider it.

21. Finally, Mr Grieve challenged the finding that the essential purpose of the picnic day was to provide a social function to persons who were union members and their families. Mr Grieve submitted that this finding was contrary to substantially unchallenged and uncontradicted evidence that the public were entitled to participate in the relevant event and that significant numbers of them did so. In my opinion it is unnecessary to resolve this issue. As previously mentioned, it is the effect of the contribution on the social fabric of the Territory that is decisive. Union members and their families are, of course, part of the ACT community and the question is not whether other cross-sections of the community were equally represented but whether, overall, the effect on the social fabric of the Territory was sufficient to justify approval.

22. For these reasons I accept Mr Grieve's submissions that the Tribunal did fall into error by adopting an unduly narrow interpretation of the guidelines.

23. Section 46(5) of the Administrative Appeals Tribunal Act 1989 provides that on an appeal against a decision of the Tribunal the Supreme Court may make an order remitting the matter to the Tribunal to be reheard or decided or they make "such other order as the Court, in its discretion, thinks appropriate having regards to its decision". The matter was fully argued before me and I can see no need to remit the matter to the Tribunal for further hearing.

24. I am satisfied that the contribution is one which may be approved pursuant to s 60B of the Act and that it falls within the relevant guidelines. I am of course conscious of the fact that the decision is a discretionary one but in the circumstances of this case I am satisfied that the discretion should be exercised in the appellants' favour.

25. Accordingly, the appeal will be upheld, the decision of the respondent set aside and, in lieu thereof the contributions will be approved as a community contribution pursuant to s 60B.

26. I will hear counsel as to costs.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Chief Justice Crispin.

Associate:

Date: 20 December 2002

Counsel for the appellants: D E Grieve QC

Solicitor for the appellants: Gary Robb & Associates

Counsel for the respondents: P Walker

Solicitor for the respondents: ACT Government Solicitor

Date of hearing: 12 December 2002

Date of judgment: 20 December 2002