Federal Court of Australia

Australian Communications and Media Authority v Jones (No 8) [2026] FCA 861

ORDERS

THE COURT DECLARES THAT:

1.    Between 30 November 2020 and 22 April 2021, the third respondent, Brenton Lee Buttigieg, aided and abetted the contraventions of s 15(2A) of the Interactive Gambling Act 2001 (Cth) by each of the first respondent, Rhys Edward Jones, the second respondent, Diverse Link Pty Ltd, and the fourth respondent, Brisbane Poker Pty Ltd, and thereby contravened s 15(2A) of the Interactive Gambling Act on 144 occasions.

THE COURT ORDERS THAT:

2.    Pursuant to s 64B of the Interactive Gambling Act and s 82 of the Regulatory Powers (Standard Provisions) Act 2014 (Cth), Brenton Lee Buttigieg pay to the Commonwealth within 28 days of the date of this Order, a pecuniary penalty in the sum of $240,000 in respect of the contraventions of s 15(2A) of the Interactive Gambling Act identified in Declaration 1 above.

3.    Pursuant to s 64D of the Interactive Gambling Act and s 121 of the Regulatory Powers (Standard Provisions) Act, Brenton Lee Buttigieg be restrained for a period of five years from the date of this Order from aiding or abetting, counselling or procuring or being knowingly concerned in, or party to, the provision of a prohibited interactive gambling service that has an Australian-customer link in contravention of s 15(2A) of the Interactive Gambling Act.

4.    The applicant and Brenton Lee Buttigieg each bear their own costs of the proceedings.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RANGIAH J:

1    In this proceeding, the applicant, the Australian Communications and Media Authority (the ACMA), alleged that the respondents provided “prohibited interactive gambling services” in contravention of s 15(2A) of the Interactive Gambling Act 2001 (Cth) (the IGA).

2    The ACMA alleged, in summary, that the respondents provided services which facilitated members of the public purchasing poker chips and playing poker online while gambling with those chips.

3    In Australian Communications and Media Authority v Jones (No 6) [2025] FCA 1477, I determined that the ACMA had proved its allegations against the first respondent, Rhys Edward Jones, and the fourth respondent, Brisbane Poker Pty Ltd (Brisbane Poker).

4    The third respondent is Brenton Lee Buttigieg. Mr Buttigieg has admitted ancillary liability for Mr Jones’ and Brisbane Poker’s contraventions of s 15(2A) of the IGA by his promotion of the services they offered, through his administration of a private Facebook group and referral of and provision of instructions to customers.

5    These reasons deal with questions of relief and penalty against Mr Buttigieg. I delivered judgment concerning the issue of relief and penalty against Mr Jones and Brisbane Poker in Australian Communications and Media Authority v Jones (No 7) [2026] FCA 860.

6    The proceeding as between the ACMA and Mr Buttigieg was listed for hearing on the question of relief and penalty on 23 October 2024. The parties submitted that an agreed penalty of $120,000 should be imposed. I expressed considerable doubt about the adequacy of the agreed penalty given the number of contraventions and the maximum penalty for each contravention.

7    On 18 December 2025, I ordered that the ACMA and Mr Buttigieg be given another opportunity to provide written submissions. The proceeding as between the ACMA and Mr Buttigieg was listed for further hearing on the question of relief and penalty on 24 March 2026. At the hearing, the parties maintained that the appropriate penalty was $120,000. I indicated that I may not accept that submission, taking into account the need for general deterrence, and that I was considering imposing a higher penalty. Mr Buttigieg did not seek to withdraw his admissions of contravention, but submitted that any penalty higher than $120,000 would be excessive.

8    The ACMA and Mr Buttigieg agree that the issue of relief and penalty against Mr Buttigieg could be distinguished from the position adopted in respect of Mr Jones and Brisbane Poker for five reasons:

(a)    First, Mr Buttigieg, in promoting the services, was found to have contravened the IGA as an accessory rather than a principal;

(b)    Second, Mr Buttigieg only made a profit of $44,400 compared to the benefit received by Mr Jones and Brisbane Poker in the sum of $7.2 million;

(c)    Third, Mr Buttigieg’s conduct, though deliberate and persistent, was less serious than Mr Jones’ and Brisbane Poker’s conduct because Mr Buttigieg was not put on notice by the ACMA that he may be contravening the IGA, whereas Mr Jones and Brisbane Poker, upon being put on notice as to their potential contraventions, continued regardless;

(d)    Fourth, Mr Buttigieg cooperated in the proceedings, albeit belatedly; and

(e)    Fifth, Mr Buttigieg and the ACMA reached an agreement which, though not binding on the Court, should be given some weight: see Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission (2021) 284 FCR 24 at [129] (Volkswagen).

9    For reasons that follow, I am not persuaded that the agreed penalty of $120,000 is an appropriate penalty. I consider that a penalty of $240,000 is appropriate.

The agreed facts

10    On 14 October 2024, the ACMA and Mr Buttigieg filed a joint Statement of Agreed Facts and Admissions in which Mr Buttigieg admits that:

34.1.    Each of the PPPFish Service, Shuffle Gaming Service and Redraw Poker Service was a prohibited interactive gambling service that had an Australian-customer link;

34.2.    The PPPFish Service and the Shuffle Gaming Service was provided in contravention of s 15(2A) of the IGA by Brisbane Poker and Mr Jones and that the Redraw Poker Service was provided in contravention of s 15(2A) by Diverse Link.

34.3.    Between 30 November 2020 to 22 April 2021, by reason of the conduct summarised at [23]-[32] above, Mr Buttigieg aided and abetted the contraventions of s 15(2A) by each of Brisbane Poker, Mr Jones and Diverse Link;

34.4.    On each day between 30 November 2020 and 22 April 2021, Mr Buttigieg contravened s 92(1) of the Regulatory Powers Act and s 15(2A) of the IGA.

11    The ACMA seeks declaratory and injunctive relief and the imposition of a pecuniary penalty in the sum of $120,000.

12    The proposed orders agreed between the ACMA and Mr Buttigieg are as follows:

THE COURT DECLARES THAT:

1.    Between 30 November 2020 and 22 April 2021, the Third Respondent (Brenton Lee Buttigieg), aided and abetted the contraventions of s 15(2A) of the Interactive Gambling Act 2001 (Cth) (IGA) by each of the First Respondent, Rhys Edward Jones, the Second Respondent, Diverse Link Pty Ltd, and the Fourth Respondent, Brisbane Poker Pty Ltd, and therefore contravened s 92 of the Regulatory Powers (Standard Provisions) Act 2014 (Cth) (Regulatory Powers Act) and s 15(2A) of the IGA.

THE COURT ORDERS BY CONSENT THAT:

2.    An order, pursuant to s 64B of the IGA and s 82 of the Regulatory Powers Act, that Brenton Lee Buttigieg pay to the Commonwealth within 28 days of the date of order, a pecuniary penalty in the sum of $120,000 in respect of the contraventions of [s] 15(2A) of the IGA identified in Declaration 1 above.

3.    An order, pursuant to [s] 64D of the IGA and s 121 of the Regulatory Powers Act, restraining Brenton Lee Buttigieg for a period of 5 years from aiding or abetting, counselling or procuring or being knowingly concerned in, or party to, the provision of a prohibited interactive gambling service that has an Australian-customer link in contravention of s 15(2A) of the IGA.

4.    The Applicant, the Australian Communications and Media Authority, and Brenton Lee Buttigieg each bear their own costs of the proceedings.

(Emphasis in original.)

13    The Statement of Agreed Facts and Admissions states the following in respect of Mr Buttigieg’s conduct:

23.    Between 30 November 2020 and 22 April 2021, Mr Buttigieg:

23.1.    administered a private Facebook group for the PPPFish, Shuffle Gaming and Redraw Poker Services;

23.2.    via the private Facebook group, referred customers to the PPPFish, Shuffle Gaming and Redraw Poker Services and provided instructions on how to use the Services; and

23.3.    via the private Facebook group, promoted the PPPFish, Shuffle Gaming and Redraw Poker Services.

Administration of private Facebook group

24.    Mr Buttigieg administered a private Facebook Group for the PPPFish, Shuffle Gaming, and Redraw Poker Services, which was accessible at the following URL: https://www.facebook.com/groups/PPPFISH.CH1PZ (Facebook Group).

25.    Mr Buttigieg was the sole administrator of the Facebook Group.

26.    The Facebook Group was created on 10 February 2019.

27.    The Facebook Group underwent a number of name changes, with associated changes in appearance:

27.1.    From April to November 2019, the Group was called “PPPFISH PPPOKER UNION (CHIPZ)”.

27.2.    On 17 November 2019, the Group’s name was changed to “PPPFISH PPPOKER UNION - AUSTRALIA POKER”.

27.3.    On 13 May 2020, the Group’s name was changed to “PPPFISH PPPOKER UNION”.

27.4.    On 12 June 2020, the Group’s name was changed to “PPPOKER AUSTRALIA (PPPFISH)”.

27.5.    On 26 October 2020, the Group’s name was changed to “PPPFISH PPPOKER AUSTRALIA”.

27.6.    On 6 January 2021, the Group’s name was changed to “SHUFFLE GAMING”.

27.7.    On 8 February 2021, the Group’s name was changed to “SHUFFLE GAMING POKER AUSTRALIA”.

27.8.    On 11 March 2021, the Group’s name changed to “REDRAW POKER UNION”.

28.    Mr Buttigieg provided customers with a referral code, “CHIPZ”, which customers could provide when registering on the various websites to indicate that they had been referred to the relevant service by Mr Buttigieg. This formed part of the basis upon which Mr Buttigieg was paid by the providers of the services for his promotion of the service.

29.    The Facebook Group had over 2,200 members in the relevant period. The potential reach of the Facebook Group extended beyond the 2,200 members as parts of the Facebook Group could be viewed without becoming a member and were accordingly accessible to anyone.

Referral and instructions to customers

30.    Mr Buttigieg referred customers to the PPPFish, Shuffle Gaming and Redraw Poker Services, and provided these customers with instructions on how to use these services, via:

30.1.    publicly accessible parts of the Facebook Group (see eg Annexures A, B and C to this SOAF);

30.2.    private Facebook messages sent by Mr Buttigieg to Facebook users who had applied to join the Facebook Group (see eg Annexure D).

Promotion of the services

31.    Mr Buttigieg promoted the PPPFish, Shuffle Gaming, and Redraw Poker Services through the operation of the Facebook Group and posts he made on the Facebook Group. Mr Buttigieg made posts:

31.1.    Promoting the playing of poker and PPPoker (see eg Annexure E).

31.2.    Promoting the PPPFish Service (see eg Annexure F).

31.3.    Promoting the Shuffle Gaming Service, including:

31.3.1.    Posts promoting and explaining the transition from the PPPFish Service to the Shuffle Gaming Service (see eg Annexure G).

31.3.2.    Instructions on how to use the Shuffle Gaming Service (see eg Annexure H).

31.3.3.    Posts promoting the Shuffle Gaming Service (see eg Annexure I).

31.3.4.    Posts about the operation of the Shuffle Gaming Service (see eg Annexure J).

31.4.    Promoting the Redraw Poker Service, including:

31.4.1.    Posts promoting the transition from the Shuffle Gaming Service to the Redraw Poker Service (see eg Annexure K);

31.4.2.    Posts promoting the Redraw Poker Service (see eg Annexure L).

14    The parties also agree that during the period in which Mr Buttigieg is alleged to have contravened the IGA (between 30 November 2020 and 22 April 2021), Mr Buttigieg received $44,400 from the providers of the PPPFish, Shuffle Gaming and Redraw Poker Services.

Approach to agreed relief in civil penalty proceedings

15    In Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482, the plurality emphasised at [46] the, “important public policy involved in promoting predictability of outcome in civil penalty proceedings”, and acknowledged that, “the practice of receiving and, if appropriate, accepting agreed penalty submissions increases the predictability of outcome for regulators and wrongdoers”.

16    Their Honours went on to observe at [58] that:

Subject to the court being sufficiently persuaded of the accuracy of the parties’ agreement as to facts and consequences, and that the penalty which the parties propose is an appropriate remedy in the circumstances thus revealed, it is consistent with principle and … highly desirable in practice for the court to accept the parties’ proposal and therefore impose the proposed penalty. …

(Emphasis in original.)

17    In Volkswagen at [125]-[129], the Full Court identified the key principles that apply where the parties to a civil penalty proceeding have settled that proceeding and agreed and jointly proposed a penalty to the Court:

[125]    First, the Court must be persuaded that the penalty proposed by the parties is appropriate. The agreement of the parties cannot bind the Court in any circumstances to impose a penalty which it does not consider to be appropriate.

[126]    Second, if the Court is persuaded of the accuracy of the parties’ agreement as to facts and consequences, and that the agreed penalty jointly proposed is an appropriate remedy in all the circumstances, it would be highly desirable in practice for the Court to accept the parties’ proposal and therefore impose the proposed penalty. The desirability of the Court accepting a proposed agreed penalty which it is persuaded is an appropriate penalty derives primarily from a public policy consideration; the promotion of predictability of outcome in civil penalty proceedings. Predictability of outcome encourages corporations to acknowledge contraventions, which, in turn, assists in avoiding lengthy and complex litigation. It should be emphasised, however, that this public policy consideration is but one of the relevant considerations to which the Court must have regard and, more significantly, it cannot override the statutory directive for the Court to impose a penalty that is determined to be appropriate.

[127]    Third, in considering whether the agreed and jointly proposed penalty is an appropriate penalty, it is necessary to bear in mind that there is no single appropriate penalty. Rather, there is a permissible range of penalties within which no particular figure can necessarily be said to be more appropriate than another. The permissible range is determined by all the relevant facts and consequences of the contravention and the contravener’s circumstances. An agreed and jointly proposed penalty may be considered to be “an” appropriate penalty if it falls within that permissible range. It is unlikely to be considered an appropriate penalty if it falls outside that range.

[128]    It should be emphasised in this context, however, that even though the process in determining whether an agreed and jointly proposed penalty is an appropriate penalty involves or includes determining whether that penalty falls within the permissible range of penalties, having regard to all the relevant facts and circumstances, it does not follow that the Court’s task can be said to amount to no more than determining whether the proposed penalty falls within the permissible range... Nor can it be said that the Court is bound to start with the proposed penalty and to then limit itself to considering whether that penalty is within the permissible range.

[129]    Fourth, in considering whether the proposed agreed penalty is an appropriate penalty, the Court should generally recognise that the agreed penalty is most likely the result of compromise and pragmatism on the part of the regulator, and to reflect, amongst other things, the regulator’s considered estimation of the penalty necessary to achieve deterrence and the risks and expense of the litigation had it not been settled. The fact that the agreed penalty is likely to be the product of compromise and pragmatism also informs the Court’s task when faced with a proposed agreed penalty. The regulator’s submissions, or joint submissions, must be assessed on their merits, and the Court must be wary of the possibility that the agreed penalty may be the product of the regulator having been too pragmatic in reaching the settlement.

(Citations omitted.) (Emphasis added.)

18    The Full Court observed at [131]:

… The Court’s task in such cases is not limited to simply determining whether the jointly proposed penalty is within the permissible range, though that might be expected to be a highly relevant and perhaps determinative consideration. Nor is the Court necessarily compelled to accept and impose the proposed penalty if it is found to be within the acceptable range, though the public policy consideration of predictability of outcome would generally provide a compelling reason for the Court to accept the proposed penalty in those circumstances. The overriding statutory directive is for the Court to impose a penalty which is determined to be appropriate having regard to all relevant matters. The fact that the regulator and the contravener have agreed and jointly proposed a penalty is plainly a relevant and important matter which the Court must have regard to in determining an appropriate penalty. It does not follow, however, that the determination is not discretionary in nature.

(Emphasis added.)

19    In Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450 at [53]-[55] (Pattinson), the High Court made the following observations about the relevance of a prescribed maximum penalty:

[53]    In a civil penalty context, the relevance of a prescribed maximum penalty as a yardstick was explained by the Full Court of the Federal Court in Reckitt Benckiser, where their Honours, citing Markarian, said [at [155]-[156]]:

“The reasoning in Markarian about the need to have regard to the maximum penalty when considering the quantum of a penalty has been accepted to apply to civil penalties in numerous decisions of this Court both at first instance and on appeal. As Markarian makes clear, the maximum penalty, while important, is but one yardstick that ordinarily must be applied.

Care must be taken to ensure that the maximum penalty is not applied mechanically, instead of it being treated as one of a number of relevant factors, albeit an important one. Put another way, a contravention that is objectively in the mid-range of objective seriousness may not, for that reason alone, transpose into a penalty range somewhere in the middle between zero and the maximum penalty. Similarly, just because a contravention is towards either end of the spectrum of contraventions of its kind does not mean that the penalty must be towards the bottom or top of the range respectively. However, ordinarily there must be some reasonable relationship between the theoretical maximum and the final penalty imposed.”

[54]    Two aspects of the Full Court’s reasoning in this passage from Reckitt Benckiser deserve particular emphasis here. The first is their Honours’ recognition that the maximum penalty is “but one yardstick that ordinarily must be applied” and must be treated “as one of a number of relevant factors”. As has already been seen, other factors relevant for the purposes of the civil penalty regime include those identified by French J in CSR.

[55]    The second point is that the maximum penalty does not constrain the exercise of the discretion under s 546 (or its analogues in other Commonwealth legislation), beyond requiring “some reasonable relationship between the theoretical maximum and the final penalty imposed”. This relationship of “reasonableness” may be established by reference to the circumstances of the contravenor as well as by the circumstances of the conduct involved in the contravention. That is so because either set of circumstances may have a bearing upon the extent of the need for deterrence in the penalty to be imposed. And these categories of circumstances may overlap.

20    In Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25 at [157], the Full Court observed that, “the assessment of the appropriate range for penalty in the circumstances of this case is best assessed by reference to other factors, as there is no meaningful overall maximum penalty given the very large number of contraventions over such a long period of time”.

21    Courts have also recognised that, “[i]n cases involving a very large number of contraventions, it may be unhelpful to seek to make a finding as to the precise number of contraventions, or to calculate a maximum aggregate penalty by reference to such a number”: Australian Competition and Consumer Commission v Trivago N.V. (No 2) (2022) 159 ACSR 353; [2022] FCA 417 at [66] (Moshinsky J); see also Australian Competition and Consumer Commission v Coles Supermarkets Pty Ltd (2015) 327 ALR 540 at [82] (Allsop CJ).

22    Engaging, “in a mere arithmetical calculation multiplying the maximum penalty by the number of contraventions to get a theoretical maximum for all offending”, has been described as potentially an “arid exercise”: Australian Securities and Investments Commission v Commonwealth Bank of Australia [2020] FCA 790 at [65].

Pecuniary penalty

23    Under s 82(3) of the Regulatory Powers (Standard Provisions) Act 2014 (Cth) (Regulatory Powers Act), if the Court is satisfied that the person has contravened the civil penalty provision, the Court may order the person to pay to the Commonwealth such pecuniary penalty for the contravention as the Court determines to be appropriate.

24    In determining the appropriate pecuniary penalty, s 82(6) of the Regulatory Powers Act requires the Court to take into account all relevant matters, including:

(a)    the nature and extent of the contravention;

(b)    the nature and extent of any loss or damage suffered because of the contravention;

(c)    the circumstances in which the contravention took place; and

(d)    whether the person has previously been found by a court (including a court in a foreign country) to have engaged in any similar conduct.

25    The High Court has explained, “civil penalties are imposed primarily, if not solely, for the purpose of deterrence”: Pattinson at [15]. Deterrence has two aspects, namely, “specific deterrence of the contravener and, by his or her example, general deterrence of other would-be contraveners”: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157 at [116].

26    The object of civil penalties, “is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene”, the provision: Trade Practices Commission v CSR Ltd [1991] ATPR 41-076 at 52,152; Pattinson at [15]. A civil penalty, “must be fixed with a view to ensuring that the penalty is not such as to be regarded by [the] offender or others as an acceptable cost of doing business”: Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249 at [62]; see also Pattinson at [17]. However, the penalty must strike, “a reasonable balance between deterrence and oppressive severity”: Pattinson at [41] and [46].

27    In Trade Practices Commission v CSR Ltd [1991] ATPR 41-076, French J identified a number of factors informing the setting of a penalty of appropriate deterrent value under the Trade Practices Act 1974 (Cth), which have subsequently been applied more widely in the imposition of civil penalties (see eg Pattinson at [18]-[19]). Those factors, which overlap with the mandatory factors specified in s 82(6) of the Regulatory Powers Act, are as follows:

1.    The nature and extent of the contravening conduct.

2.    The amount of loss or damage caused.

3.    The circumstances in which the conduct took place.

4.    The size of the contravening company.

5.    The degree of power it has, as evidenced by its market share and ease of entry into the market.

6.    The deliberateness of the contravention and the period over which it extended.

7.    Whether the contravention arose out of the conduct of senior management or at a lower level.

8.    Whether the company has a corporate culture conducive to compliance with the Act, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention.

9.    Whether the company has shown a disposition to co‑operate with the authorities responsible for the enforcement of the Act in relation to the contravention.

28    The maximum penalty set by Parliament, which is an expression of the legislature’s policy concerning the seriousness of the proscribed conduct, is a relevant consideration and ordinarily there must be some, “reasonable relationship between the theoretical maximum and the final penalty imposed”: see Pattinson at [55]; Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25 at 63 [156].

29    The determination of a civil penalty involves a process of “instinctive synthesis” of the relevant factors: Australian Competition and Consumer Commission v Employsure Pty Ltd (2023) 407 ALR 302 at [42].

30    Concepts from criminal sentencing, such as totality, parity and course of conduct may assist in the assessment of an appropriate penalty: Pattinson at [45].

Relevant factors in the present case

31    The PPPFish, Shuffle Gaming and Redraw Poker Services were not provided by Mr Buttigieg. They were provided by third parties, namely Brisbane Poker, Mr Jones and Diverse Link.

32    Mr Buttigieg is taken to have contravened s 15(2A) of the IGA pursuant to s 92 of the Regulatory Powers Act because he aided and abetted the contraventions of s 15(2A) by each of Mr Jones, Brisbane Poker and Diverse Link by:

(a)    administering a private Facebook group for the PPPFish, Shuffle Gaming and Redraw Poker Services;

(b)    referring customers to the PPPFish, Shuffle Gaming and Redraw Poker Services and providing instructions to customers on how to use the services through the private Facebook group, including via private messages; and

(c)    promoting the PPPFish, Shuffle Gaming and Redraw Poker Services through the private Facebook group.

33    In the relevant period, Mr Buttigieg was paid $44,400 from the providers of the PPPFish, Shuffle Gaming and Redraw Poker Services for performing these activities.

34    Mr Buttigieg admits that, pursuant to s 15(2B) of the IGA, he contravened s 15(2A) of the IGA on each day between 30 November 2020 and 22 April 2021 (that is, 144 contraventions of s 15(2A) of the IGA).

35    Section 15(2A) of the IGA provides for a civil penalty of 7,500 penalty units. The value of a penalty unit at the relevant time was $222. The theoretical maximum penalty for Mr Buttigieg’s 144 contraventions is accordingly $239,760,000.

36    Mr Buttigieg’s conduct was deliberate in the sense that he intended to promote the PPPFish, Shuffle Gaming and Redraw Poker Services, and refer customers to those services.

37    The IGA aims to limit the provision of interactive gambling services that increase the accessibility of gambling and exacerbate problem gambling in Australia. Mr Buttigieg’s conduct contributed to the operation of the PPPFish, Shuffle Gaming and Redraw Poker Services which were provided in contravention of the IGA. Australians have gambled millions of dollars on the PPPFish, Shuffle Gaming and Redraw Poker Services.

38    Mr Buttigieg has never previously been found by a court (including a court in a foreign country) to have engaged in any similar conduct.

39    Mr Buttigieg is an individual and not a body corporate. Considerations concerning the size, market power and governance of the contravening company in determining an appropriately deterrent penalty are inapplicable to Mr Buttigieg.

40    Mr Buttigieg has made admissions and agreed to the Statement of Agreed Facts and joint submissions in advance of the liability hearing. Mr Buttigieg’s cooperation narrowed the issues to be determined at that hearing, with resulting savings in the time and cost of the proceedings. Mr Buttigieg’s cooperation is reflected in a significant reduction from the penalty that the ACMA would otherwise have submitted would be appropriate in a contested outcome.

41    The ACMA and Mr Buttigieg submit that a penalty of $120,000 is appropriate in the present case. They submit that that figure strikes a reasonable balance between the need for general and specific deterrence and ensuring that the penalty is more than the acceptable cost of doing business and oppressive severity for an individual. They submit that the figure reflects the nature of Mr Buttigieg’s role as an ancillary contravener rather than a provider of the service and Mr Buttigieg’s cooperation.

Consideration of pecuniary penalty

42    My task is to decide the appropriate penalty that should be imposed on Mr Buttigieg. I am not bound by the agreement of the parties and am at liberty to impose a different penalty: see eg Draffin v Construction, Forestry, Mining and Energy Union [2009] FCAFC 120; (2009) 189 IR 145 at [93]; Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR 41-993; [2004] FCAFC 72 at [69].

43    Mr Buttigieg has admitted that on each day between 30 November 2020 and 22 April 2021, he aided and abetted the contraventions, totalling 144 contraventions. At the time of Mr Buttigieg’s contravening conduct, the maximum penalty for a single contravention of s 15(2A) of the IGA was $1,665,000.

44    The parties’ joint submissions point to the desirability of the Courts accepting the parties’ proposal and imposing the agreed penalty, citing Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482 at [46] and [58].

45    The ACMA also contend that the prescribed maximum penalty is a relevant yardstick but that it is of limited assistance in determining the penalty for Mr Buttigieg’s contravening conduct. The size of the maximum penalty for contravening s 15(2A) must be understood in the context of the broad spectrum of conduct which may be captured by s 15(2A) of the IGA. The maximum penalty must be sufficient to appropriately penalise a prohibited interactive gambling service capable of receiving significant amounts of money each day. The ACMA submits that here, the nature of Mr Buttigieg’s contravening conduct, being the aiding and abetting of contraventions by Brisbane Poker, Diverse Link and Mr Jones through the maintenance of a Facebook group, was of a different and less sophisticated nature.

46    The ACMA submits that the proposed penalty sufficiently exceeds the benefit Mr Buttigieg received for the agreed contravening period. It also reflects a significant discount for the cooperation that Mr Buttigieg provided, albeit belatedly, to the ACMA.

47    I do not accept the submissions of Mr Buttigieg and the ACMA that $120,000 is an appropriate penalty.

48    It is apparent that Mr Buttigieg’s conduct was deliberate and designed for profit, and he did make $44,400. The contraventions occurred over a protracted period of five months. Mr Buttigeig’s Facebook group had a substantial reach to its 2,200 members in the relevant period.

49    Regard must be had to the seriousness with which Parliament regards contraventions of s 15(2A) of the IGA. That seriousness is indicated by the very high maximum penalty for each contravention and that a separate contravention is committed in respect of each day during which the contravention occurs: s 15(2B) of the IGA.

50    The maximum penalty for a single contravention was $1,665,000. Mr Buttigieg committed 144 contraventions. In my opinion, the agreed penalty of $120,000 bears no reasonable relationship with the maximum penalty for a single contravention, let alone his many contraventions.

51    Although the agreed penalty of $120,000 may be sufficient to deter Mr Buttigieg specifically, general deterrence is also important. These are amongst the first civil proceedings under s 15(2A) of the IGA. It is evident that large sums of money may be made from aiding and abetting the provision of prohibited interactive gambling services. There is a substantial risk that persons tempted to engage in contraventions of a like kind would view a penalty in the order of the agreed penalty as a mere cost of doing business. The agreed penalty is not adequate to reflect the need for general deterrence.

52    I accept that the five factors raised by the ACMA and Mr Buttigieg in the hearing makes Mr Buttigieg’s position distinguishable from that of Mr Jones and Brisbane Poker. This should be recognised in a more lenient penalty than I would have otherwise imposed.

53    Section 85(1) of the Regulatory Powers Act provides that the Court, “may make a single civil penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form… a series of contraventions of the same or a similar character”. It is appropriate to make a single civil penalty order in respect of Mr Buttigieg’s multiple contraventions.

54    I will order that Mr Buttigieg pay a pecuniary penalty of $240,000. This amount, in my opinion, strikes a reasonable balance between the need for general and specific deterrence and oppressive severity. The penalty takes into account the totality principle: cf ACMA v Jones (No 4) at [30], [32]; Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113.

Declaratory relief

55    The Court has jurisdiction to grant declaratory relief pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth). The relevant principles were summarised by Abraham J in Tax Practitioners Board v Van Dyke [2024] FCA 899 at [84]:

The power to grant declaratory relief pursuant to s 21 of Federal Court of Australia Act 1976 (Cth) “is a very wide one” and the court is “limited only by its discretion”. Three requirements need to be satisfied before making declarations: (1) the question must be a real and not a hypothetical or theoretical one; (2) the applicant must have a real interest in raising it; and (3) there must be a proper contradictor. That a party has chosen not to oppose a grant of particular declaratory relief is not an impediment to such relief being granted by the Court. Other factors relevant to the exercise of the discretion include: (a) whether the declaration will have any utility; (b) whether the proceeding involves a matter of public interest; and (c) whether the circumstances call for the marking of the Court’s disapproval of the contravening conduct.

(Citations omitted.)

56    The preconditions for the grant of declaratory relief are established in the present case:

(a)    There is a real and not hypothetical question of whether Mr Buttigieg was an ancillary to prohibited interactive gambling services with Australian-customer links provided in contravention of s 15(2A) of the IGA.

(b)    As the statutory regulator responsible for the civil enforcement of the IGA, the ACMA has a real interest in bringing the proceedings.

(c)    As the person alleged to have contravened the law (and the subject of the proposed declaration), Mr Buttigieg is a proper contradictor. This remains so notwithstanding his admissions and agreement: see, for example, Electoral Commissioner v McQuestin [2024] FCA 287 at [23].

57    A grant of declaratory relief would signal the Court’s disapproval of the contravening conduct and make clear to the public the unlawful nature of Mr Buttigieg’s conduct. As the Full Court observed in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68 at [93]:

Declarations relating to contraventions of legislative provisions are likely to be appropriate where they serve to record the Court’s disapproval of the contravening conduct, vindicate the regulator’s claim that the respondent contravened the provisions, assist the regulator to carry out its duties, and deter other persons from contravening the provisions...

58    It is appropriate to make the declaration substantially in the form agreed by the parties.

Injunctive relief

59    Section 15(2A) of the IGA is enforceable under Part 7 of the Regulatory Powers Act, which creates a framework for the use of injunctions for the enforcement of provisions: see s 64D(1)(a) of the IGA and s 117 of the Regulatory Powers Act.

60    Pursuant to s 121(1) of the Regulatory Powers Act, if a person has engaged in conduct in contravention of a provision enforceable under Part 7, the Court may, on application by an authorised person, grant an injunction, “restraining the person from engaging in the conduct”. The ACMA is an “authorised person” and the Federal Court is a “relevant court” for the purposes of Part 7 of the Regulatory Powers Act: see s 64D(2)-(3) of the IGA.

61    Mr Buttigieg has admitted engaging in conduct in contravention of s 15(2A) of the IGA. The injunction sought by the parties has utility as it guards against any risk of Mr Buttigieg engaging in the conduct the subject of the proceedings in the future. It is appropriate to grant the injunctive relief that is proposed.

Conclusion

62    I will grant the declaratory and injunctive relief sought by the parties. I will also order that Mr Buttigieg pay a pecuniary penalty of $240,000 to the Commonwealth.

63    The ACMA and Mr Buttigieg have agreed that each party should bear their own costs.

Associate:    

Dated:    6 July 2026

SCHEDULE OF PARTIES