Australian Capital Territory Bills Explanatory Statements Australian Capital Territory Bills Explanatory Statements[Index] [Search] [Download] [Bill] [Help]
2018
LEGISLATIVE
ASSEMBLY
FOR THE
AUSTRALIAN CAPITAL
TERRITORY
CASINO AND OTHER GAMING
LEGISLATION AMENDMENT BILL 2018
EXPLANATORY
STATEMENT
Presented by
Gordon Ramsay
MLA
Attorney-General
CASINO AND OTHER GAMING
LEGISLATION AMENDMENT BILL 2018
INTRODUCTION
This explanatory statement relates to the Casino and
Other Gaming Legislation Amendment Bill 2018 (the Bill) as presented to the ACT
Legislative Assembly. It has been prepared in order to assist the reader of the
Bill and to help inform debate on it. It does not form part of the Bill and has
not been endorsed by the Assembly. The Statement must be read in conjunction
with the Bill. It is not, and is not meant to be, a comprehensive description of
the Bill. What is said about a provision is not to be taken as an authoritative
guide to the meaning of a provision, this being a task for the
courts.
The Bill provides for additional probity measures for certain
Ministerial decisions made under the Casino Control Act 2006 and the
Casino (Electronic Gaming) Act 2017; provides for a new Casino
(Electronic Gaming) Regulation 2018 and makes other amendments to support
the commencement of the Casino (Electronic Gaming) Act; provides for harm
minimisation requirements to apply to gaming machines operated in close
proximity to the casino, where the licensee is related to the casino; and delays
the commencement of Schedule 1 of the Gaming Machine (Reform) Amendment Act
2015 so that phase 2 of the gaming machine trading scheme does not commence
as scheduled on 31 August 2018.
BACKGROUND
The Casino
Control Act 2006 provides for the licensing and regulation of the casino.
Under this Act, only one casino licence can be issued in the ACT. Decisions
about the casino’s ownership, leasing of the casino, and the grant or
transfer of the casino licence rest with the Minister under this Act. On 13
April 2018, the Government announced that an independent panel would be
established to make a recommendation to the Minister about these decisions as an
additional probity measure.
The Casino (Electronic Gaming) Act
2017 regulates electronic gaming at the casino, including the operation of
casino gaming machines and Fully Automated Table Game (FATG) terminals, in the
context of a redevelopment of the casino and its precinct. The Act provides for
strict harm minimisation requirements for casino gaming machines, including
$2 maximum bet limits, mandatory pre-commitment and connection to a central
monitoring system. The Government’s announcement on 13 April 2018
also indicated that an independent panel will make a recommendation to the
Minister about the conversion of restricted authorisations to casino gaming
machine authorisations and casino FATG terminal authorisations, to allow
electronic gaming operations to commence once the casino has completed the
required stage of redevelopment as set by regulation. The Act is scheduled to
commence no later than 13 May 2018, its default commencement date.
The
Gambling and Racing Control Act 1999 provides the overarching legislative
framework for gambling in the Territory. The Act establishes the ACT Gambling
and Racing Commission (the Commission) with a governing board. The Commission
has responsibility for administration of gaming laws and control, supervision
and regulation of gaming in the Territory. Through amendments introduced by the
Casino (Electronic Gaming) Act, the Gambling and Racing Control Act will provide
for the maximum number of authorisations for electronic gaming (including gaming
machines in clubs, hotels and the casino) in the ACT.
The Gaming
Machine Act 2004 regulates the licensing of class C (club) and class B
(hotel) gaming machine operators, venues and gaming machines.
The
Gaming Machine (Reform) Amendment Act 2015 (the Reform Act)
introduced the trading scheme for gaming machine authorisations. This included
the introduction of a two phased reduction of gaming machine authorisations
across the Territory, with a ratio of 15 gaming machine authorisations per
1,000 adults to commence no later than 31 August 2018, along with
associated compulsory surrender requirements to ensure the number of
authorisations held by licensees did not exceed this ratio. In place of the
ratio, the Parliamentary Agreement for the 9th Legislative
Assembly for the Australian Capital Territory (the Parliamentary Agreement)
includes a commitment to reduce the number of gaming machine
‘licences’ (‘authorisations’ in the Gaming Machine Act
and the Casino (Electronic Gaming) Act) to 4,000 by 1 July 2020 and
work is currently underway on the pathway to achieve this
reduction.
OVERVIEW OF THE BILL
The Bill provides
for:
• the establishment of a Casino Advisory Panel, when required, to
make a recommendation to the Minister (currently the Attorney-General) in
relation to a decision under the Casino Control Act and the Casino (Electronic
Gaming) Act about the:
o ownership or leasing of the casino,
including amendment of a casino lease
o grant or transfer of the
casino licence
o conversion of restricted authorisations to allow
the operation of casino gaming machines or casino FATG terminals
• a
new Casino (Electronic Gaming) Regulation 2018 that sets out requirements for
social impact assessments and clarifies the definition of a casino gaming
machine
• moving the register of licences, authorisation certificates
and authorisations from the Gaming Machine Act to the Gambling and Racing
Control Act to support the commencement of the Casino (Electronic Gaming)
Act
• a new gaming machine licence condition under the Gaming Machine
Act to ensure that harm minimisation measures applicable to casino gaming
machines cannot be circumvented
• a delay to the commencement of
Schedule 1 of the Gaming Machine (Reform) Amendment Act so that phase 2 of the
gaming machine trading scheme (which introduces a ratio of 15 gaming machine
authorisations per 1,000 adults) does not commence on 31 August 2018, to
allow time for the pathway to achieve the Government’s commitment to
reduce gaming machine authorisations to 4,000 by 2020 to be developed and
implemented.
The amendments in the Bill will commence on the day after
its notification.
The Bill amends the:
• Casino Control Act
2006
• Casino (Electronic Gaming) Act
2017
• Gambling and Racing Control Act
1999
• Gaming Machine Act 2004
• Gaming Machine
(Reform) Amendment Act 2015.
HUMAN RIGHTS IMPLICATIONS
During the Bill’s development due
regard was given to its compatibility with human rights as set out in the
Human Rights Act 2004 (HRA). Measures introduced in the Bill support the
Government’s commitment to reduce gambling harm.
Section 11(1) of
the HRA provides that the family is the natural and basic group unit of society
and is entitled to be protected by society. The Bill will provide a measure
of protection of the family and children, through taking steps to ensure the
integrity of casino operations within the Territory, that the operation of
electronic gaming at the casino is associated with the redevelopment of the
casino and its precinct, and that the strong harm minimisation measures
introduced by the Casino (Electronic Gaming) Act are not
circumvented.
New sections 136E and 136G within clause 9 of the Bill,
which restrict eligibility for appointment to a Casino Advisory Panel and
require the disclosure of Panel members’ interests, engage the right to
privacy and reputation (section 12 HRA).
The inclusion of the additional
licence condition in division 3.3 of the Gaming Machine Act, through clause 29
of the Bill, may be seen as engaging the presumption of innocence until proven
guilty (rights in criminal proceedings, section 22(1) HRA), as it is a strict
liability offence if a licensee fails to comply with a licence
condition.
An assessment of the Bill against section 28 of the HRA is
provided below.
A Compatibility Statement under the HRA has been
issued for the Bill by the Attorney-General.
Section 28 Human Rights
Act Assessment
Section 28 of the HRA provides that human rights
are subject only to reasonable limits set by laws that can be
demonstrably justified in a free and democratic society. Section 28(2) of
the HRA provides that in deciding whether a limit on a human right is
reasonable, all relevant factors must be considered, including:
(a) the
nature of the right affected;
(b) the importance of the purpose of the
limitation;
(c) the nature and extent of the limitation;
(d) the
relationship between the limitation and its purpose; and
(e) any less
restrictive means reasonably available to achieve the purpose the limitation
seeks to achieve.
Right to privacy and reputation, section 12 –
Panel members’ eligibility for appointment and disclosure of
interests
The nature of the right affected
Section 12 (Privacy
and reputation) of the Human Rights Act 2004 provides that everyone has
the right not to have his or her privacy, family, or home or correspondence
interfered with unlawfully or arbitrarily, and not to have his or her reputation
unlawfully attacked.
Clause 9 of the Bill will insert new part 8A in the
Casino Control Act, which provides for the establishment of Casino Advisory
Panels. A Panel’s function is to make a recommendation to the Minister
about certain Ministerial decisions under the Casino Control Act and the Casino
(Electronic Gaming) Act, being decisions related to the ownership or leasing of
the casino, the grant or transfer of the casino licence, and the conversion of
restricted authorisations to allow the operation of casino gaming machines or
casino FATG terminals.
New section 136E(3) inserted by clause 9 of the
Bill provides that the Minister must not appoint a person to be a member of a
Casino Advisory Panel where the Minister is satisfied on reasonable grounds
that:
(a) the person or the person’s domestic partner has an interest
in a business subject to a gaming law; or
(b) the person is unlikely to be
able to properly exercise the functions of a member because of the
person’s business association, financial association or close personal
association with someone else; or
(c) the person has been convicted or found
guilty of an offence against a gaming law or a corresponding law; or
(d) within 5 years before the proposed appointment, the person has been
convicted, or found guilty, of an offence in Australia punishable by
imprisonment for at least 1 year; or
(e) within 5 years before the proposed
appointment, the person has been convicted, or found guilty, of an offence
outside Australia that, if it had been committed in the ACT, would have been
punishable by imprisonment for at least 1 year.
Clause 9, new section
136G provides for the disclosure of interests by Panel members, including in
relation to financial and personal interests.
In order for a person to be
a Panel member, they may need to disclose information about their current
interests and associations, their partner’s business interests and their
criminal history. These requirements engage the right to privacy and
reputation.
The importance of the purpose of the
limitation
Personal, financial and criminal history information is
necessary to ensure that the Minister can identify persons that are unsuitable
for appointment to the Panel as they should not be associated with licensed
gambling activities in the Territory.
There is a real risk of criminal or
unethical activity in connection with the operation of a casino. While a Casino
Advisory Panel’s power is restricted to making a recommendation to the
Minister about the relevant Ministerial decision, it is important that such a
recommendation be as independent and impartial as possible, and that the
community can be confident that it has not been improperly
influenced.
The provision of Panel members’ personal information,
including criminal history, is considered necessary and reasonable to ensure the
integrity of the gambling industry in the Territory is maintained, and to
minimise the risk of criminal and unethical behaviour influencing key decisions
about the casino. Eligibility provisions are a common feature of gaming and
racing legislation and have previously been assessed as compatible with human
rights.
The nature and extent of the limitation
The disclosure
of a Casino Advisory Panel members’ interests is limited to those matters
in relation to a Ministerial decision about which the advisory panel is to make
a recommendation, and where the interest could conflict with the proper exercise
of the Panel’s functions in relation to making the recommendation. As a
result, it is only information relevant to appointment as a Casino Advisory
Panel member that is captured by the requirement.
Strong safeguards are
in place for the handling, confidentiality, and permitted disclosures of
information acquired by a person under a gaming law under Division 4.4 (Secrecy)
of the Gambling and Racing Control Act. Unauthorised disclosure is an offence,
with a maximum penalty of 50 penalty units, imprisonment for 6 months or both.
In addition, a Casino Advisory Panel will need to comply with the Territory
Privacy Principles under the Information Privacy Act 2014 in relation to
any personal information obtained.
The relationship between the
limitation and its purpose
The provision of personal and financial
information and the disclosure of interests is an essential part of determining
whether a person is suitable for appointment to, or ongoing involvement in, a
Casino Advisory Panel. Due consideration was given to the appropriateness of
restrictions on Panel membership, however, in the interest of integrity, it is
considered that the provision of this information is necessary to assist the
Minister in appointing a Panel that can provide an independent, impartial
recommendation on the relevant Ministerial decision.
Less restrictive
means reasonably available to achieve the purpose
In developing the
legislation an assessment was made as to whether any less restrictive means were
available to achieve the purpose of the provisions. There is no less restrictive
means reasonably available as the provision of Panel members’ information
is an important part of determining the suitability of persons for appointment
to, and ongoing involvement in, the Casino Advisory Panel. The provisions mirror
the requirements for membership of the Gambling and Racing Commission Governing
Board.
It is important to note also that there is no compulsion on a
person to seek or accept appointment to Panel membership where they do not wish
to disclose such information.
To the extent that the requirement to
disclose information in connection with Panel membership engages a
person’s right to privacy and reputation, it is likely to be reasonable
and demonstrably justified in a free and democratic society. It is important
that the Minister is aware of Panel members’ interests, associations and
criminal history to uphold the integrity of decisions associated with the
casino. Existing restrictions on the use and disclosure of information obtained
under a gaming law operate to mitigate the human rights impacts.
Right
to privacy and reputation, section 12 – Sharing information with the
Casino Advisory Panel
The nature of the right affected
Section
12 (Privacy and reputation) of the Human Rights Act 2004 provides that
everyone has the right not to have his or her privacy, family, or home or
correspondence interfered with unlawfully or arbitrarily, and not to have his or
her reputation unlawfully attacked.
As noted above, clause 9 of the Bill
will insert new part 8A in the Casino Control Act, which provides for the
establishment of Casino Advisory Panels. A Panel’s function is to make a
recommendation to the Minister about certain Ministerial decisions under the
Casino Control Act and the Casino (Electronic Gaming) Act, being decisions
related to the ownership or leasing of the casino, the grant or transfer of the
casino licence and the conversion of restricted authorisations to allow the
operation of casino gaming machines or casino FATG terminals.
New section
136B(2)(b) provides that a Casino Advisory Panel can ask any of the following
for information to assist the Panel to make a recommendation to the Minister
about a Ministerial decision listed in section 136A:
(a) the
Commission
(b) the Planning and Land Authority
(c) the Chief Police
Officer
(d) a Commonwealth, State or Territory authority
(e) anyone else
prescribed by regulation.
New section 136C(1) provides for the sharing of
information held by the following ‘information holders’:
(a) the
Commission
(b) the Planning and Land Authority
(c) a Territory
authority
(d) anyone else prescribed by regulation.
Under new section
136C(2), an information holder must comply with the request as far as is
practicable.
New section 136C(3) provides that an information holder that
gives a Panel information under section 136C does not contravene any duty of
confidentiality the information holder has under a Territory law or agreement,
despite anything to the contrary in the law or agreement.
These sections
are intended to ensure that the Panel is able to access information held by the
Commission, the Planning and Land Authority, any other Territory authorities or
other entities that is relevant to the recommendation that the Panel has been
appointed to make to the Minister about the relevant Ministerial decision. The
sections are not intended to confer a broad power on the Panel, rather section
136B(2) provides that the Panel’s ability to ask for information is
limited to circumstances where it assists the Panel in making a recommendation.
Similarly, section 136C(1) applies to limit the section to requests where the
information will assist the Panel to make a recommendation.
Some of the
information likely to be sought by a Casino Advisory Panel to assist it in
making a recommendation will relate to the casino licensee or a proposed casino
licensee. Under sections 21 and 30 of the Casino Control Act, the casino
licensee must be a corporation. In sharing relevant information about a
corporation, it is noted that the right to privacy and reputation is not
engaged.
However, under section 8 of the Casino Control Act, a
corporation is an eligible person where each executive officer and influential
person of the corporation is an eligible person. Section 9 of the Casino Control
Act provides the definition of influential person, which includes executive
officers (including of a related corporation), influential owner/s and those who
can exercise influence over the conduct of the corporation.
As a result,
in considering casino ownership and leasing decisions, and whether a corporation
is eligible to be granted or transferred a casino licence, the individuals
associated with the licensee or proposed licensee must also be considered
eligible persons. The eligibility of individuals is set out in section 7 of the
Casino Control Act, and includes consideration of a range of disqualifying
grounds, including where the person has committed certain offences and has been
bankrupt or insolvent, or involved in the management of a corporation that has
been subject to a winding-up order.
It may therefore be necessary for the
Panel to have access to certain personal and financial information about
potential casino owners, lessees and licensees in order to enable the Panel to
make a recommendation to the Minister. This information is most likely held by
the Gambling and Racing Commission and other Territory authorities.
The
information to be requested from the Planning and Land Authority would relate to
the decision about conversion of restricted authorisations under section 22(1)
of the Casino (Electronic Gaming) Act. Given the nature of that decision, it
involves the casino licensee only (a corporation) and would be limited to
information about a development application and progress of the redevelopment of
the casino and its precinct.
The importance of the purpose of the
limitation
The provision of personal and financial information of an
individual, including relevant criminal history, engages the right to privacy
and reputation. Provisions of this nature are not uncommon in licensing
legislation where, for the purposes of protecting the public, the integrity of
applicants and licensees must be rigorously assessed.
Personal
information is necessary to ensure the effectiveness of regulation and
enforcement of the gambling industry. Casino operations carry a real risk of
criminal or unethical activity. The ability for the Panel to receive information
about the individuals potentially involved in owning or leasing the casino, or
holding the casino licence, is critical to the Panel’s ability to perform
its function of making a recommendation to the Minister.
The nature
and extent of the limitation
New section 136B provides that a Casino
Advisory Panel can only request information from an information holder to assist
it to make a recommendation to the Minister about the specified decisions
outlined in section 136A. The Panel does not have a general power to seek
information and, in fact, since a Panel will only be appointed when the Minister
is making one of the Ministerial decisions listed in section 136A, the
Panel’s ability to request information will be limited to information
relevant to the specific decision about which the Panel is making a
recommendation to the Minister.
As set out in the note under new section
136B(2), a member of a Casino Advisory Panel who acquires confidential documents
or information under the Casino Control Act is a gaming officer for the purposes
of the Gambling and Racing Control Act, division 4.4 (Secrecy). Under this
division, unauthorised disclosure of confidential information is an offence,
with a maximum penalty of 50 penalty units, imprisonment for 6 months or
both.
This provision is not intended to displace the Territory Privacy
Principles set out in Schedule 1 of the Information Privacy Act, and a
Casino Advisory Panel will need to consider compliance with the Principles in
establishing its procedures.
While section 136I(1) requires a
Panel’s report to be tabled, section 136I(2) provides that the Minister
must divide the report into two documents – a protected section and a
disclosable section – where the report includes information that is
‘contrary to the public interest information’ under the Freedom
of Information Act 2016. As a result, any sensitive personal information
obtained by a Panel will be protected from disclosure. The Panel may also decide
that it is necessary to withhold other personal information from the report
where disclosure would prejudice a person’s right to privacy, in
accordance with schedule 2.2(a)(ii) of the Freedom of Information
Act.
The relationship between the limitation and its
purpose
Careful consideration was given to the nature and function of a
Casino Advisory Panel and the powers that would be appropriate to an advisory
panel. The intent of a Panel is to provide an independent recommendation to the
Minister about a specific decision for which the Panel has been appointed. The
provision of information to the Panel is essential to the Panel being able to
perform its statutory function.
Less restrictive means reasonably
available to achieve the purpose
In developing the Bill an assessment was
made as to whether any less restrictive means were available to achieve the
purpose of the information sharing provisions. There is no less restrictive
means reasonably available as access to information about the existing or
proposed casino owner, proposed casino lessee, or existing or proposed casino
licensee is an important element in forming a recommendation to the Minister.
For these purposes, the eligibility provisions are restricted to those persons
at the highest level of the organisation, those that can exert control and
influence over the casino’s operations.
As a Ministerial advisory
panel, the Panel will not have its own investigative powers such as the power to
require the provision of documents or the giving of evidence, or entry, search
and seizure powers. These powers will remain with the Gambling and Racing
Commission (see Division 4.2 of the Gambling and Racing Control Act). Similarly,
the Planning and Land Authority retains sole power over the ability to certify
that the stage of development prescribed by regulation has been completed as
part of the decision on whether to convert restricted authorisations to allow
electronic gaming at the casino to commence.
It will not be possible for
the Panel to properly carry out its appointed statutory function of making a
recommendation to the Minister about the relevant Ministerial decision without
access to relevant information. When provided with information under section
136C, Panel members are bound by existing restrictions on the use and disclosure
of information obtained under a gaming law, including the secrecy provisions
under the Gambling and Racing Control Act and the Territory Privacy
Principles.
To the extent that the requirement to share information with
a Casino Advisory Panel relevant to a Ministerial decision about the ownership
or leasing of the casino or the grant or transfer of the casino licence engages
a person’s right to privacy and reputation, it is likely to be reasonable
and demonstrably justified in a free and democratic society.
Rights
in criminal proceedings ‐ presumption of innocence until proven guilty,
subsection 22(1)
The nature of the right affected
The
imposition of a licence condition in relation to gaming machines operated near
the casino under new section 52A of the Gaming Machine Act, through clause 29 of
the Bill, engages the existing strict liability offence in section 39 of the
Gaming Machine Act where a licensee fails to comply with a licence condition. As
a result, clause 29 of the Bill may be seen as engaging the presumption of
innocence until proven guilty (rights in criminal proceedings, section 22(1)
HRA).
Strict liability offences arise in a regulatory context where for
reasons such as consumer protection and public safety, the public interest in
ensuring that regulatory schemes are observed requires the sanction of criminal
penalties. In particular, where a defendant can reasonably be expected, because
of his or her professional involvement, to know what the requirements of the law
are, the mental, or fault, element can justifiably be excluded.
The
Criminal Code 2002, chapter 2 applies to strict liability offences in the
Gaming Machine Act (see Code, part 2.1). Chapter 2 sets out the general
principles of criminal responsibility (including burdens of proof and general
defences), and defines terms used for offences to which the Code applies
(e.g. ‘conduct’, ‘intention’,
‘recklessness’ and ‘strict liability’).
It is
relevant to note that the licence condition introduced by clause 29 applies only
to club licensees (class C licensees under the Gaming Machine Act). All class C
gaming machine licensees operate within a corporate or incorporated association
structure.
In addition, section 39(4) of the Gaming Machine Act provides
a ‘reasonable steps’ defence to the strict liability
offence.
The importance of the purpose of the limitation
The
rationale for the application of the existing strict liability offence to the
new licence condition is to ensure that any gaming machines operated in the
casino or its precinct are operated in accordance with the harm minimisation
measures introduced in the Casino (Electronic Gaming) Act
2017.
The potential risks of ineffective regulation of access to, and
the operation of, gaming machines and FATG terminals include unregulated
gambling in an environment where gambling harm minimisation and other consumer
protection measures are not in place, as well as loss of revenue to the ACT
Government and community.
The ACT, like other jurisdictions, has in
place comprehensive regulatory requirements for the operation of gaming venues
and gaming equipment. These are important controls, not only for the protection
of consumers of gaming products, but also to reduce other risks and criminal
behaviour associated with illegal or underground gambling.
Reducing
gambling harm has benefits for the person, the person’s family and the
broader community. It is important that licensees comply with the harm
minimisation measures established through the Bill’s provisions in order
for these benefits to be realised.
The existing strict liability offences
under section 39 of the Gaming Machine Act carry a maximum penalty of 100
penalty units. This level of penalty is commensurate with the strong compliance
regime provided under gaming legislation and, in particular, it aligns with the
offences in section 26 and part 7 of the Casino (Electronic Gaming) Act which
require casino gaming machines to comply with stringent harm minimisation
measures including a maximum bet limit of $2 and mandatory pre-commitment. At
the time these penalties were set, due regard was given to the guidance provided
in the Guide for Framing Offences that the maximum penalty is usually
limited to 50 penalty units, however, for reasons of consumer protection, harm
minimisation and maintaining the integrity of the industry (and noting the
significant potential revenue of gaming machines), it was considered necessary
and appropriate to provide a higher penalty as a strong deterrent to
non-compliance.
The nature and extent of the limitation
The
impact on human rights is reduced through the fact that the strict liability
offence in section 39 of the Gaming Machine Act, as it relates to new section
52A, would apply only to club licensees – not to individual staff members
at authorised premises. A licensee, as the person who has ultimate
responsibility for the management of authorised premises, is responsible for the
provision and operation of gaming machines.
The offence provision in
section 39 of the Gaming Machine Act does apply to class B licensees (hotels and
taverns), which in very limited circumstances can be an individual operating as
a sole trader - but there are currently no class B licensees that are
individuals, as they are all operating through a corporate structure. However,
new section 52A introduced through clause 29 of the Bill has been developed so
that it applies only to club licensees. As indicated above, all club licensees
operate within a corporate or incorporated association structure. As a result,
new section 52A does not impose on individuals any new requirements that are
subject to a strict liability offence.
Section 39(4) of the Gaming
Machine Act also provides that the offence does not apply where a licensee can
show they took all reasonable steps to comply with a requirement of the
condition.
The relationship between the limitation and its
purpose
The operation of gaming machines is a highly regulated activity
in the interests of consumer protection, industry integrity and harm
minimisation. The overriding rationale for the strict liability offence in
section 39 of the Gaming Machine Act is to ensure that gaming machine licensees
comply with any conditions imposed on their licence, whether imposed by the
Gambling and Racing Commission or through gaming legislation.
Strict
liability offences are an important element in ensuring the policy intent of the
requirements relating to the operation of gaming machines in the casino and its
precinct are realised. The potential effect on the Government’s harm
minimisation strategies and, as a consequence, the potential effect on club
patrons, gaming machine players and gambling harm of a failure by a gaming
machine licensee to comply with the restrictions on the operation of gaming
machines near the casino are the justification for new section 52A (introduced
by clause 29 of the Bill) being a licence condition that is subject to the
strict liability offence in section 39 of the Gaming Machine Act.
Less
restrictive means reasonably available to achieve the purpose
In
developing the Bill an assessment was made as to whether any less restrictive
means were available to achieve the purpose of new section 52A (clause 29 of the
Bill). There is no less restrictive means available to ensure that the harm
minimisation measures provided for under the Casino (Electronic Gaming) Act are
not undermined.
While making new section 52A a licence condition does
engage the strict liability offence in section 39 of the Gaming Machine Act, a
number of defences remain open to an accused, depending on the particular facts
of each case. Section 23 (1) (b) of the Criminal Code 2002 specifically
provides that the defence of mistake of fact under section 36 of the Code is
available to strict liability offences, noting also section 53 of the Code.
Subsection 23(3) of the Criminal Code provides that other defences may also
apply to strict liability offences, which includes the defence of intervening
conduct or event, as provided by section 39 of the Criminal Code (noting
section 54). In addition, as noted above, section 39(4) provides a specific
‘reasonable steps’ defence.
Any limitation that the
introduction of new section 52A creates through engaging the existing strict
liability offence in section 39 of the Gaming Machine Act is considered
reasonable and proportionate, noting the public interest benefits in ensuring
compliance of gaming machine licensees with provisions that support gambling
harm reduction.
As indicated above, it is also significant to note that
section 52A will apply only to club licensees (class C licensees), which are not
individuals. Under section 15 of the Gaming Machine Act, only clubs can apply to
be a class C gaming machine licensee, and the definition of a club in that Act
is ‘a corporation or incorporated association established for the benefit
of members to achieve eligible objects’.
It is reasonable to expect
that licensees know, or ought to know, their legal obligations. The operation of
gaming machines is clearly a regulated activity within the scope of the decision
in R v Wholesale Travel Group Inc [1991] 3 SCR 154.
Any
penalty resulting from a breach of section 39 as a result of a failure to comply
with the licence condition introduced by new section 52A (clause 29 of the Bill)
will apply only to a corporation or incorporated association, not an individual.
As a result, it is considered that the introduction of the new licence condition
does not trespass on any individual’s fundamental human right as set out
in subsection 22(1) of the HRA.
Revenue/Cost Implications
Other
than costs associated with the Casino Advisory Panels, there are no other direct
revenue or cost implications arising from the Bill.
CLAUSE
NOTES
Part 1 - Preliminary
Clause 1 Name of
Act
This clause is a formal provision setting out the name of the Act as
the Casino and Other Gaming Legislation Amendment Act 2018 (the
Act).
Clause 2 Commencement
This clause provides that the Act
will commence on the day after it is notified on the Legislation
Register.
Clause 3 Legislation amended
This clause identifies
that the following legislation will be amended by the Act:
• Casino
Control Act 2006
• Casino (Electronic Gaming) Act 2017
• Gambling and Racing Control Act 1999
• Gaming Machine Act 2004
• Gaming Machine
(Reform) Amendment Act 2015.
Part 2 – Casino Control Act
2006
Clause 4 Approval of proposed owner
Section 13
(2)
Division 2.2 of the Casino Control Act regulates ownership of the
casino. In accordance with section 11, an owner of the casino must an eligible
person and able to carry out their obligations as an owner of the casino.
Under section 12 of the Casino Control Act, an owner of the casino
may apply in writing to the Minister for approval to sell or otherwise dispose
of the owner’s interest in the lease of the casino, or part of the
interest, to someone else. Section 13(1) provides that the Minister must
approve, or refuse to approve, the sale or other disposal of an owner’s
interest in the lease of the casino, or part of the interest, to the proposed
owner.
Clause 4 replaces the existing section 13(2) of the Casino
Control Act to provide that in deciding whether to approve the sale or other
disposal of the casino, the Minister must consider any recommendation made by
the Gambling and Racing Commission about the sale or disposal; and any
recommendation made by a Casino Advisory Panel about the sale or disposal,
including whether it is in the public interest.
While the Minister is
required to take into account a recommendation made by the Gambling and Racing
Commission or a Casino Advisory Panel under this provision, the amendments to
section 141 under clauses 10, 11 and 12 of the Bill provide that the
Minister can accept a recommendation, reject a recommendation or refer the
matter back to the Commission or the Panel for further investigation or
consideration.
Section 13(3) continues to provide that the Minister must
not approve the sale or disposal unless satisfied that the proposed owner is an
eligible person and that the proposed owner will become a party to a control
agreement where that is required under section 19.
Section 19 of the
Casino Control Act provides that a control agreement, approved by the Minister,
must be in force between the owner of the casino lessee (if any) and the casino
licensee if they are not all the same person (noting that person includes
a corporation under section 160 of the Legislation Act 2001).
A
decision under section 13(1) to refuse to approve the change of ownership is a
reviewable decision (see section 137 and schedule 1 of the Casino Control
Act).
Clause 5 Approval of proposed casino lease
Section 16
(2)
Division 2.3 of the Casino Control Act regulates leasing of the
casino.
Under section 15 of the Casino Control Act, the owner of the
casino may apply to the Minister for approval to enter into a lease of the
casino with someone else. Section 15(2) requires that the application must be
made in writing and be accompanied by the proposed lease, the name and contact
details of the proposed lessee, and particulars of the financial standing,
relevant managerial experience and business reputation of the proposed
lessee.
Section 16(1) provides that the Minister must approve, or refuse
to approve, the owner of the casino entering into the proposed lease of the
casino with the proposed lessee.
Clause 5 replaces the existing
section 16(2) of the Casino Control Act to provide that in deciding whether to
approve owner entering into the proposed lease with the proposed lessee, the
Minister must consider any recommendation made by the Gambling and Racing
Commission about the proposed lease with the proposed lessee; and any
recommendation made by a Casino Advisory Panel about the proposed lease with the
proposed lessee, including whether it is in the public interest.
While
the Minister is required to take into account a recommendation made by the
Gambling and Racing Commission or a Casino Advisory Panel under this provision,
the amendments to section 141 under clauses 10, 11 and 12 of the
Bill provide that the Minister can accept a recommendation, reject a
recommendation or refer the matter back to the Commission or the Panel for
further investigation or consideration.
Section 16(3) continues to
provide that the Minister must not approve the proposed lease with the proposed
lessee unless satisfied that the proposed lessee is a corporation, an eligible
person, can carry out its obligations as the casino lessee and that the
conditions of the proposed lease are satisfactory in relation to the control and
operation of the casino.
A decision under section 16(1) of the Casino
Control Act to refuse to approve the proposed lease of the casino with the
proposed lessee is a reviewable decision (see section 137 and schedule 1 of the
Act).
Clause 6 Approval of amendment of casino lease
Section
18 (2)
Under section 17 of the Casino Control Act, the parties to a
casino lease may apply to the Minister for approval to amend the lease. Section
17(2) requires that the application must be in writing signed by the parties to
the lease and be accompanied by the proposed amendment of the
lease.
Section 18(1) provides that the Minister must approve, or refuse
to approve, the amendment of the casino lease.
Clause 6 replaces
the existing section 18(2) of the Casino Control Act to provide that in deciding
whether to approve a proposed amendment of the casino lease, the Minister must
consider any recommendation made by the Gambling and Racing Commission about the
amendment; any recommendation made by a Casino Advisory Panel about the
amendment, including whether it is in the public interest; and the likely effect
of the amendment on the control and operation of the casino.
While the
Minister is required to take into account a recommendation made by the Gambling
and Racing Commission or a Casino Advisory Panel under this provision, the
amendments to section 141 under clauses 10, 11 and 12 of the Bill
provide that the Minister can accept a recommendation, reject a recommendation
or refer the matter back to the Commission or the Panel for further
investigation or consideration.
A decision under section 18(1) of the
Casino Control Act to refuse to approve the amendment of the casino lease is a
reviewable decision (see section 137 and schedule 1 of the
Act).
Clause 7 Grant of casino licence
Section 21
(4)
Division 3.1 of the Casino Control Act provides for the grant of the
casino licence. Section 20 of the Act provides that only one casino licence can
be in force at any time, and that the licence applies to one casino
only.
Under section 21(1) of the Casino Control Act, the Minister
may invite applications for a casino licence, and under section 21(2), the
Minister may grant or refuse to grant a casino licence to an
applicant.
Section 21(3) provides that the Minister must not grant a
casino licence to a person unless the person is a corporation, is an eligible
person and is either:
• the casino lessee (where there is a casino
lease approved under section 16) or corporation nominated by the casino lessee;
or
• the owner of the casino or a corporation nominated by the owner
of the casino.
Clause 7 replaces the existing section 21(4) of the
Casino Control Act to provide that in deciding whether to grant a casino
licence, the Minister must consider any recommendation made by the Gambling and
Racing Commission about the eligibility of a corporation nominated as the
proposed casino licensee; and any recommendation made by a Casino Advisory Panel
about the eligibility of a corporation nominated as the proposed casino
licensee, including whether granting a casino licence to the proposed casino
licensee is in the public interest. New section 21(4)(c) retains the requirement
in existing section 21(4)(b) that the Minister must also comply with any
criteria prescribed by regulation in relation to the grant of the casino
licence.
While the Minister is required to take into account a
recommendation made by the Gambling and Racing Commission or a Casino Advisory
Panel under this provision, the amendments to section 141 under clauses
10, 11 and 12 of the Bill provide that the Minister can accept a
recommendation, reject a recommendation or refer the matter back to the
Commission or the Panel for further investigation or consideration.
A
decision under section 21(2) of the Casino Control Act to refuse to grant a
casino licence is a reviewable decision (see section 137 and schedule 1 of the
Act).
Clause 8 Transfer of casino licence
Section 30 (4)
(c)
Division 3.3 of the Casino Control Act provides for the transfer and
surrender of the casino licence.
Under section 29 of the Casino
Control Act, the casino licensee may apply to the Minister to transfer the
casino licence to another corporation. Section 29(2) requires that the
application must be in writing signed by the casino licensee and be accompanied
by a signed consent to transfer by the person (if any) who nominated the
licensee under section 21(3)(b) – that is, the consent of the casino
lessee where there is a casino lease, or the casino owner in any other
case.
Under section 30(1), the Minister must transfer the casino licence,
refuse to transfer the licence or ask for further information about the proposed
transfer.
In accordance with sections 30(2) and (3), a request for
further information must be in writing and state a reasonable time within which
the further information must be given. Where further information has been
requested, the Minister must not approve or refuse to approve the transfer of
the licence until either the information has been received or the time for
giving the information has passed.
Sections 30(4)(a) and (b) provide that
the Minister may approve the transfer of the casino licence if the licence is
not suspended and there are no outstanding disciplinary notices relating to the
casino licence.
Section 30(4)(c) provides that the Minister may approve
the transfer of the casino licence if the prospective licensee would be granted
the casino licence under section 21. To assist the reader, clause 8
adds a note below existing section 30(4) of the Casino Control Act that
outlines the requirements for a proposed licensee under section 21 of the Act.
Through section 30(4)(c), the Minister must consider, among other matters, any
recommendation by the Gambling and Racing Commission and a Casino Advisory Panel
in relation to the proposed licensee’s eligibility, including any
recommendation made by a Panel about whether the transfer is in the public
interest.
While the Minister is required to take into account a
recommendation made by the Gambling and Racing Commission or a Casino Advisory
Panel under this provision, the amendments to section 141 under clauses
10, 11 and 12 of the Bill provide that the Minister can accept a
recommendation, reject a recommendation or refer the matter back to the
Commission or the Panel for further investigation or consideration.
A
decision under section 30(1) of the Casino Control Act to refuse to transfer the
casino licence is a reviewable decision (see section 137 and schedule 1 of the
Act).
Clause 9 New part 8A
Clause 9 inserts new part 8A
of the Casino Control Act, which provides for Casino Advisory Panels. New part
8A inserts new sections 136A to 136J into the Casino Control Act.
New
section 136A establishes the meaning of ‘Ministerial decision’ for
part 8A of the Casino Control Act, being decisions relating to
the:
• ownership of the casino under section 13 of the Casino Control
Act 2006
• a proposed lease of the casino under section 16 of the
Casino Control Act
• amendment of a casino lease under section 18 of
the Casino Control Act
• grant of a casino licence under section 21 of
the Casino Control Act
• transfer of the casino licence under section
30 of the Casino Control Act
• conversion of restricted authorisations
under section 22(1) of the Casino (Electronic Gaming) Act.
New section
136B provides for the establishment and functions of a Casino Advisory Panel.
Under new section 136B(1), before making a Ministerial decision, the Minister
must establish a Casino Advisory Panel to make a recommendation about the
decision.
New section 136B(2)(a) provides that a Casino Advisory Panel
may engage a person who has qualifications or experience relevant to the
decision to assist the Panel to make a recommendation.
New section
136B(2)(b) provides that a Casino Advisory Panel may ask the Gambling and Racing
Commission; the Planning and Land Authority; the Chief Police Officer; a
Commonwealth, State or Territory authority; or anyone else prescribed by
regulation for information to assist the Panel to make a recommendation to the
Minister about one of the Ministerial decisions set out in section
136A.
Under new section 136B(3) ‘information’ is defined to
mean information, whether true or not, in any form and includes an opinion or
advice. However, this provision does not extend to the sharing of legal advice
which remains subject to client legal privilege.
The Panel’s power
to ask for information is not a general power, it is limited to matters relevant
to the recommendation it has been established to make. As outlined in the
Human Rights Implications above, a Panel will require information to
enable it to carry out its function, but this information must be connected to
the relevant Ministerial decision.
New section 136C provides for the
sharing of information with a Casino Advisory Panel. Under new section 136C, the
section applies to certain ‘information holders’, being the Gambling
and Racing Commission, the Planning and Land Authority, a Territory authority or
anyone else prescribed by regulation.
While new section 136C(1)(d)
provides for a Panel to request information from anyone else by regulation, the
power in section 136C is also limited to requesting information from information
holders that will assist the Panel to make a recommendation to the Minister
about the relevant Ministerial decision under consideration – it is not a
general power to request any information from anyone.
In addition, for
the purpose of section 136C(1)(d), the Executive must make a regulation where
information may be requested from someone else. As such, the regulation will be
tabled and should the Legislative Assembly consider that it would be
unreasonable for a Casino Advisory Panel to ask for information from the person
set out in the regulation, the regulation could be disallowed.
In
accordance with new section 136C(2), where the Panel makes a request for
information to assist the Panel to make a recommendation, the information holder
must, as far as practicable, comply with the request.
New section 136C(3)
provides that where an information holder gives a Casino Advisory Panel
information under this section, it does not contravene any duty of
confidentiality the information holder has under a Territory law or agreement ,
despite anything to the contrary in the law or agreement. It is relevant to note
that Panel members and anyone assisting the Panel who acquires confidential
documents or information under this provision is a gaming officer for the
purposes of the Gambling and Racing Control Act, division 4.4 (Secrecy). Under
this division, unauthorised disclosure of confidential information is an
offence, with a maximum penalty of 50 penalty units, imprisonment for 6 months
or both. In addition, a Panel must comply with the Territory Privacy
Principles.
Under new section 136D(1) the Minister must appoint members
of a Casino Advisory Panel. New section 136D(2) provides that members are
appointed on a part-time basis.
New section 136D(3) provides that the
conditions of appointment for Panel members are the conditions stated in the
appointment, subject to any determination made under the Remuneration
Tribunal Act 1995.
Under new section 136E(1) a Casino Advisory Panel
must have three members.
New section 136E(2) sets out that Panel members
must have knowledge of and experience in at least one of the disciplines and
areas of expertise outlined in that section, including:
• law and
governance;
• integrity and probity assessments in relation to
significant changes in highly regulated industries;
• finance,
actuarial science or auditing;
• risk advisory services;
• urban design and planning;
• civil engineering and civil
works;
• property development;
• building work assessments;
• construction;
• building surveying;
• strategies
or services that reduce gambling harm;
• anything else prescribed by
regulation.
New section 136E(3) provides for circumstances in which a
person would be ineligible for appointment to be a member of a Panel, including
where a person or their domestic partner has an interest in a business subject
to a gaming law; where the person is unlikely to be able to properly exercise a
Panel member’s functions because of a business, financial or close
personal association; or where the person has been convicted or found guilty of
certain offences. These circumstances mirror the existing eligibility
requirements for members of the Gambling and Racing Commission Governing Board,
set out in section 12(2) of the Gambling and Racing Control Act. See also
the analysis in the Human Rights Implications section above.
While
new section 136E(3)(b) refers to business, financial and close personal
associations of a potential appointee to a Casino Advisory Panel, there is no
intention to unduly restrict freedom of association under section 15 of the
Human Rights Act 2004. The provision is aimed at ensuring that persons
appointed to a Casino Advisory Panel can provide an impartial recommendation to
the Minister about the relevant decision under consideration, and is restricted
to where the person is unlikely to be able to properly exercise the functions of
a Panel member because of a business, financial or close personal association
with someone else.
New section 136F provides that the Minister must
appoint a member of the Casino Advisory Panel as its Chair.
Section 136G
provides for the disclosure of interests of Casino Advisory Panel members and
persons assisting a Panel. Under section 136G(1), the section applies where a
Panel member or person assisting has a direct or indirect financial interest or
personal interest in a matter in relation to a Ministerial decision about which
the Panel is to make a recommendation, and the interest could conflict with the
proper exercise of the Panel’s functions in relation to making a
recommendation.
New section 136G(2) requires that as soon as practicable
after becoming aware of the relevant facts, the Panel member, person assisting
the Panel or the Panel must disclose the nature of the interest to the Minister.
Under new section 136G(3), the Panel member or person assisting the Panel must
not participate, or further participate, in making the recommendation to the
Minister, unless the Minister directs otherwise.
The disclosure
requirement under this section is limited to those matters relevant to the
decision about which the Panel has been established to make a recommendation.
See also the analysis in the Human Rights Implications section
above.
New section 136H requires a Casino Advisory Panel to prepare for
the Minister a report of its recommendation in relation to a Ministerial
decision.
Procedural fairness is provided to the applicant for the
Ministerial decision under new section 136H(2). Before giving its report to the
Minister, the Panel must give the applicant for the decision a copy of the
report and written notice stating that the applicant may give the Panel written
comments about the draft report, or request that an inaccuracy be corrected,
within the time stated in the notice.
New section 136I provides for the
tabling of a Casino Advisory Panel’s report in the Legislative Assembly
within six sitting days after the day the Minister tells the applicant for a
Ministerial decision about the decision.
If the Panel’s report
includes information that is ‘contrary to the public interest
information’ as defined in section 16 of the Freedom of Information Act
2016, new section 136I(2) requires the Minister to divide the report into
two documents:
• the ‘protected section’ – containing
the contrary to the public interest information
• the
‘disclosable section’ – containing the rest of the
report.
Under new section 136I(3) if the Minister divides a report, the
disclosable section must include a statement that there is a protected section
containing contrary to the public interest information and a general description
of the contents of the protected section.
New section 136I(4) provides
the signpost definition to the term ‘contrary to the public interest
information’.
New section 136J provides that a member of the Casino
Advisory Panel, and a person assisting a Panel, is protected from civil
liability for conduct engaged in honestly and without recklessness in the
exercise of a function under Part 8A of the Casino Control Act, or in the
reasonable belief that the conduct was in the exercise of a function under that
Part.
Under section 136J(2) any civil liability that would otherwise
attach to the Panel member, or person assisting the Panel, attaches instead to
the Territory.
Clause 10 Section 141 heading
As noted in clause
11 below, section 141 of the Casino Control Act currently provides that the
Executive or the Minister may accept or reject the Gambling and Racing
Commission’s recommendation in relation to a matter, or refer a matter
back to the Commission for further investigation or
consideration.
Clause 10 substitutes the heading of section 141 of
the Casino Control Act to align with the amendment made in clause 11 to provide
that the section applies to recommendations made by a Casino Advisory Panel as
well as recommendations made by the Gambling and Racing
Commission.
Clauses 11 and 12 Section 141 and Section
141(c)
Section 141 currently provides that if the Executive or the
Minister is required to consider any recommendations made by the Gambling and
Racing Commission about a matter, the Executive or the Minister may accept the
recommendation, reject the recommendation or refer the matter back to the
Gambling and Racing Commission for further investigation or
consideration.
Clauses 11 and 12 amend the existing section 141 of
the Casino Control Act to provide that the section applies to recommendations
made by the Gambling and Racing Commission or a Casino Advisory
Panel.
Under amendments introduced through clause 9 of the Bill, a
Casino Advisory Panel must be appointed by the Minister in relation to the
following Ministerial decisions:
• ownership of the casino under
section 13 of the Casino Control Act 2006
• a proposed lease of the
casino under section 16 of the Casino Control Act
• amendment of a
casino lease under section 18 of the Casino Control Act
• grant of a
casino licence under section 21 of the Casino Control Act
• transfer of
the casino licence under section 30 of the Casino Control
Act
• conversion of restricted authorisations under section 22(1) of
the Casino (Electronic Gaming) Act.
Clause 13 Regulation-making
power
New section 144 (2) (d)
Clause 13 inserts a new
paragraph (d) into the existing regulation-making power in section 144(2)
of the Casino Control Act. New section 144(2)(d) establishes that a
regulation made by the Executive may make provision in relation to Casino
Advisory Panels, including in relation to their procedures and reports. This
amendment is in line with clause 9 of the Bill, which inserts new part 8A
into the Casino Control Act to provide for Casino Advisory
Panels.
Clause 14 Dictionary, note 2
Clause 14 is a
technical amendment that adds the terms ‘chief police officer’,
‘Commonwealth’, ‘domestic partner
(see s 169(1)’, ‘planning and land authority’ and
‘State’ to note 2 of the Dictionary. These terms have the same
meaning as they have in the Legislation Act 2001.
Clause
15 Dictionary, new definitions
Clause 15 inserts new definitions
of ‘casino advisory panel’ and ‘Ministerial decision’
into the Dictionary of the Casino Control Act.
‘Casino Advisory
Panel’ is defined in section 136B, and ‘Ministerial decision’
is defined, for part 8A of the Casino Control Act only, in section
136A.
This amendment is consequential to the insertion of new part 8A
into the Casino Control Act by clause 9 of the Bill, which provides for a
Casino Advisory Panel to be established when the Minister is considering
decisions relating to the:
• ownership of the casino under section 13
of the Casino Control Act 2006
• proposed lease of the casino under
section 16 of the Casino Control Act
• amendment of a casino lease
under section 18 of the Casino Control Act
• grant of a casino licence
under section 21 of the Casino Control Act
• transfer of the casino
licence under section 30 of the Casino Control Act
• conversion of
restricted authorisations under section 22(1) of the Casino (Electronic Gaming)
Act.
Part 3 – Casino (Electronic Gaming) Act
2017
Clause 16 Restricted status of acquired
authorisations
Section 20, note 2
Section 20 of the Casino
(Electronic Gaming) Act provides than an authorisation acquired by the casino
licensee from a class B or class C gaming machine licensee becomes a restricted
authorisation when it is acquired.
A restricted authorisation cannot be
used to operate electronic gaming products at the casino – the casino
licensee must have either a casino gaming machine authorisation or a casino FATG
terminal authorisation respectively. Part 5 of the Casino (Electronic Gaming)
Act sets out the conversion process for a restricted authorisation to become
either a casino gaming machine authorisation or a casino FATG terminal
authorisation.
Clause 16 is consequential to the amendment in
clause 17 of the Bill and amends note 2 below section 20 of the Casino
(Electronic Gaming) Act so that it reflects that the casino licensee may apply
to the Minister, not the Gambling and Racing Commission, under section 21
for the conversion of restricted authorisations.
Clause 17 Conversion
of restricted authorisations—application
Section 21
(1)
Section 20 of the Casino (Electronic Gaming) Act provides than an
authorisation acquired by the casino licensee from a class B or class C gaming
machine licensee becomes a restricted authorisation when it is acquired. A
restricted authorisation cannot be used to operate electronic gaming products at
the casino – the casino licensee must have either a casino gaming machine
authorisation or a casino FATG terminal authorisation respectively.
Section 21 outlines the process for the casino licensee to apply for the
conversion of a restricted authorisation to a casino gaming machine
authorisation or a casino FATG terminal authorisation.
Clause 17
amends section 21(1) to provide that the casino licensee may apply to the
Minister for approval to have a restricted authorisation converted, rather than
the Gambling and Racing Commission. This amendment is in line with amendments
introduced by clause 9 of the Bill, which provide for Casino Advisory
Panels. Under new section 136A of the Casino Control Act, the conversion of a
restricted authorisation is a ‘Ministerial decision’ for which a
Casino Advisory Panel must be established under new section 136B.
Under
section 21(2) the application must be in writing, state the number of restricted
authorisations to be converted and the kind of authorisation to which the
restricted authorisations are to be converted, and be accompanied by the
required documents for the application.
Section 21(3) sets out the
required documents for the conversion application, including evidence from the
Planning and Land Authority that a development application has been approved in
relation to the redevelopment of the casino and the casino precinct, and that
the Authority has certified that the casino licensee has completed the stage of
development prescribed by regulation for the maximum number of restricted
authorisations to be converted. Other required documents align with existing
documents that a gaming machine licensee must provide in relation to an
authorisation certificate application, including a plan of the proposed gaming
area, the gaming rules and the control procedures the casino licensee has
adopted for the operation of casino gaming machines or casino FATG terminals.
For the casino licensee, these documents are not requested until the restricted
authorisations are converted to casino gaming machine authorisations and casino
FATG terminal authorisations.
Clause 18 Section 21 (4) and
(5)
The amendments in clause 18 of the Bill are consequential to
the amendment in clause 17. Each instance of the word
‘commission’ is replaced by ‘Minister’ in sections 21(4)
and (5) of the Casino (Electronic Gaming) Act.
Following the amendments
in clause 18, the Minister may require in writing additional information
from a casino licensee about a conversion application, and where the casino
licensee does not comply with a requirement within the time stated by the
Minister, the Minister may refuse to consider the application (amended
section 21(5)(a)). Under amended section 21(5)(b), if the Minister
refuses to consider the application, it lapses.
Clause 19 Section
22
Section 22 of the Casino (Electronic Gaming) Act provides for a
decision about the conversion of restricted authorisations.
Clause
19 of the Bill replaces existing section 22 in line with amendments
introduced by clause 9 of the Bill, which provide for Casino Advisory
Panels. Under new section 136A of the Casino Control Act, the conversion of a
restricted authorisation is a ‘Ministerial decision’ for which a
Casino Advisory Panel must be established under new section 136B. Revised
section 22 also reflects the amendment in clause 17 above, as it is the
Minister, not the Gambling and Racing Commission, that will now make the
conversion decision.
Through clause 19, section 22 has been
amended and restructured to take into account that the Minister must now
consider any recommendation made by a Casino Advisory Panel in relation to the
conversion of a restricted authorisation, including in relation to the casino
licensee’s compliance with any agreement with the Territory in relation to
the redevelopment of the casino and the casino precinct. Otherwise, the existing
requirements of section 22 are retained.
Clause 20 Section
46
Section 45 and schedule 1 of the Casino (Electronic Gaming) Act
provide for reviewable decisions under the Act.
Section 46 currently
provides that if the Gambling and Racing Commission makes a reviewable decision,
the Commission must give a reviewable decision notice to the casino
licensee.
Clause 20 replaces existing section 46 in line with the
amendment to section 22 introduced by clause 19 of the Bill, to provide
that the decision-maker must give a reviewable decision notice to the casino
licensee.
New section 46(2) provides that the decision-maker for a
reviewable decision includes the Gambling and Racing Commission or the
Minister.
Under amendments introduced by clauses 18, 19 and 22 of
the Bill, the Minister is now the decision-maker for the following reviewable
decisions:
• refuse to consider application for conversion of
restricted authorisations if additional information not given within stated time
(section 21(5))
• refuse to approve the conversion of restricted
authorisation to casino gaming machine authorisation or casino FATG terminal
authorisation (section 22(1))
• approve the conversion of a lower
number of restricted authorisations than the number applied for
(section 22(5)).
Clause 21 New section 54A
Clause 21
inserts new section 54A to the Casino (Electronic Gaming) Act, and is a
standard provision for the making of a Regulation as part of a Bill. This clause
should be read in conjunction with clause 23.
Under new section
54A(1) the provisions set out in Schedule 5 of the Casino (Electronic Gaming)
Act are taken, on the commencement of section 54A, to be a regulation made under
section 54 of the Casino (Electronic Gaming) Act.
New section 54A(2)
provides that to remove any doubt, and without limiting section 54A(1), the
provisions set out in Schedule 5 may be amended or repealed as if they had been
made as a regulation by the Executive under section 54.
New section
54A(3) is also a provision to remove any doubt that the regulation is taken to
have been notified on the Legislation Register on the day the Casino and
Other Gaming Legislation Amendment Act 2018 (i.e. this Bill) is notified, to
have commenced on the commencement of new section 54A, and is not required to be
presented to the Legislative Assembly under section 64(1) of the Legislation
Act 2001.
In accordance with section 54A(4), subsections (1) to (3)
of new section 54A are laws to which section 88 of the Legislation Act applies.
This means that the operation of these subsections continues after they are
repealed. Under new section 54A(5), section 54A and Schedule 5 expire on the day
they commence as the Regulation has been made, taken to have been notified and
commenced.
Clause 22 Reviewable decisions
Schedule 1, items
6 and 7
Schedule 1 of the Casino (Electronic Gaming) Act lists the
reviewable decisions for the Act, in accordance with section 45 of the
Act.
Clause 22 replaces items 6 and 7 of schedule 1 to reflect the
amendments made to section 22 of the Act by clause 19.
Clause
23 New schedule 5
Clause 23 inserts new Schedule 5 into the Casino
(Electronic Gaming) Act. Schedule 5 provides for the new Casino (Electronic
Gaming) Regulation 2018. This clause should be read in conjunction with
clause 21.
Part 1 of the new Regulation provides for preliminary
matters including the name of the Regulation, the Dictionary and the status of
Notes included in the Regulation.
Part 2 of the new Regulation relates to
Social Impact Assessments (SIAs) for a relevant casino electronic gaming
application – being a casino gaming machine authorisation certificate
application under section 10 of the Casino (Electronic Gaming) Act or a casino
FATG authorisation certificate application under section 13 of that
Act.
Section 4, new Schedule 5, sets out definitions that apply to Part 2
of the Regulation – including the terms ‘casino electronic gaming
proposal’, ‘local community’ and ‘relevant casino
electronic gaming application’.
Section 8(2) of the Casino
(Electronic Gaming) Act provides that a regulation may make provision in
relation to social impact assessments, including: (a) the requirements that must
be satisfied by a social impact assessment; (b) the matters to be addressed by a
social impact assessment; (c) the information to be given in a social impact
assessment.
Section 5, new Schedule 5 sets out requirements for SIAs in
accordance with section 8(2)(a) of the Casino (Electronic Gaming) Act. These
requirements reflect the existing requirements for SIAs for gaming machine
licensees under the Gaming Machine Regulation 2004, and include that the
analysis must identify the impact on the broader Canberra community as well as
the local community within three kilometres of the casino.
Section 6, new
Schedule 5 sets out matters to be addressed by the SIA in accordance with
section 8(2)(b) of the Casino (Electronic Gaming) Act. The matters to be
addressed reflect the existing requirements for SIAs for gaming machine
licensees, with the addition that the existing level of gaming activity, the
population profile, and the projected population and growth rate must be
addressed for the broader Canberra community as well as the local community
within three kilometres of the casino.
Section 7, new Schedule 5
establishes the information to be given in an SIA in accordance with section
8(2)(c) of the Casino (Electronic Gaming) Act. The information to be given in an
SIA reflects the existing requirements for SIAs for gaming machine licensees,
with the addition of specific information relevant to a decision relating to the
casino. The information to be provided includes the number and location of
existing gambling outlets, and population and average income details, for the
broader Canberra community as well as the local community within three
kilometres of the casino; expected casino electronic gaming revenue; expected
table gaming revenue; expected community benefit; expected contributions to
assist in gambling harm prevention; and details of the proposed redevelopment of
the casino and the casino precinct.
Part 3 of the new Regulation relates
to miscellaneous matters.
The Dictionary definition of ‘casino
gaming machine’ in the Casino (Electronic Gaming) Act provides that a
casino gaming machine does not include a device prescribed by
regulation.
Section 8, new Schedule 5 provides that the listed devices
are not a casino gaming machine. These devices include a device for playing a
game of skill; an amusement device that usually involves an element of skill and
is played for entertainment only; and a device that is ordinarily found at
fairs, fetes or shows, usually involves an element of skill and is played mainly
for entertainment, whether or not a prize is offered or given. The provision
mirrors existing section 77 of the Gaming Machine Regulation.
Schedule 5
also provides for the Regulation to include a Dictionary. The Dictionary
provides signpost definitions for terms used in the Regulation. Certain terms
relevant to the Regulation are defined in the Legislation Act 2001 and
these are outlined at the start of the Dictionary. Terms used in the Casino
(Electronic Gaming) Act, which have the same meaning in the Regulation, are also
outlined at the start of the Dictionary.
Part 4 Gambling and
Racing Control Act 1999
Clause 24 New part 6B
Clause
24 inserts new Part 6B ‘Licences, authorisation certificates and
authorisations – register and replacement copies’ into the Gambling
and Racing Control Act. This clause is related to clause 26 that omits
Division 2B.7 from the Gaming Machine Act. Division 2B.7 of the Gaming Machine
Act currently provides for the register of licences, authorisation certificates
and authorisations under section 37H of that Act, and for replacement copies of
licences, authorisation certificates and authorisation schedules under section
37I.
New section 51 outlines numerous definitions for new part 6B of the
Gambling and Racing Control Act. These definitions reflect that licences,
authorisation certificates and authorisations will be provided for under both
the Gaming Machine Act and the Casino (Electronic Gaming) Act.
New
section 52 of the Gambling and Racing Control Act requires the Gambling and
Racing Commission to keep a register of licences, authorisation certificates and
authorisations. The section mirrors existing section 37H of the Gaming Machine
Act, except section 52(2)(c) which is amended to reflect that the register will
now include details of authorisation certificates issued under both the Gaming
Machine Act and the Casino (Electronic Gaming) Act.
New section 53 of the
Gambling and Racing Control Act provides for replacement copies of licences,
authorisation certificates and authorisation. The section mirrors existing
section 37I of the Gaming Machine Act.
Amendments made by the Casino
(Electronic Gaming) Act provide for the maximum number of electronic gaming
authorisations allowed in the ACT to be established under the Gambling and
Racing Control Act. The maximum number includes any gaming machine
authorisations or fully automated table game terminal authorisations held by the
casino as well as authorisations for gaming machines in clubs and hotels. Moving
the register and replacement copy provisions from the Gaming Machine Act to the
Control Act is in line with these amendments.
Clause 25 Dictionary,
new definitions
Clause 25 inserts numerous new definitions to the
Dictionary of the Gambling and Racing Control Act. The insertion of these
definitions is consequential to the amendment made by clause 24, which
relocates Division 2B.7 – ‘Licences, authorisation certificates and
authorisations – register and replacement copies’ of the Gaming
Machine Act to the Gambling and Racing Control Act, in line with amendments
introduced by the Casino (Electronic Gaming) Act that provide for the Gambling
and Racing Control Act to include provisions relating to the maximum number of
electronic gaming authorisations in the Territory.
Part 5 –
Gaming Machine Act 2004
Clause 26 Licences, authorisation
certificates and authorisations—register and replacement
copies
Division 2B.7
Division 2B.7 of the Gaming Machine Act
currently provides for the register of licences, authorisation certificates and
authorisations under section 37H, and for replacement copies of licences,
authorisation certificates and authorisation schedules under section
37I.
Clause 26 omits Division 2B.7 from the Gaming Machine Act and
is related to clause 24 that inserts new Part 6B into the Gambling and
Racing Control Act.
Amendments made by the Casino (Electronic Gaming) Act
provide for the maximum number of electronic gaming authorisations allowed in
the ACT to be established under the Gambling and Racing Control Act. The maximum
number includes any gaming machine authorisations or fully automated table game
terminal authorisations held by the casino as well as authorisations for gaming
machines in clubs and hotels. Moving the register and replacement copy
provisions from the Gaming Machine Act to the Control Act is in line with these
amendments.
The Gaming Machine Act continues as the primary Act
regulating gaming machines in clubs and hotels.
Clause 27 Licence and
authorisation certificate to be kept at premises
Section 41 (2)
(b)
Section 41(1) of the Gaming Machine Act provides that it is a
condition of a gaming machine licence that the licensee keeps a copy of the
licence and authorisation certificate (including the authorisation schedule) at
the authorised premises to which the certificate relates.
However, under
section 41(2) the condition does not apply if the licensee has given the
Gambling and Racing Commission a statement that the licence, authorisation
certificate or authorisation schedule has been lost, stolen or destroyed and the
Commission has not given the licensee a replacement.
Currently, the
statement that the licence, authorisation certificate or authorisation schedule
has been lost, stolen or destroyed is given under section 37I of the Gaming
Machine Act.
In line with the amendments introduced by clauses 24 and
26 that relocate Division 2B.7 from the Gaming Machine Act to the Gambling
and Racing Control Act, clause 27 amends section 41(2)(b) so that
the licence condition does not apply where the licensee has given the Gambling
and Racing Commission a statement under the Gambling and Racing Control Act,
section 53(2) ‘Licences, authorisation certificates and authorisation
schedules—replacement copies’.
Clause 28 Licence and
authorisation certificate to be available on request
Section 42 (3)
(b)
Section 42(1) of the Gaming Machine Act provides that it is a
condition of a gaming machine licence that the licensee must allow a person to
view the licence and authorisation certificate if so requested.
However,
section 42(3) provides that the condition does not apply if the licensee has
given the Gambling and Racing Commission a statement that the licence or
authorisation certificate has been lost, stolen or destroyed and the Commission
has not given the licensee a replacement.
Currently, the statement that
the licence or authorisation certificate has been lost, stolen or destroyed is
given under section 37I of the Gaming Machine Act.
In line with the
amendments introduced by clauses 24 and 26 that relocate Division 2B.7
from the Gaming Machine Act to the Gambling and Racing Control Act, clause
28 amends section 42(3)(b) so that the licence condition does not apply
where the licensee has given the Gambling and Racing Commission a statement
under the Gambling and Racing Control Act, section 53(2) ‘Licences,
authorisation certificates and authorisation schedules—replacement
copies’.
Under section 42(2), a licensee may restrict viewing
of an authorisation schedule to authorised officers exercising a function under
the Control Act and this provision remains unamended.
Clause 29 New
section 52A
Division 3.3 of the Gaming Machine Act provides for club
licence conditions.
New section 52A is inserted by clause 29 of
the Bill, and provides for a new club licence condition about the operation of
gaming machines near the casino. Under new section 52A(1) it is a condition
of a club licence that if the licensee is related to the casino licensee and
operates a gaming machine within 200 metres of the boundary of the casino, the
gaming machine must be operated in accordance with section 26 and Part 7 of the
Casino (Electronic Gaming) Act.
Section 26 of the Casino (Electronic
Gaming) Act provides that casino gaming machines are restricted to a maximum bet
limit of $2, must be able to be connected to a central monitoring system, and
satisfy any other harm minimisation requirements prescribed by regulation. Part
7 of the Casino (Electronic Gaming) Act establishes requirements for mandatory
pre-commitment to a net loss limit set by the gaming machine player, and
provides for voluntary pre-commitment to a maximum period of play set by the
player.
New section 52A(2) provides that for section 52A(1), terms used
in section 26 and Part 7 of the Casino (Electronic Gaming) Act apply to the
operation of a gaming machine as if a reference to a casino gaming machine
included a reference to a gaming machine, a casino gaming machine authorisation
included a reference to an authorisation and a casino licensee included a
reference to a class C (i.e. club) licensee.
New section 52A(3) sets out
the circumstances in which a gaming machine licensee is ‘related’ to
the casino licensee for this section. This subsection mirrors the existing
provisions in section 157B of the Gaming Machine Act that define a club
group for the purposes of the gaming machine tax rebate.
In accordance
with section 39 of the Gaming Machine Act, a gaming machine licensee commits an
offence if the licence is subject to a condition and the licensee fails to
comply with a requirement of the condition, with a maximum penalty of 100
penalty units. Under section 39(3) the offence is a strict liability offence.
Section 39(4) provides that the offence does not apply where a licensee took all
reasonable steps to comply with a requirement of a condition.
Club
licence conditions set out in Division 3.3 of the Gaming Machine Act apply only
to club licensees, and as defined in the Dictionary of that Act, all
‘club’ licensees are either a corporation or an incorporated
association established for the benefit of members to achieve eligible objects.
See also the analysis in the Human Rights Implications section
above.
Clause 30 Acquisition of gaming machines—amendment of
authorisation schedule etc Section 100 (3), notes
Section 100 of the
Gaming Machine Act provides for the Gambling and Racing Commission to amend the
licensee’s authorisation schedule for the authorised premises where a
gaming machine licensee notifies the Commission about the acquisition of a
gaming machine.
Under section 37H(2)(d) of the Gaming Machine Act, the
register of licences, authorisation certificates and authorisations includes
details about any storage permits held by the licensee.
The Notes below
section 100(3) currently indicate that the Gambling and Racing Commission must
also amend the register of licenses and authorisations to include details about
the maximum number of authorisations to be held by the licensee after acquiring
the gaming machines mentioned in the notice, with a cross-reference to section
37H(2)(d) of the Gaming Machine Act. A signpost definition to the term
‘maximum number’ is also included.
In line with the
amendments introduced by clauses 24 and 26 that relocate Division 2B.7
from the Gaming Machine Act to the Gambling and Racing Control Act, clause
30 replaces the existing notes below section 100(3) with a new note that
refers instead to section 52(2) of the Gambling and Racing Control Act, which is
where provision for the register of licences, authorisation certificates and
authorisations will now be located, and amended to better reflect the amendments
made by the Gaming Machine (Reform) Amendment Act.
Clause 31 Storage
permit—decision on application
Section 127P (2) (d), note 1
Section 127P of the Gaming Machine Act provides for storage permits for
gaming machines, and sets out a range of matters about which the Gambling and
Racing Commission must be satisfied before issuing a storage permit. These
matters include the suitability of the proposed premises for the storage of
gaming machines and processes where two or more licensees are storing gaming
machines at the same premises.
Under section 37H(2)(d) of the Gaming
Machine Act, the register of licences, authorisation certificates and
authorisations includes details about any storage permits held by the
licensee.
Note 1 below section 127P(2)(d) currently indicates that the
Gambling and Racing Commission must include in the register the serial number
of, and authorisation number for, a gaming machine stored under a storage permit
for a general purpose, with a cross-reference to section 37H(2)(d) of the Gaming
Machine Act.
In line with the amendments introduced by clauses 24 and
26 that relocate Division 2B.7 from the Gaming Machine Act to the Gambling
and Racing Control Act, clause 31 amends Note 1 below section 127P(2)(d)
to refer instead to section 52(2)(d) of the Gambling and Racing Control Act,
which is where provision for the register of licences, authorisation
certificates and authorisations will now be located.
Clause
32 Quarantine permits—notification and issue
Section 127Q (3),
note
Section 127Q of the Gaming Machine Act provides for a gaming machine
licensee to notify the Gambling and Racing Commission that they need a
quarantine permit for a gaming machine and its associated authorisation, and
provides for the issuing of the quarantine permit by the Commission for an
agreed period between one and three years.
Under section 37H(2)(d) of the
Gaming Machine Act, the register of licences, authorisation certificates and
authorisations includes details about any quarantine permits held by the
licensee.
The note below section 127Q(3) currently indicates that the
Gambling and Racing Commission must include in the register the serial number
of, and authorisation number for, a gaming machine stored under a quarantine
permit, with a cross-reference to section 37H(2)(d) of the Gaming Machine
Act.
In line with the amendments introduced by clauses 24 and 26
that relocate Division 2B.7 from the Gaming Machine Act to the Gambling and
Racing Control Act, clause 32 amends the note below section 127Q(3) to
refer instead to section 52(2)(d) of the Gambling and Racing Control Act, which
is where provision for the register of licences, authorisation certificates and
authorisations will now be located.
Part 6 – Gaming Machine
(Reform) Amendment Act 2015
Clause
33 Commencement
Section 2 (4)
Phase 1 of the gaming machine
trading scheme introduced by the Gaming Machine (Reform) Amendment Act was due
to operate for a maximum of three years and commenced on
31 August 2015. This phase provided for a reduction in the number of
gaming machine authorisations in the ACT through forfeiture requirements when
gaming machine licensees traded authorisations, and introduced provisions to
quarantine and store gaming machines that reduced the number of gaming machines
in operation.
Phase 2 of the trading scheme is scheduled to commence no
later than 31 August 2018 and provides for the maximum number of gaming machine
authorisations to be limited to 15 authorisations per 1,000 adults in the
Territory. To achieve this ratio, licensees with 20 or more authorisations would
be required to surrender their authorisations on a pro-rata basis to meet the
ratio. The Phase 2 provisions are contained in the uncommenced Schedule 1 of the
Gaming Machine (Reform) Amendment Act.
The Government has since committed
in the Parliamentary Agreement to reduce the number of gaming machine
authorisations to 4,000 by 1 July 2020, as part of a range of measures intended
to reduce gambling harm.
On 3 April 2018, the Attorney-General announced
the appointment of Mr Neville Stevens AO to undertake the Club Industry
Diversification Support Analysis, to be completed by 31 May 2018. This
Analysis will inform Government decision-making about the pathway to reach 4,000
gaming machine authorisations.
Clause 33 of the Bill amends section 2(4)
of the Gaming Machine (Reform) Amendment Act to delay the default commencement
of Phase 2 of the gaming machine trading scheme for a further 12 months
(until 31 August 2019) to allow time for a revised approach that aligns with
current Government policy to be finalised and considered by the Legislative
Assembly.