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GAMING LEGISLATION AMENDMENT REGULATION 2015 (NO 1) (NO 27 OF 2015)
2015
THE LEGISLATIVE
ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
Subordinate Law No
SL2015-27
EXPLANATORY
STATEMENT
Presented by
Joy Burch MLA
Minister for
Racing and Gaming
The Gaming Machine Act 2004 (the Act) regulates the licensing of
gaming machine operators and premises, and the administration and operation of
all gaming machines in the Territory. For the purposes of the Act, the
Gambling and Racing Control Act 1999 (the Control Act) provides the
overarching legislative framework for gambling in the Territory.
The
Control Act established the ACT Gambling and Racing Commission (the Commission)
with a governing board. The Commission has responsibility for the administration
of gaming laws and the control, supervision and regulation of gaming in the
Territory.
The Gambling and Racing Control (Code of Practice)
Regulation 2002 (the Code Regulation) has been made under the Control Act.
The Gaming Machine Regulation 2004 (the Regulation) has been made in
accordance with subsection 178(1) of the Act.
The Gaming Legislation Amendment Regulation 2015 (No 1) (the Amendment
Regulation) provides amendments to the Regulation. The amendments are
consequential to the commencement of the Gaming Machine (Reform) Amendment
Act 2015, and support the implementation of the gaming machine trading
scheme, new licensing and authorisation framework and transitional arrangements.
The Amendment Regulation supports implementation of those amendments introduced
by the Amendment Act; it therefore has minimal, if any, further costs or
benefits beyond those introduced by the Amendment Act. These costs are detailed
in the Regulatory Impact Statement to the Amendment Regulation.
During the development of the Amendment Regulation consideration was given to
the impact on human rights. Clause 7 of the Amendment Regulation requires that
contractual information be supplied to the Commission for premises where gaming
machine activities may occur. This requirement has been applied since the
Regulation commenced in November 2004.
While the Amendment Regulation
generally deals with entities and not individuals, it is possible that some
contracts may relate to individuals. Therefore section 12 (Privacy and
reputation) of the Human Rights Act 2004 may be engaged as the
contractual information may indicate an individual’s personal
information.
An assessment was made as to whether any less restrictive means were
available to ascertain the contractual information relevant to the Commission
meeting its enforcement obligations – see below (this contractual
information may include the identity of an entity or individual, or information
on commercial financial arrangements). Furthermore consideration was given to
the type of contractual information that would be obtained. It was determined
that where personal information was acquired it would include limited details
namely, the identity of a person and their address. Other personal information,
including such matters as criminal history, are not able to be sought under
section 6 of the Regulation and nor would such extension be warranted.
Information on contractual arrangements assists the Commission to, among
other things, identify ‘kick-backs’ and possible money laundering
activities. The Commission must have the necessary tools to meet its obligations
under subsection 7(b) of the Gambling and Racing Control Act 1999, to
minimise the possibility of criminal or unethical activity. Obtaining
information on contracts is a means to achieving such obligations.
Once
the information is received the Commission is bound by strict requirements under
the Information and Privacy Act 2014 and Privacy Act 1988 (Cwlth).
Division 4.4 (Secrecy) of the Gambling and Racing Control Act 1999
provides further strong safeguards for the handling, confidentiality,
and permitted disclosures of information that the Commission acquires as a
result of exercising its functions under or in relation to a gaming law. Offence
provisions apply for a person making a record of confidential information other
than in accordance with their duties and unauthorised disclosure. The maximum
penalty that can be applied is 50 penalty units, imprisonment for 6 months or
both.
It was ascertained that there was no other means available to
obtain contractual information. Accordingly, when balancing the risks involved;
the type of information likely to be disclosed; and the strict protection
requirements for information once disclosed, the amendment was considered
reasonable and proportionate.
CLAUSE NOTES
Part 1 Preliminary
Clause 1 - Name of regulation
This clause is a formal requirement
and identifies the regulation as the Gaming Legislation Amendment
Regulation 2015 (No 1).
Clause 2 - Commencement
The Amendment Regulation commences when
section 4 of the Gaming Machine (Reform) Amendment Act 2015 (Amendment
Act) commences. This will enable simultaneous commencement of the Regulation and
the majority of the reforms introduced by the Amendment Act.
Clause 3 - Legislation amended
Provides that the Amendment
Regulation amends the Gambling and Racing Control (Code of Practice)
Regulation 2002 and the Gaming Machine Regulation 2004.
Part 2 Gambling and Racing Control (Code of Practice) Regulation 2002
Clause 4 – Schedule 1, new section 1.27B
Clause 4 inserts a
new section 1.27B in Schedule 1 to the Gambling and Racing Control (Code of
Practice) Regulation 2002. This clause provides for the times when gaming
machines are not permitted to be operated. This clause was previously located at
section 71 of the Regulation. The policy intent and operation of the
provision has not been altered by the relocation of this provision.
Part 3 Gambling Machine Regulation 2004
Clause 5 - Section 3, note 1
Clause 5 substitutes the existing
note 1 to provide for updated terminology in reference to the definition of
‘single-user approval’. It is a formal provision providing that a
note included in the Act is intended as explanatory information only and is not
part of the Act.
Clause 6 - Part 2, heading
Clause 6 amends the heading for Part 2
of the Regulation to ‘licences and authorisations’ to apply a change
in terminology.
Clause 7 - Section 6
This clause amends existing section 6 of the
Regulation to give effect to the implementation of the new licensing and
authorisation framework and introduction of the trading scheme under the
Amendment Act.
New subsection 6(1) lists the type of applications and
notifiable actions where there is a requirement to provide additional documents
as part of the application or notification process. The specified circumstances
that apply are:
• Class C licence applications and authorisation
certificate applications;
• Class B licence and authorisation
certificate applications; and
• transfers of authorisation certificates
and in-principle authorisation certificates.
The note following paragraph
6(1)(e) has been inserted to provide clarification that section 6 of the
Regulation also applies to an application for an in-principle approval for an
authorisation certificates due to the requirement to comply with the Act (see
new subsection 22(1) and section 38C of the Amendment Act).
New
subsection 6(2) requires that any proposed or existing contractual arrangement
for the use of premises to which the application or notification process relates
(for example a lease for the premises where gaming machines will now be
operated) must be provided to the Commission. This applies to all occurrences
specified in new
subsection 6(1) of the Regulation.
The requirement
to supply contractual arrangement information has been applied since November
2004 and is integral to the Commission meeting its objectives under
section
7 of the Gambling and Racing Control Act 1999. In particular, as far as
practicable, the Commission must minimise the possibility of criminal or
unethical activity in the gambling industry.
New subsection 6(3)
specifies the documents that must accompany an application for a Class C licence
application or a Class B licence and authorisation certificate application under
subsection 6(1). Paragraph 6(3)(a) requires audited financial statements for the
last three financial years, or under paragraph 6(3)(b) if not yet operating for
three years, a statement for each financial year of operation. The requirement
to supply audited financial statements by applicants applying for a licence has
been adopted since the commencement of the Regulation in November 2004. Such
statements assist the Commission in determining whether an entity is financially
viable.
Clause 8 - Section 7, heading
This clause amends the heading for section 7 of the Regulation to apply new
section numbers for the Act as a consequence of the Amendment Act.
Clause 9 - Section 7(3), definition of GM
GM is a key
element of the existing formula used to determine the number of club members
(for a club with a membership agreement). The formula to calculate the number of
club members is:
GM establishes the overall
determination of the number of club members for a club.
Clause 9 amends
current subsection 7(3) of the Regulation and describes the formula to calculate
GM as: the maximum number of gaming machine authorisations applied for; or the
maximum number of Class C gaming machine authorisations that can be held if the
authorisation certificate amendment application were approved. The amendment
adopts the new terminology implemented as part of the new licensing and
authorisation framework under the Amendment Act.
Clause 10 - Section 7(3), definition of TGM
Clause 10 amends
current subsection 7(3) of the Regulation and describes the formula to calculate
TGM.
When an authorisation certificate is being sought by a club, TGM is
the total of the maximum number of Class C gaming machine authorisations under
the authorisation certificate/s for:
• the club premises that the
authorisation certificate application relates to;
• all the applicant
club’s other premises; and
• any other clubs that are part of a
membership agreement with the applicant club.
Similarly, when a club is
seeking to amend its authorisation certificate to increase the maximum number of
gaming machine authorisations, TGM is the total of the maximum number of gaming
machine authorisations under the authorisation certificate/s for:
• the
club premises if the amendment was approved;
• all the applicant
club’s other premises; and
• any other clubs that are part of a
membership agreement with the applicant club.
The amendment also adopts
the new terminology implemented as part of the new licensing and authorisation
framework under the Amendment Act.
Clause 11 - Section 7(3), note
This clause substitutes the existing
note (a) and (b) in subsection 7(3) and has been inserted to provide
clarification that there is a requirement that section of the Regulation also
applies to new section 23 and paragraph 38N(4)(b) of the
Amendment
Act.
Clause 12 - Section 8
This clause amends existing section 8 as a consequence of the introduction of
the new licensing and authorisation framework under the Amendment Act. The
schedule to the authorisation certificate will record specific information
relevant to the operating features of the gaming machine, such as the type of
game installed, basic stake denomination, percentage payout and any linked
jackpot arrangements. This information was previously held as part of the
licence schedule. The recording of this information supports the Commission in
its objectives under section 7 of the Gambling and Racing Control Act
1999, especially in relation to consumer protection by being able to easily
identify whether a particular gaming machine has had unauthorised changes to its
programming.
Clause 13 - Section 9, new definition of relevant gaming machine application
This clause provides a new definition for what a relevant gaming machine
application is for the purposes of Part 3 of the Regulation. Part 3 of the
Regulation deals with social impact assessments.
A relevant gaming
machine application is an application for: an authorisation certificate; an
amendment to an authorisation certificate seeking to relocate a club to another
suburb; an increase in the maximum number of authorisations under an
authorisation certificate; or in-principle approval for an authorisation
certificate.
Clause 14: Section 9, definition of relevant premises
Clause 14 substitutes the current definition under Part 3 of the
Regulation of relevant premises for a social impact assessment. The definition
provides clarity that the relevant premises means: the premises where the
increased number of gaming machines may be operated; the premises where the
operation of all gaming machines are to be relocated; and the address where
in-principle approval is being sought to operate gaming machines.
Clause 15 - Section 10, heading
This clause amends the heading for
section 10 of the Regulation to apply the new section number for the Act,
paragraph 12(2)(a) of the Amendment Act, previously
paragraph 18(2)(a).
Clause 16 - Section 10(1)
Clause 16 amends subsection 10(1) to
apply the new definition of a relevant gaming machine application as set out in
clause 13 above.
Clause 17 - Section 10(2)
Clause 17 provides an amendment to
existing subsection 10(2) of the Regulation. The amendment is consequential and
has been inserted to incorporate the terminology adopted under the Amendment Act
for authorisation certificates. The policy intent and operation of the provision
has not been altered by the amendment.
Clause 18 - Section 11, heading
This clause amends the heading for
section 11 of the Regulation to apply the new section number for the Act,
paragraph 12(2)(b), previously paragraph 18(2)(b).
Clause 19 - Section 11(1)
Clause 19 amends subsection 11(1) to
apply the new definition of a relevant gaming machine application. A social
impact assessment must address the matters listed in paragraph 11(1)(a) to
paragraph 11(1)(g) of the Regulation. The policy intent and operation of the
provision has not been altered by the amendment.
Clause 20 - Section 12, heading
This clause amends the heading for
section 12 of the Regulation to apply the new section number for the Act,
paragraph 12(2)(c), previously paragraph 18(2)(c).
Clause 21 - Section 12(1)
Clause 21 amends subsection 12(1) to
apply the new definition of a relevant gaming machine application. To the extent
that information is available to an applicant, a social impact assessment must
provide the information specified in paragraph 12(1)(a) to paragraph 12(1)(d) of
the Regulation. The policy intent and operation of the provision has not been
altered by the amendment.
Clause 22 - Part 3A
Clause 22 removes existing Part 3A of the
Regulation regarding social impact statements. Part 3A of the Regulation
commenced on 1 January 2013 and was specifically inserted as part of the
small-scale gaming machine relocation scheme. Social impact statements were an
abridged form of a social impact assessment to cater for those circumstances
where the Commission considered the risk did not necessitate a full social
impact assessment to be undertaken.
Small-scale gaming machine
relocation provisions will no longer apply under the Act with the introduction
of the trading scheme arrangements under the Amendment Act. This makes Part 3A
of the Regulation obsolete.
The removal of the provisions for social
impact statements does not affect the requirements for social impact assessments
to be undertaken and therefore does not impact on harm minimisation strategies.
Clause 23 - Section 14, note
This clause substitutes the existing
note to provide for the updated section numbering applied throughout the Act as
a consequence of the Amendment Act.
Clause 24 - Section 40, new
definition of single-user approval
This clause inserts a
definition for ‘single-user approval’ to give effect to the
implementation of the new licensing and authorisation framework under the
Amendment Act.
Clause 25 - Section 40, definition of single-user
authorisation
This clause deletes the definition of single-user
authorisation to give effect to the implementation of the new licensing and
authorisation framework under the Amendment Act.
Clause 26 - Section 55, definition of linked licence
This
definition has been omitted because the term is not used in the
Regulation.
Clause 27 - New parts 9A and 9B
New Part 9A has been inserted to
require information to be displayed on the storage permit for gaming machines
under the Amendment Act.
New Part 9B is also as a result of the
Amendment Act. Paragraph 173D(5)(b) of the Amendment Act provides that a
regulation may prescribe a different number of days than specified under
paragraph 173D(5)(a). New subsection 70B(1) prescribes that the number of days
to process a notifiable action for a technical amendment to or transfer of an
authorisation certificate; a surrender of a licence, authorisation certificate
and authorisation; and disposal of a gaming machine, is set at 20 business days.
The Regulation has been inserted to enable the initial transition to notifiable
actions under the licensing and authorisation framework and will expire three
months after the commencement of the Regulation.
Clause 28 - Section 71
This clause omits section 71 of the
Regulation and is consequential to the amendment at Part 2. The entire provision
has been relocated to the Code Regulation.
Clause 29 - New part 15
This clause inserts new Part 15 in the
Regulation to clarify the transitional arrangements under Part 20 of the Act are
modified by Schedule 1. The Part is to expire three years after the day the
Amendment Regulation commences.
Clause 30 - New schedule 1
Subsection 310(2) of the Amendment Act provides that a regulation may modify
the transitional arrangements established in Part 20 to make provision in
relation to matters that are not, or are not adequately or appropriately, dealt
with in that Part. New Schedule 1 inserts new section 309A and section
309B.
Transitional arrangements for in-principle approvals are provided
at section 306 to section 309 of the Amendment Act. New section 309A has been
inserted to provide a necessary transitional arrangement for a conversion of an
in-principle approval. This is to retain the right for an existing in-principle
approval granted under the Act to be converted. The current transitional
arrangements under the Amendment Act only cater for those situations where an
application was received by the Commission prior to the commencement of the
Amendment Act. The amendment is within the scope and objects of the Act and has
been confined to the power granted under the Amendment Act.
Subsection
309B provides that the Commission must issue a storage permit for a general
purpose for 12 months, where prior to the commencement of the Amendment Act the
Commission had approved the temporary storage of gaming machines under a
licence. This is to enable a seamless transition for the temporary storage of
gaming machines under the new licensing and authorisation framework and minimise
the occurrences where a licensee may inadvertently be committing an offence
under the Act. The amendment is within the scope and objects of the Act and has
been confined to the power granted under the Amendment Act.
Clause 31- Dictionary, note 3
This clause amends the Dictionary, note 3 of the Regulation to apply the new section numbers and terminology under the Amendment Act.
Clause 32 - Dictionary, new definition of expired gaming
credits
This amendment inserts a definition for a term defined in
section 27 of the Act. This is consistent with current legislative drafting
practice.
Clause 33 - Dictionary, definition of gaming machine
proposal
This amendment deletes the definition of social impact
statements and is consequential to the amendment at clause 22 of the Amendment
Regulation.
Clause 34 - Dictionary, definition of linked licence
This
amendment deletes the definition of linked licence and is consequential to the
amendment at clause 26 of the Amendment Regulation.
Clause 35 - Dictionary, definition of local community
This
amendment deletes the definition of local community and is consequential to the
amendment at clause 22 of the Amendment Regulation.
Clause 36 - Dictionary, new definition of relevant gaming
machine application and single-user approval
This amendment inserts
the definition of relevant gaming machine application and single-user approval
and is consequential to the amendments at clauses 13, 24 and 25 of the Amendment
Regulation respectively.
Clause 37 - Dictionary, definition of single user authorisation
This amendment deletes the term ‘single-user authorisation’
to give effect to the implementation of the new licensing and authorisation
framework under the Amendment Act.
Clause 38 - Further amendments, mentions of authorisation
etc
This clause amends a number of provisions to adopt the term
‘approval’ in place of the term ‘authorisation’ to give
effect to the implementation of the new licensing and authorisation framework
under the Amendment Act.
Clause 39 - Further amendments, mentions of licensed
etc
This clause amends a number of provisions to adopt the term
‘authorised’ in place of the term ‘licensed’ to give
effect to the implementation of the new licensing and authorisation framework
under the Amendment Act.
Clause 40 - Further amendments, mentions of machine etc
This
clause amends a number of provisions to provide clarity with the term
‘gaming machine’ being inserted in place of the term
‘machine’.