Gaming and Liquor Administration Act 2007 (NSW)

Gaming and Liquor Administration Act 2007 No 91 An Act to constitute the Independent Liquor and Gaming Authority and to specify its functions; to provide for the probity of officials under the gaming and liquor legislation; to confer investigation and enforcement powers for the purposes of that legislation; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Gaming and Liquor Administration Act 2007. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 2A Objects of Act The objects of this Act are as follows— (a) to ensure the probity of public officials who are engaged in the administration of the gaming and liquor legislation, (b) to ensure that the Authority and NICC are accessible and responsive to the needs of all persons and bodies who deal with the Authority, (c) to promote fair and transparent decision-making under the gaming and liquor legislation, (d) to require matters under the gaming and liquor legislation to be dealt with and decided in an informal and expeditious manner, (e) to promote public confidence in— (i) the Authority's decision-making and in the conduct of its members and staff, and (ii) the NICC's decision-making and in the conduct of its Commissioners and staff. 3 Definitions (1) In this Act— Authority means the Independent Liquor and Gaming Authority constituted under this Act. casino, casino licence, casino operator, gaming equipment and operations have the same meanings as in the Casino Control Act 1992. close associate—see section 5. controlled contract means a contract within the meaning of section 36 of the Casino Control Act 1992. controlled purchasing operation—see section 33A. Department means the Department of Enterprise, Investment and Trade. designated Public Service employee means a Public Service employee who is designated by the Secretary and who is employed to enable the Authority to exercise its functions. exercise a function includes perform a duty. function includes a power, authority or duty. gaming and liquor legislation—see section 4. gaming or liquor licence means a licence under the gaming and liquor legislation, and gaming and liquor licensee includes a casino operator or a registered club. inspector means a person appointed under section 20. key official means any of the following— (a) a member of the Authority, (a1) a member of the NICC, (b) the General Counsel of the Authority, (c) the Secretary, (d) a designated Public Service employee who is the subject of a written order by the Secretary (or an order by the Authority in force immediately before the substitution of this paragraph by the Gaming and Liquor Administration Amendment Act 2015) that has been served on the employee and is to the effect that the employee is a key official for the purposes of the gaming and liquor legislation, (d1) a Public Service employee (other than a designated Public Service employee) engaged in the administration of the gaming and liquor legislation who is the subject of a current written order by the Secretary that has been served on the employee and is to the effect that the employee is a key official for the purposes of the gaming and liquor legislation, (d2) a member of the staff of the NICC, (e) a consultant to the Authority who is the subject of a current written order by the Authority that has been served on the consultant and is to the effect that the consultant is a key official for the purposes of the gaming and liquor legislation, (e1) a consultant to the NICC, (f) the Commissioner of Police or a police officer who holds the position of Police Area Commander or Police District Commander or a higher ranked or graded position but is not referred to in paragraph (g), (g) a member of the NSW Police Force who is the subject of a current written order by the Commissioner of Police that has been served on the member and is to the effect that the member is a key official for the purposes of the gaming and liquor legislation. member of the Authority means any person appointed under section 7. NCAT means the Civil and Administrative Tribunal of New South Wales. NICC means the New South Wales Independent Casino Commission established under the Casino Control Act 1992. premises includes— (a) a building or structure, or (b) land or a place (whether enclosed or built on or not), or (c) a vehicle, vessel or aircraft. records includes plans, specifications, maps, reports, books and other documents (whether in writing, in electronic form or otherwise). registered club means a club that holds a club licence under the Liquor Act 2007. Secretary means the Secretary of the Department. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) Notes included in this Act do not form part of this Act. 4 Meaning of "gaming and liquor legislation" In this Act— gaming and liquor legislation means any of the following Acts or specified parts of Acts and the regulations and other instruments made under those Acts or parts— (a) this Act, (b) Casino Control Act 1992, (c) Gaming Machines Act 2001, (d) Liquor Act 2007, (e) Registered Clubs Act 1976, (f) Gaming Machine Tax Act 2001 (Part 4 and Schedule 1). 5 Meaning of "close associate" (1) For the purposes of the gaming and liquor legislation, a person is a close associate of an applicant for, or the holder of, a gaming or liquor licence if the person— (a) holds or will hold any relevant financial interest, or is or will be entitled to exercise any relevant power (whether in his or her own right or on behalf of any other person), in the business of the applicant or licensee that is or will be carried on under the authority of the licence, and by virtue of that interest or power is or will be able (in the opinion of the Authority) to exercise a significant influence over or with respect to the management or operation of that business, or (b) holds or will hold any relevant position, whether in his or her own right or on behalf of any other person, in the business of the applicant or licensee that is or will be carried on under the authority of the licence. (2) In this section— relevant financial interest, in relation to a business, means— (a) any share in the capital of the business, or (b) any entitlement to receive any income derived from the business, or to receive any other financial benefit or financial advantage from the carrying on of the business, whether the entitlement arises at law or in equity or otherwise, or (c) any entitlement to receive any rent, profit or other income in connection with the use or occupation of premises on which the business of the club is or is to be carried on (such as, for example, an entitlement of the owner of the premises of a registered club to receive rent as lessor of the premises). relevant position means— (a) the position of director, manager or secretary, or (b) any other position, however designated, if it is an executive position. relevant power means any power, whether exercisable by voting or otherwise and whether exercisable alone or in association with others— (a) to participate in any directorial, managerial or executive decision, or (b) to elect or appoint any person to any relevant position. (3) For the purposes of this section, a financial institution is not a close associate by reason only of having a relevant financial interest in relation to a business. (4) For the purposes of this section, a Presiding Officer (within the meaning of the Parliamentary Precincts Act 1997) is not, in the case of a licence under the Liquor Act 2007, a close associate of an applicant for a licence or the holder of a licence that relates to premises within the Parliamentary precincts. (5) This section does not apply to the Casino Control Act 1992 and the regulations made under that Act. Part 2 Constitution and functions of Authority 6 Constitution of Authority (1) There is constituted by this Act a corporation with the corporate name of the Independent Liquor and Gaming Authority. (2) The Authority is a NSW Government agency. (3) The Authority is, in the exercise of its functions, subject to the control and direction of the Minister, except in relation to the following— (a) the contents of any advice, report or recommendation given to the Minister, (b) decisions in relation to— (i) the granting, suspension or cancellation of a gaming or liquor licence, or (ii) the imposition, variation or revocation of conditions of a gaming or liquor licence, or (iii) the taking of disciplinary action under the gaming and liquor legislation. (4) (Repealed) 7 Members of Authority (1) The Authority consists of— (a) the following members appointed by the Governor on the recommendation of the Minister— (i) a Chairperson, (ii) a Deputy Chairperson, (iii) other members, and (b) any assistant members appointed by the Minister under section 8A. (2) The persons recommended by the Minister for appointment as members under subsection (1)(a) must be chosen from the recommended members list. (3) Schedule 1 has effect in relation to the members and procedures of the Authority. 8 Selection panel for appointment of members (1) When a vacancy in the office of a member of the Authority occurs, the Minister must establish a selection panel to prepare and give the Minister a list (a recommended members list) that includes— (a) persons recommended for appointment to the vacant office, and (b) recommendations about the terms of office for persons included on the recommended members list. (2) The selection panel must ensure the number of persons included in the recommended members list given to the Minister is more than the number of persons required to fill the vacancy. (3) The selection panel must not include a person in the recommended members list unless— (a) for at least one member—the person is— (i) a Judge or former Judge, or (ii) a lawyer of at least 7 years' standing with experience in administrative law, or (b) for persons recommended for appointment as other members—the person has expertise or experience in— (i) regulation of financial crime, or (ii) law enforcement relating to financial crime, or (iii) accounting or corporate governance. 8A Appointment of assistant members (1) The Minister may, by written instrument, appoint additional temporary members (assistant members) to the Authority. (2) The functions of an assistant member are any or all of the following, as stated in the assistant member's instrument of appointment— (a) to assist the Authority in the exercise of its functions generally, (b) to assist a specific investigation or inquiry, (c) to exercise any other functions under this Act. 9 General functions of Authority (1) The Authority has the functions conferred or imposed on it by or under— (a) the gaming and liquor legislation, or (b) any other legislation. (2) The Authority may employ staff to assist the Authority to exercise its functions. (3) The Authority may, without limiting subsection (2)— (a) arrange for police officers to be made available to perform services for the Authority, and (b) arrange for the use of the services of any staff or facilities of a Public Service agency or a public or local authority, and (c) engage such consultants as it requires to exercise its functions. 10 Committees (1) The Authority may establish committees to assist it in connection with the exercise of any of its functions. (2) A committee of the Authority need not include a member of the Authority. (3) The procedure for the calling of meetings of a committee and for the conduct of business at those meetings is to be as determined by the Authority or (subject to any determination of the Authority) by the committee. 11 Arrangements for supply of Police records (1) The following persons (each a relevant person) may enter into an arrangement with the Commissioner of Police for the supply to the relevant person of information contained in the records of the NSW Police Force to assist in the effectual administration of gaming and liquor legislation— (a) the Secretary, (b) the Authority. (2) Those arrangements are sufficient authority for the supply of that information. 12 Disclosure of spent convictions The Authority is taken to be a law enforcement agency for the purposes of section 13 of the Criminal Records Act 1991. 13 Delegation of Authority's functions (1) The Authority may delegate to an authorised person or body the exercise of any of its functions other than this power of delegation. (2) The Authority cannot, however, delegate its functions under— (a) section 36A in respect of a review of a delegated decision, or (b) sections 18, 19, 22, 23, 28 and 59 of the Casino Control Act 1992. (3) In this section— authorised person or body means— (a) a member of the Authority, or (a1) a designated Public Service employee or other Public Service employee, or (b) a committee of the Authority, or (c) a person of a class prescribed by the regulations. 13A Review by NCAT of certain decisions of Authority (1) A relevant person who is aggrieved by a decision of the Authority in relation to an application made under a provision of the gaming and liquor legislation prescribed by the regulations for the purposes of this section (a prescribed application) may apply to NCAT for an administrative review under the Administrative Decisions Review Act 1997 of that decision. (2) (Repealed) (3) An application for administrative review made under subsection (1) must— (a) be made within 28 days of notice of the decision being published on the website of the Department, and (b) be accompanied by the fee prescribed by the regulations. Note— Section 36C requires notice of the decision to be published on the Department's website. (4) Subsection (1) does not apply in relation to a decision of the Authority that confirms, varies or revokes a decision made by a designated Public Service employee or other Public Service employee acting under a delegation given by the Authority. (5) In this section, relevant person in relation to a prescribed application means— (a) the applicant, or (b) a person— (i) who was required to be notified of the prescribed application, and (ii) who made a submission to the Authority or the Secretary in respect of the prescribed application. Part 3 Probity 14 Persons engaged in administration of gaming and liquor legislation to be of highest integrity (1) This section applies to the following positions— (a) member of the Authority, (a1) Commissioner of the NICC, (b) designated Public Service employee nominated by the Secretary in writing (or designated by the Authority in writing before the substitution of this paragraph by the Gaming and Liquor Administration Amendment Act 2015) for the purposes of this section, (b1) inspector, (b2) (Repealed) (c) consultant to the Authority designated by the Authority in writing for the purposes of this section, (d) consultant to the NICC designated by the NICC in writing for the purposes of this section. (2) A person is not eligible to be appointed to, or to hold, a position to which this section applies unless the person possesses the highest standard of integrity. (3) The question of whether a person possesses the highest standard of integrity is to be determined by the person responsible for the position concerned, namely— (a) the Minister—in the case of the position of member of the Authority or a Commissioner of the NICC, or (b) the Authority—in the case of the position of consultant to the Authority, or (b1) the NICC—for the position of consultant to the NICC, or (c) the Secretary—in the case of the position of designated Public Service employee or inspector. (d) (Repealed) (4) For the purpose of making such a determination, the person responsible for the position must (in the case of proposed appointments) and may (in all other cases) cause to be carried out all such investigations and inquiries as the person considers proper and, in particular, must (in the case of proposed appointments) and may (in all other cases) obtain and consider a report from the Commissioner of Police in relation to any person being considered for appointment to the position, or the holder of the position, as the case requires. (5) In carrying out any investigation or inquiry for the purposes of this section, the Authority and the Secretary must comply with such guidelines as the Authority or the Secretary (as the case requires) may from time to time establish in connection with the conduct of such an investigation or inquiry. (6) The Commissioner of Police is to furnish such a report at the request of the person responsible for the position and may for the purpose of the report require a person to whom the report relates to consent to having his or her photograph, finger prints and palm prints taken. (7) If a person fails to co-operate with an investigation or inquiry under subsection (4) in relation to a position to which this section applies— (a) in the case of a candidate for appointment to such a position, the person is not eligible to be appointed to the position, and (b) in the case of the holder of such a position, that person is liable to be removed from the position. (8) For the purposes of subsection (7), a person fails to co-operate with an investigation or inquiry under subsection (4) if— (a) the person refuses or fails to comply with a request for information from the person conducting the investigation or inquiry, or (b) the person refuses or fails to comply with a request for information from the Commissioner of Police in relation to the preparation of a report under subsection (6), or (c) the person refuses or fails to comply with a request for consent under subsection (6). (9) No compensation is payable to any person as a consequence of the holder of a position to which this section applies being removed from the position under subsection (7). (10) A person is not eligible to be appointed to, or to hold, a position to which this section applies if— (a) the person is, or was at any time during the previous 4 years, an employee of a person who is the holder of, or a close associate of the holder of, a casino licence or a party to a controlled contract with the holder of a casino licence, or (b) the person has, or had at any time during the previous 4 years, directly or indirectly any business or financial association with, or any business or financial interest in any matter in conjunction with, a person who is the holder of, or a close associate of the holder of, a casino licence or a party to a controlled contract with the holder of a casino licence. (11) For the purposes of subsection (10), casino licence includes any licence or other form of authorisation that authorises its holder to conduct casino style gaming in any place outside the State (including outside Australia). (12) In the case of the position of consultant to the Authority, the Authority may waive the operation of subsection (10) in a particular case. (12A) For a position of consultant to the NICC, the NICC may waive the operation of subsection (10) in a particular case. (13) In the case of the position of designated Public Service employee or inspector, the Secretary may waive the operation of subsection (10) in a particular case. 15 Destruction of finger prints etc A person who has possession of any finger prints or palm prints obtained for the purposes of section 14 (or any copies of them) must cause the finger prints or palm prints (or the copies of them) to be destroyed as soon as possible after the person to whom they relate no longer holds a position to which that section applies. Maximum penalty—20 penalty units. 16 Restrictions relating to key officials and former key officials (1) A key official or former key official must not without the approval of the appropriate authority carry out any of the following activities— (a) hold any type of gaming or liquor licence, (b) hold office as a member of the governing body of a registered club, (c) solicit employment, in any capacity, from a gaming or liquor licensee, a person known by the official to be a close associate of such a licensee or from a gaming or liquor industry peak body, (d) be an employee in any capacity of— (i) a gaming or liquor licensee, or (ii) a person known by the official to be a close associate of a gaming or liquor licensee, or (iii) a casino contractor, or (iv) a gaming or liquor industry peak body, (e) knowingly have, directly or indirectly, any business or financial association with, or any business or financial interest in any matter in conjunction with, a gaming or liquor licensee or a person known by the official to be a close associate of such a licensee, (f) be a close associate of a person known by the official to be an applicant for, or the holder of, a gaming or liquor licence. Maximum penalty—50 penalty units. (2) A gaming or liquor licensee or a close associate of such a licensee must not without the approval of the appropriate authority carry out any of the following activities— (a) employ, in any capacity, a person known by the licensee or close associate to be a key official or former key official, (b) knowingly have, directly or indirectly, any business or financial association with, or any business or financial interest in any matter in conjunction with, a person known by the licensee or close associate to be a key official or former key official. Maximum penalty—50 penalty units. (2A) A key official, former key official, gaming or liquor licensee or close associate may apply in writing to the appropriate authority for an approval under this section. (2B) The appropriate authority may grant an approval under this section if the appropriate authority is satisfied that the carrying out of the activity does not involve, or is unlikely to involve, any undue risk that is inconsistent with the objects of this Act. (2C) The regulations may make provision for and with respect to the criteria to be used by the appropriate authority in determining whether to grant an approval under this section. (3) Approvals granted by the appropriate authority under this section are to be recorded and available for public inspection. (3A) The Minister may, by order in writing published in the Gazette, determine that an association, organisation or other body representing the interests of gaming or liquor licensees is a gaming or liquor industry peak body for the purposes of this section. (4) In this section— appropriate authority, in relation to a key official or former key official, means— (a) in the case of a designated Public Service employee or other Public Service employee, or former designated Public Service employee or other former Public Service employee—the Secretary, or (a1) for a member of staff of the NICC—the NICC, or (b) in the case of a consultant to the Authority or former consultant to the Authority—the Authority, or (b1) for a consultant to the NICC or former consultant to the NICC—the NICC, or (c) in the case of a member of the NSW Police Force or former member of the NSW Police Force—the Commissioner of Police, or (d) in any other case—the Minister. casino contractor means a person who is a party to a controlled contract with a casino operator or with a person who is the subject of a notice under section 38 of the Casino Control Act 1992. former key official means— (a) a person who was a key official (other than a person referred to in paragraph (b) or (c)) at any time during the previous 2 years but who is no longer a key official, or (b) a person who was engaged in the administration of the gaming and liquor legislation and was a designated Public Service employee other than a Public Service senior executive at any time during the previous 6 months but who is no longer a key official, or (c) a person who was at any time General Counsel of the Authority but who is no longer a key official. gaming or liquor industry peak body means an association, organisation or other body determined to be a gaming or liquor industry peak body by order under subsection (3A). 17 Secrecy (1) A person who acquires information in the exercise of functions under the gaming and liquor legislation must not, directly or indirectly— (a) make a record of the information, or (b) divulge the information to another person, except in the exercise of functions under the gaming and liquor legislation. Maximum penalty—50 penalty units. (2) Despite subsection (1), information may be divulged— (a1) to the community at large if the Authority, NICC or Secretary certifies it is in the public interest the information be divulged to the community at large; or (a) to a particular person or body (or to a particular class of persons or bodies) if the Authority, NICC or the Secretary certifies that it is necessary in the public interest that the information be divulged to the person or body or class of persons or bodies, or (b) to a person or body prescribed by the regulations, or (c) to a person who is expressly or impliedly authorised to obtain it by the person to whom the information relates, or (d) to the Minister, or to a person who is engaged in the administration of the gaming and liquor legislation and is authorised in writing by the Minister to receive information under this section. (3) Information to which section 143C of the Casino Control Act 1992 applies may not be divulged under subsection (2) except with the consent of the Commissioner of Police. (4) A person cannot be required— (a) to produce in any court any document or other thing that has come into the person's possession, custody or control by reason of, or in the course of, the exercise of the person's functions under the gaming and liquor legislation, or (b) to divulge to any court any information that has come to the person's notice in the exercise of the person's functions under that legislation. (5) Despite subsection (4), a person may be required to produce a document or other thing in a court or to divulge information to a court if— (a) the Authority or NICC certifies that it is necessary in the public interest to do so, or (b) a person to whom the information relates (or to whom the information contained in the document or thing relates) has expressly authorised it to be divulged to or produced in the court. (6) A person or body to whom or which information is divulged under subsection (2), and a person or employee under the control of that person or body, are, in respect of that information, subject to the same rights, privileges and duties under this section as they would be if that person, body or employee were a person exercising functions under the gaming and liquor legislation and had acquired the information in the exercise of those functions. (7) This section does not apply to the divulging of information to, or the production of any document or other thing to, any of the following— (a) the New South Wales Crime Commission, (b) the Independent Commission Against Corruption, (b1) the Law Enforcement Conduct Commission, (c) the Australian Crime Commission, (d) the NSW Police Force or the police force of another State or a Territory, (e) the Australian Federal Police, (f) any other person or body prescribed for the purposes of this subsection. (8) This section does not prevent a person being given access to a document in accordance with the Government Information (Public Access) Act 2009, unless the document— (a) contains matter the disclosure of which could reasonably be expected to do any of the following— (i) prejudice the investigation of any contravention or possible contravention of the law (including any revenue law) whether generally or in a particular case, (ii) enable the existence or identity of any confidential source of information, in relation to the enforcement or administration of the law, to be ascertained, (iii) prejudice the effectiveness of any lawful method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law (including any revenue law), or (b) is a document the disclosure of which would disclose any of the following information— (i) information concerning the business, commercial, professional or financial affairs of an applicant for a casino licence under the Casino Control Act 1992 or a licence under Part 4 of that Act, (ii) information obtained in the course of an investigation of an application for such a licence, (iii) information concerning the system of internal controls and administrative and accounting procedures for a casino. (9) In this section— court includes any tribunal, authority or person having power to require the production of documents or the answering of questions. produce includes permit access to. Part 4 Investigation and enforcement powers Division 1 Preliminary 18 Purposes for which powers under Part may be exercised (1) Powers may be exercised under this Part for the following purposes— (a) for determining whether there has been compliance with or a contravention of the gaming and liquor legislation, (b) for obtaining information or records for purposes connected with the administration of the gaming and liquor legislation, (c) in connection with exercising the functions of an inspector under the gaming and liquor legislation, (d) generally for administering the gaming and liquor legislation and promoting its objects. (2) Without limiting subsection (1), powers may be exercised under this Part in relation to a casino for the purposes of— (a) observing any of the operations of the casino, and (b) determining whether the operation of a casino is being properly conducted, supervised and managed. 19 Effect on other functions Nothing in this Part affects any function under any other provision of the gaming and liquor legislation or under any other legislation. 20 Appointment and identification of inspectors (1) The Secretary may appoint a Public Service employee to be an inspector for the pu