New South Wales: Totalizator Act 1997 (NSW)

Totalizator Act 1997 No 45 An Act to amend and consolidate the law relating to the conduct of totalizators and the regulation of totalizator betting; to repeal the Totalizator Act 1916 and the Totalizator (Off-course Betting) Act 1964; to make consequential amendments to other Acts; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Totalizator Act 1997. 2 Commencement (1) This Act commences on a day or days to be appointed by proclamation. (2) Different days may be appointed for the repeal of different provisions of any Act repealed by this Act. 3 Objects of Act The objects of this Act are— (a) to make provision for the proper conduct of totalizator betting in the public interest and to minimise any harm associated with such betting. (b) (Repealed) 4 Application of Act This Act applies, unless otherwise expressly provided, to and in respect of the conduct of totalizators, whether on or off a racecourse. 5 Definitions (1) In this Act— agent means a person who under a contract or other arrangement with a licensee conducts a totalizator as the agent of the licensee or exercises as the agent of the licensee any functions in connection with the conduct of a totalizator. approved betting activity means a betting activity that is approved under section 13 (Licensee can be approved to conduct other betting activities) to be conducted by a licensee. authorised betting auditorium has the same meaning as in the Betting and Racing Act 1998. close associate has the meaning given in section 22. conduct a totalizator includes promote, manage and operate the totalizator. contractor means a person who under a contract or other arrangement with a licensee performs any service in connection with the conduct of a totalizator (whether or not the service is performed for fee, gain or reward) and includes an employee of the licensee and an agent of the licensee. controlling bodies is defined in section 6A. exercise a function includes perform a duty. function includes a power, authority or duty. horse race includes a harness race. inspector means a person appointed under section 92 as an inspector. key employee means a person, or a person belonging to a class of persons, prescribed by the regulations to be a key employee in relation to the conduct of a totalizator, other than a person, or a person belonging to a class of persons, who the Minister identifies, in accordance with the regulations, is not a key employee. licence means a licence in force under this Act. licensee means the holder of a licence. major racing bodies is defined in section 6B. nominated company has the same meaning as in section 37A of the Totalizator Agency Board Privatisation Act 1997. off-course totalizator means a totalizator that is not an on-course totalizator. on-course totalizator means a totalizator the bets on which can be placed only by persons on a racecourse. process, in relation to a bet, means any one or more of the following— (a) register the bet, (b) calculate the dividend or other return (if any) payable on the bet, (c) carry out an activity for the purpose of calculating the dividend or other return (if any) payable on the bet, (d) if the bet is a winning bet—pay out on the bet, (e) generate and maintain records in relation to the bet, (f) otherwise deal with the bet. race meeting means a meeting for the purpose of horse racing, harness racing or greyhound racing. racecourse means— (a) land in New South Wales that is licensed as a racecourse under the Betting and Racing Act 1998, or (b) land outside New South Wales (including outside Australia) used for race meetings. racing club means a club, association or other body of persons (whether incorporated or unincorporated) that is registered by a controlling body as a racing club. related body corporate, in relation to a body corporate, has the same meaning as in section 9 of the Corporations Act 2001 of the Commonwealth. rules in relation to a totalizator means the rules relating to the conduct of the totalizator in force under Part 4. subsidiary, in relation to a body corporate, means a body corporate that is a subsidiary of the first mentioned body corporate by virtue of Division 6 of Part 1.2 of the Corporations Act 2001 of the Commonwealth. TAB means the Totalizator Agency Board constituted by the Totalizator (Off-course Betting) Act 1964, and includes the company known as TAB Limited established by the Totalizator Agency Board Privatisation Act 1997. TAB Limited means the company of that name (ACN 081 765 308). totalizator has the meaning given in section 6. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) Notes in the text of this Act do not form part of this Act. 6 Meaning of "totalizator" For the purposes of this Act, totalizator means— (a) a system used to enable persons to invest money on events or contingencies with a view to successfully predicting specified outcomes of those events or contingencies and to enable the money left after the deduction of commission to be divided and distributed among those persons who successfully predict those outcomes, and (b) any instrument, machine or device through or by which the system is operated. Note— Under this Act money can be invested on a totalizator for horse and greyhound races, and on other events approved by the Minister. References in this Act to a totalizator can include a reference to an approved betting activity under section 13. See that section. 6A Controlling bodies (1) For the purposes of this Act, the controlling bodies are Racing New South Wales, Harness Racing New South Wales and the Greyhound Racing New South Wales. (2) For the purposes of this Act, the racing clubs for which a controlling body is responsible are— (a) in the case of Racing New South Wales—racing clubs that promote, conduct or control horse racing, and (b) in the case of Harness Racing New South Wales—racing clubs that promote, conduct or control harness racing, and (c) in the case of the Greyhound Racing New South Wales—racing clubs that promote, conduct or control greyhound racing. (3) If a controlling body ceases to exist, its functions under this Act are conferred on its successor and its successor becomes a controlling body in its place (including for the purposes of the operation of this section). (4) The successor of a controlling body is the body nominated by the Minister by order published in the Gazette. (5) The Minister cannot nominate a body as successor of a controlling body except with the approval of both a majority of the racing clubs for which the controlling body is responsible and of the principal racing club or clubs (as the case may be) for which the controlling body is responsible. (6) If a successor of a controlling body cannot be nominated, there is no successor of that body for the purposes of this section. 6B Major racing bodies (1) For the purposes of this Act, the major racing bodies are the following bodies— (a) the merged racing club (within the meaning of the Australian Jockey and Sydney Turf Clubs Merger Act 2010), (b) (Repealed) (c) Provincial Association of New South Wales, (d) Country Racing Council Limited, (e) New South Wales Harness Racing Club Limited, (f) NSW Greyhound Breeders, Owners & Trainers Association Limited, (g) New South Wales National Coursing Association Limited. (2) If a major racing body ceases to exist, its functions under this Act are conferred on its successor and its successor becomes a major racing body in its place (including for the purposes of the operation of this section). (3) The successor of a major racing body is the body nominated by the Minister by order published in the Gazette. (4) The Minister cannot nominate a body as successor of a major racing body except with the approval of a majority of the racing clubs whose interests the major racing body represented or, where the major racing body did not represent the interests of any racing club, with the approval of a majority of the persons who were members of the major racing body immediately before it ceased to exist. (5) If a successor of a major racing body cannot be nominated, there is no successor of that body for the purposes of this section. Part 2 Conduct of totalizators Note— Section 13 (Licensee can be approved to conduct other betting activities) provides that references in this Part to a totalizator include reference to approved betting activities under that section. 7 Conduct of totalizator by licensee not unlawful (1) The conduct of a totalizator by a licensee is not unlawful, despite the provisions of the Unlawful Gambling Act 1998, the Public Lotteries Act 1996 or any other Act or law. (2) In particular, the Community Gaming Act 2018 does not apply to or in respect of any such conduct of a totalizator. 8 Contracts or agreements relating to totalizator betting enforceable (1) An agreement is not to be regarded as void or voidable, or otherwise unenforceable, merely because it relates to, or is made for the purposes of, betting on a totalizator conducted by a licensee. (2) Without limiting subsection (1), section 56 of the Unlawful Gambling Act 1998 does not apply to or in respect of betting on a totalizator conducted by a licensee. 9 Unlawful conduct of totalizator (1) A person, other than a licensee, who conducts a totalizator is guilty of an offence. Maximum penalty— (a) for an individual— (i) 50 penalty units for a first offence, or (ii) 100 penalty units or imprisonment for 6 months (or both) for a second or subsequent offence, or (b) for a corporation— (i) 250 penalty units for a first offence, or (ii) 1,000 penalty units for a second or subsequent offence. (2) A licensee who conducts a totalizator is guilty of an offence if— (a) the licence does not authorise the conduct of that totalizator or totalizators of that kind, or (b) the totalizator is conducted in contravention of a requirement of or made under this Act, the regulations, the rules or the conditions of the licence. Maximum penalty— (a) for an individual— (i) 50 penalty units for a first offence, or (ii) 100 penalty units or imprisonment for 6 months (or both) for a second or subsequent offence, or (b) for a corporation— (i) 250 penalty units for a first offence, or (ii) 1,000 penalty units for a second or subsequent offence. 9A Processing in New South Wales of bets with conductors of betting activities in other jurisdictions (1) The Minister may, by notice published in the Gazette, approve, for the purposes of this section, any person who is authorised under the law of another State or a Territory or another country to conduct a betting activity in that State, Territory or country (an approved person). (2) An approved person may, while the approval is in force— (a) with the written consent of a licensee, use the systems or technology of the licensee (including any totalizator of the licensee), or (b) arrange for the licensee, on behalf of the approved person, to process in New South Wales bets placed (or to be placed) with the approved person in the conduct, by a method specified in the notice of approval, of a betting activity that the approved person is authorised to conduct in the State, Territory or country concerned. (3) For the purposes of this Act, the processing of bets by an approved person or a licensee in accordance with subsection (2) is taken not to constitute, or involve, the conduct of a totalizator or other betting activity in New South Wales. (4) An approval under this section may be revoked at any time by further notice published in the Gazette. (5) The revocation of an approval does not affect any bet in the course of being processed at the time of the revocation. (6) In this section, bet includes a bet placed (or to be placed) with an approved person otherwise than by way of a totalizator. 9B Processing in other jurisdictions of bets with New South Wales licensees (1) The Minister may, by notice published in the Gazette, nominate, for the purposes of this section, any person who is authorised under the law of another State or a Territory or another country to conduct a betting activity (whether by means of a totalizator or otherwise) in that State, Territory or country (a nominated person). (2) A licensee may, while a nomination is in force— (a) arrange with the nominated person for the licensee to use systems or technology (including a totalizator) of the nominated person, or (b) arrange for the nominated person, on behalf of the licensee, to process, in the nominated person's jurisdiction, bets placed (or to be placed) with the licensee in the conduct of a betting activity that the licensee is authorised to conduct. (3) In taking action under subsection (2), a licensee is, for the purposes of this Act— (a) taken to be conducting a betting activity in New South Wales, and (b) taken to be conducting a totalizator in New South Wales in respect of such of the bets processed under that subsection as were (or are to be) placed with the licensee by way of a totalizator. (4) A nomination under this section may be revoked at any time by further notice published in the Gazette. (5) The revocation of a nomination does not affect any bet in the course of being processed at the time of the revocation. (6) In this section, bet includes a bet placed (or to be placed) with a licensee otherwise than by way of a totalizator. 10 Exculpation of certain persons from certain offences (1) A person is not guilty of an offence under any law merely because— (a) the person makes bets by means of a totalizator conducted by a licensee, or (b) the person is or acts for a licensee and the person conducts a totalizator in accordance with the requirements of or made under this Act, the regulations, the rules and the conditions of the licensee's licence, or (c) in relation to a totalizator conducted in the manner referred to in paragraph (b), the person— (i) is concerned in the conduct of the totalizator, or (ii) prints or publishes any thing relating to the conduct of the totalizator, or (iii) is the owner or occupier of any premises used for the purpose of, or in connection with, the conduct of the totalizator. (2) This section does not affect any offence against this Act or the regulations. Part 3 Licences to conduct totalizators Division 1 General 11 Meaning of "exclusivity period" (1) In this Division, the exclusivity period means the period that begins on the commencement of this section and ends 15 years after a date declared by the Minister by order published in the Gazette to be the operative date for the purposes of this section. The date declared by the Minister as the operative date must not be earlier than the commencement of this section. (2) Despite subsection (1), the exclusivity period includes any extension of the period resulting from the operation of section 17AA. 12 Licences may be granted to conduct totalizators of various kinds (1) A licence may be granted under this Act for the conduct of a totalizator in respect of betting on any one or more of the following events and contingencies— (a) events and contingencies scheduled to be held at a race meeting on any racecourse within or outside Australia (being horse racing, harness racing or greyhound racing events or contingencies), (b) any declared betting event (within the meaning of the Betting and Racing Act 1998). or both. (2) A licence may only be granted to a company incorporated under the Corporations Act 2001 of the Commonwealth or a racing club. (3) A licence may be granted for an on-course totalizator or an off-course totalizator, or both. (4) A licensee may under a contract or other arrangement engage a person to conduct a totalizator on behalf of the licensee as the licensee's agent or to exercise on behalf of the licensee as the licensee's agent functions in connection with the conduct of a totalizator. (5) The licensee may under a contract or other arrangement engage persons to perform any service in connection with the conduct of a totalizator by the licensee. 13 Licensee can be approved to conduct other betting activities (1) The Minister may by instrument in writing approve of the holder of a licence conducting a betting activity (otherwise than by means of a totalizator) on a particular event or contingency or class of events or contingencies, subject to such conditions as the Minister determines. (2) A betting activity may be approved under this section in respect of any of the following events and contingencies— (a) events and contingencies scheduled to be held at a race meeting on any racecourse within or outside Australia (being horse racing, harness racing or greyhound racing events or contingencies), (b) any declared betting event (within the meaning of the Betting and Racing Act 1998), (c) computer simulated horse racing, harness racing or greyhound racing events. (3) The Minister must not under this section approve of a licensee conducting a betting activity that, in the opinion of the Minister, is offensive or contrary to the public interest. (4) The Minister is entitled to require payment of a charge of such amount as the Minister, with the concurrence of the Treasurer, considers appropriate for the grant of an approval under this section and the approval is of no force or effect while any charge payable is unpaid. A charge payable under this section can be set as a specified amount, an amount calculated in a specified manner, or a specified "base" amount plus an amount calculated in a specified manner. (5) Notice of an approval under this section must be published in the Gazette as soon as practicable after the approval is given but a failure to publish the notice does not affect the validity of the approval. An approval remains in force for the period specified in the approval or (if no period is specified) until it is withdrawn. (6) The approval of a betting activity may be given subject to conditions. The conditions become conditions of the licensee's licence and may be substituted, varied, revoked or added to accordingly. (7) When an approval is in force under this section for the conduct by a licensee of a betting activity— (a) the licensee's licence is taken to authorise the conduct of the approved betting activity, and (b) a reference in this Act to a totalizator includes (in respect of the licensee concerned) a reference to the approved betting activity, except in Part 6 (Financial provisions) and except as the regulations may otherwise provide. (8) The Minister may, for any reasonable cause stated in writing by the Minister, withdraw an approval given under this section. The Minister cannot withdraw an approval until the Minister has given the licensee a reasonable opportunity to be heard or to make submissions on the matter. 14 TAB entitled to exclusive off-course totalizator licence (1) TAB or a wholly owned subsidiary of TAB is entitled to be granted a licence (the TAB off-course licence) to conduct an off-course totalizator during the exclusivity period in respect of betting on the following events and contingencies— (a) events and contingencies scheduled to be held at a race meeting on any racecourse within or outside Australia (being horse racing, harness racing or greyhound racing events or contingencies), (b) any declared betting event (within the meaning of the Betting and Racing Act 1998). (2) No other person may be granted a licence for the conduct, during the exclusivity period, of an off-course totalizator in respect of an event or contingency referred to in subsection (1). (3) The Minister may, in the Minister's absolute discretion, grant the TAB off-course licence for a term that is longer than the exclusivity period. Note— The TAB off-course licence is only "exclusive" for the exclusivity period, even if it is granted for a longer period. (4) This section ceases to apply if the exclusive licence is cancelled or otherwise ceases to have effect under this Act. (5) No application under this Act is required for the purposes of the grant pursuant to this section of the TAB off-course licence (whether it is granted for the exclusivity period or for a longer period). 15 TAB and racing clubs entitled to exclusive on-course totalizator licences (1) TAB or a wholly owned subsidiary of TAB is entitled to be granted a licence (the TAB on-course licence) to conduct an on-course totalizator during the exclusivity period in respect of betting on the following events and contingencies— (a) events and contingencies scheduled to be held at a race meeting on any racecourse within or outside Australia (being horse racing, harness racing or greyhound racing events or contingencies), (b) any declared betting event (within the meaning of the Betting and Racing Act 1998). (2) Each racing club (whether or not in existence on the commencement of this section) is also entitled to a licence (a club on-course licence) to conduct an on-course totalizator during the exclusivity period in respect of betting on any event or contingency scheduled to be held at a race meeting on any racecourse within or outside Australia. (3) No other person or body may be granted a licence for the conduct, during the exclusivity period, of an on-course totalizator in respect of an event or contingency to which an entitlement under subsection (1) or (2) applies. (4) The Minister may, in the Minister's absolute discretion, grant any of the licences to which this section applies for a term that is longer than the exclusivity period. Note— A licence is only "exclusive" for the exclusivity period, even if it is granted for a longer period. (5) Subsection (1) ceases to apply if the TAB on-course licence is cancelled or otherwise ceases to have effect under this Act. Subsection (2) ceases to apply to a racing club if its club on-course licence is cancelled or otherwise ceases to have effect under this Act. (6) The Minister can cancel the TAB on-course licence if the TAB off-course licence under section 14 is cancelled or otherwise ceases to have effect. Such a cancellation can be effected by notice in writing to the licensee under the TAB on-course licence and is not subject to the other requirements of this Act regarding cancellation of a licence. (7) No application under this Act is required for the purposes of the grant pursuant to this section of the TAB on-course licence or a club on-course licence, whether it is granted for the exclusivity period or for a longer period. 15AA Only TAB Limited entitled to exclusive approval for betting activity involving computer simulated racing events (1) TAB Limited is the only person entitled to be approved to conduct a betting activity on computer simulated racing events during the exclusive approval period. (2) An approval or authorisation (however described) must not be granted under any other Act to permit the conduct of a betting activity on computer simulated racing events during the exclusive approval period. (3) This section ceases to apply if the licence held by TAB Limited is cancelled or otherwise ceases to have effect under this Act. (4) No application under this Act is required for the purposes of an approval given pursuant to this section. (5) In this section— computer simulated racing events means computer simulated horse racing, harness racing or greyhound racing events. exclusive approval period means the period that begins on the commencement of this section and ends on 6 March 2097 (being the end of the term of the licence held by TAB Limited). 15A Consideration and fees for licences (1) The Minister may determine that an amount is payable as consideration for the grant of a licence under this Act, except a licence granted to a racing club to authorise the operation of an on-course totalizator. Different amounts may be determined for different licences. (2) The Minister may determine a periodic licence fee for a licence under this Act, except a licence granted to a racing club to authorise the operation of an on-course totalizator and a licence granted to TAB or a wholly owned subsidiary of TAB under section 14 or 15. Any such fee is payable in accordance with the regulations. Different fees may be determined for different licences. (3) The Minister can require payment of an amount of consideration payable under this section by payment in money or by the issue of shares to the State or as the Minister may otherwise direct. (4) A licence for which an amount of consideration has been determined to be payable under this section is not to be granted until the amount has been paid or arrangements satisfactory to the Minister have been made for its payment. (5) The regulations may make provision for or with respect to any fee payable under this section and in particular may provide for any of the following— (a) the periods in respect of which a fee is payable, (b) times for payments of fees, (c) payment by instalments, (d) penalties for late payment, (e) suspension or cancellation of a licence for failing to pay a fee, (f) the circumstances in which a fee (or part of a fee) may be refunded. 16 Eligibility for further licence The provisions of this Part are not intended to prevent TAB or a racing club (assuming that they are otherwise qualified) from applying for and being granted further licences in respect of any period beyond the period for which they hold licences granted pursuant to section 14 or 15. 17 Requirements for conduct of on-course totalizators by racing clubs (1) A totalizator established and conducted pursuant to this Act by a racing club on a racecourse on which no authorised betting auditorium is established and conducted may be used only— (a) on days on which race meetings are scheduled to be held on the racecourse, and (b) in connection with races scheduled to be run on any such day or on any subsequent day on the racecourse or on any other racecourse within or outside New South Wales. (2) Any totalizator established and conducted pursuant to this Act by a racing club on a racecourse on which an authorised betting auditorium is established and conducted may be used in connection with any races to be run on that racecourse or on any other racecourse within or outside New South Wales. (3) If both TAB and a racing club are conducting a totalizator in respect of the same event or contingency, all bets made with the racing club in respect of the event or contingency— (a) are to be received by the racing club as agent for TAB, and (b) are to be paid by the racing club into the totalizator conducted by TAB and are to form part of the money invested in that totalizator on the event or contingency. (4) It is a condition of a licence under this Act held by a racing club or by TAB that the licensee is to give effect to the requirements of subsection (3) in respect of bets made with the racing club. Note— Because the bets referred to in subsection (3) are treated as bets received by TAB the commission that can be deducted from the bets is deducted by TAB and not by the racing club. TAB pays the betting tax on the commission deducted and the racing club is not liable for that tax. 17AA Extension of exclusivity period by agreement (1) The Minister is authorised, on behalf of the Crown in right of the State, to accept the offer made by TAB Limited in the tabled copy of the deed poll to enter into the deed entitled "NSW Exclusivity Deed" set out in Attachment 1 to that deed poll. (2) The tabled copy of the deed poll is the copy of the deed poll executed by TAB Limited on 19 June 2013 as tabled, by or on behalf of the Minister introducing the Bill for the Totalizator Amendment (Exclusivity) Act 2013, in the Legislative Assembly on the day that the Bill was introduced. (3) If and when the NSW Exclusivity Deed comes into force, the exclusivity period referred to in section 11 is taken for the purposes of this Act (including for the purposes of any provision of a licence that refers to the exclusivity period) to have been extended to include an additional 20-year period— (a) commencing at the beginning of 23 June 2013, and (b) ending at 12.00 am on 23 June 2033. Note— The NSW Exclusivity Deed will, on coming into force, entitle the Crown to be paid specified instalments as consideration for the extension of the exclusivity period. (4) However, subsection (3) ceases to have effect if the NSW Exclusivity Deed is terminated before 23 June 2033 in accordance with clause 5.1 of the Deed and, on such a termination, the exclusivity period referred to in section 11 is taken to have ended for the purposes of this Act (including for the purposes of any provision of a licence that refers to the exclusivity period). (5) For the avoidance of doubt, it is declared that— (a) the Minister for Tourism, Major Events, Hospitality and Racing was authorised, on behalf of the Crown in right of the State, to conduct negotiations with TAB Limited concerning the extension of the exclusivity period referred to in section 11 (including in relation to the consideration payable to the Crown for any such extension), and (b) the tabling of the tabled copy of the deed poll as provided by this section does not abrogate, limit or otherwise affect any right or liability of any person arising under or in relation to the deed poll or the NSW Exclusivity Deed after it comes into force, and (c) except as provided by subsection (4), nothing in section 107 (No right to compensation for cancellation etc) abrogates, limits or otherwise affects any claim or any other action by TAB Limited against the Crown in right of the State under the NSW Exclusivity Deed after it comes into force. (6) This section has effect despite anything to the contrary in this Act or any other law. 17A Competition authorisations (1) The following conduct is specifically authorised by this Act for the purposes of the Competition and Consumer Act 2010 of the Commonwealth and the Competition Code of New South Wales— (a) the grant of the TAB off-course licence, the TAB on-course licence and a club on-course licence referred to in sections 14 and 15 of this Act, (b) conduct authorised or required by or under the terms or conditions of a licence referred to in paragraph (a), (b1) conduct authorised by section 9A or 9B, (b2) in relation to an arrangement comprised by a deed referred to in section 17AA— (i) entering into the arrangement, or (ii) giving effect to the arrangement, or (iii) conduct of the parties to the arrangement in negotiating the arrangement, (c) entering into an arrangement or proposed arrangement approved under this section, (d) giving effect to an arrangement approved under this section, (e) the giving of a direction pursuant to clause 15 (Power of controlling bodies to give directions) of Schedule 2 and any conduct engaged in in compliance with any such direction, (f) the exclusive approval of the holder of a licence conducting a betting activity on computer simulated horse racing, harness racing or greyhound racing events as referred to in section 15AA. (2) The Minister may by order published in the Gazette approve of the following for the purposes of this section— (a) any arrangement or proposed arrangement entered into or to be entered into for the purposes of section 21A (Commercial arrangements with the racing industry), 43(2) or 43A, (b) any arrangement or proposed arrangement that in the opinion of the Minister is associated with and necessary or convenient for giving effect to a licence referred to in subsection (1) or an arrangement or proposed arrangement referred to in paragraph (a). (3) An approval under this section must identify the parties to the arrangements concerned. (4) Conduct authorised by this section is authorised only to the extent (if any) that it would otherwise contravene Part IV of the Competition and Consumer Act 2010 of the Commonwealth and the Competition Code of New South Wales. (5) In this section— arrangement includes agreement and understanding. giving effect to an arrangement includes— (a) complying with any obligation under the arrangement, and (b) exercising or enforcing any right or power under the arrangement. Note— Section 51 of the Competition and Consumer Act 2010 of the Commonwealth and the Competition Code of New South Wales provide that anything that is authorised by an Act is to be disregarded in deciding whether a person has contravened Part IV of the Competition and Consumer Act 2010 and the Competition Code (which relates to restrictive trade practices). Division 2 Applications for and grant of licences 18 Application for licence (1) An application for a licence to conduct a totalizator is to be made to the Minister. (2) An application is to be in such form, and accompanied by such information and documents, as the Minister requires. 19 Restriction on maximum shareholding in applicant The Minister must not grant an application for a licence to a company unless satisfied that no person has a prohibited shareholding interest in the company (within the meaning of Division 3). 20 Licensee not to be associated with casino and other activities (1) A person to whom this section applies must not— (a) hold a casino licence under the Casino Control Act 1992, or (b) hold any other licence, or conduct any other business or activity, that is prescribed by the regulations for the purposes of this section. (2) This section applies to the following persons— (a) the licensee, (b) a subsidiary of the licensee, (c) a related body corporate of the licensee. (3) However, subsection (1)(a) does not apply to or in respect of the nominated company or a related body corporate of the nominated company during any period during which the exemption granted to the nominated company and any related body corporate by section 32A is in force. 21 Suitability of applicant and close associates of applicant (1) The Minister must not grant an application for a licence unless satisfied that the applicant, and each close associate of the applicant, is a suitable person to be concerned in or associated with the conduct of a totalizator. (2) For that purpose, the Minister is to consider whether— (a) each of those persons is of good repute, having regard to character, honesty and integrity, and (b) each of those persons is of sound and stable financial background, and (c) in the case of an applicant that is not a natural person, it has or has arranged a satisfactory ownership, trust or corporate structure, and (d) the applicant has or is able to obtain financial resources that are both suitable and adequate for ensuring the financial viability of the proposed totalizator, and (e) the applicant has sufficient business ability to establish and conduct a successful totalizator, and (f) the applicant has or is able to obtain the services of persons who have sufficient experience in the conduct of a totalizator, and (g) any of those persons has any business association with any person, body or association that, in the opinion of the Minister, is not of good repute having regard to character, honesty and integrity or has undesirable or unsatisfactory financial sources, and (h) each director, partner, trustee, executive officer and secretary and any other officer or person determined by the Minister to be associated or connected with the ownership, administration or management of the operations or business of the applicant or a close associate of the applicant is a suitable person to act in that capacity. (3) (Repealed) (4) The Minister must not grant an application for a licence unless satisfied that section 20 (Licensee not to be associated with casino and other activities) would not be contravened as a result of the grant of a licence to the applicant. 21A Commercial arrangements with the racing industry (1) The Minister must not grant a licence (including a licence to TAB under section 14 or 15, but not including a licence to authorise a racing club to operate an on-course totalizator) unless— (a) the Minister is satisfied that the applicant has made commercial arrangements with the racing industry in respect of the licence and the conduct of activities authorised by the licence, and (b) the racing industry has provided the Minister with a written acknowledgment to the effect that the racing industry is satisfied with those arrangements, and (c) the Minister has been provided with a copy of any agreement or other instrument that those arrangements involve. (2) For the purposes of this section, the racing industry comprises such one or more persons as the controlling bodies and major racing bodies nominate in writing to the Minister for the purposes of the licence concerned. A nomination in respect of a particular licence cannot be changed after it is made unless the Minister consents. 22 Meaning of "close associate" (1) For the purposes of this Act, a person is a close associate of an applicant for, or the holder of, a 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 totalizator business of the licence applicant or holder, and by virtue of that interest or power is or will be able (in the opinion of the Minister) to exercise a significant influence over or with respect to the conduct of that totalizator 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 totalizator business of the licence applicant or holder. (2) In this section— relevant financial interest means— (a) any share in the capital of the business, or (b) any entitlement to receive any income derived from the business, whether the entitlement arises at law or in equity or otherwise. relevant position means the position of director, manager, and other executive positions and secretary, however those positions are designated, and such other positions as may be prescribed by the regulations for the purposes of this definition. 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. 23 Investigation of application (1) On receiving an application for a licence, the Minister must carry out all such investigations and inquiries as the Minister considers necessary to enable the Minister to consider the application properly. (2) In particular, the Minister— (a) may require any person the Minister is investigating in relation to the person's suitability to be concerned in or associated with the conduct of a totalizator to consent to having his or her photograph, fingerprints and palm prints taken, and (b) must refer to the Commissioner of Police details of the persons the Minister is investigating, copies of any photographs, fingerprints and palm prints taken and any supporting information that the Minister considers appropriate for referral to the Commissioner. (3) The Commissioner of Police is to inquire into and report to the Minister on such matters concerning the application as the Minister may request. (4) The Minister may refuse to consider an application for a licence while any person from whom the Minister requires a photograph, fingerprints or palm prints under this section refuses to allow his or her photograph, fingerprints or palm prints to be taken. 24 Minister may require further information etc (1) The Minister may, by notice in writing, require a person who is an applicant for a licence or who, in the opinion of the Minister, has some association or connection with the applicant that is relevant to the application to do any one or more of the following things— (a) to provide, in accordance with directions in the notice, such information, verified by statutory declaration, as is relevant to the investigation of the application and is specified in the notice, (b) to produce, in accordance with directions in the notice, such records relevant to investigation of the application as are specified in the notice and to permit examination of the records, the taking of extracts from them and the making of copies of them, (c) to authorise a person described in the notice to comply with a specified requirement of the kind referred to in paragraph (a) or (b), (d) to furnish to the Minister such authorities and consents as the Minister directs for the purpose of enabling the Minister to obtain information (including financial and other confidential information) from other persons concerning the person and his or her associates or relations. (2) If a requirement made under this section is not complied with, the Minister may refuse to consider the application concerned. (3) A person who complies with a requirement of a notice under this section does not on that account incur a liability to another person. 25 Cost of investigations to be paid by applicant (1) The reasonable costs incurred by the Minister in investigating and inquiring into an application for a licence are payable to the Minister by the applicant, unless the Minister determines otherwise in a particular case. (2) The Minister may require part or full payment in advance of the amount the Minister estimates will be payable by the applicant and may refuse to deal with the application until the required payment is made. (3) Investigation and inquiry costs may include travelling expenses within or outside the State. (4) It is a condition of any licence granted to the applicant that any amount payable under this section is paid. 26 Updating of applications (1) If a change occurs in the information provided in or in connection with an application for a licence before the application is determined, the applicant must as soon as possible give the Minister written particulars of the change verified by statutory declaration. Maximum penalty—50 penalty units. (2) Particulars of any change given by the applicant are then to be considered to have formed part of the original application for the purposes of the application of subsection (1) to any further change in the information provided. (3) This section does not apply to a change in information if the Minister has notified the applicant in writing that the Minister does not require particulars of any change in the information concerned or does not require particulars of the type of change concerned. 27 Grant of licence (1) The Minister may, after considering an application for a licence— (a) grant a licence to the person making the application, or (b) refuse to grant a licence. (2) The Minister may grant a licence subject to any conditions determined by the Minister and specified in the licence. (3) A licence may be granted to one person or 2 or more persons jointly. 28 Term of licence A licence remains in force for the period for which it is granted, as specified in the licence, unless sooner cancelled or surrendered. 29 No proprietary right in licence A licence confers no right of property and is incapable of being assigned or mortgaged, charged or otherwise encumbered. This section does not prevent a licensee from conducting activities authorised by the licence in the course of a joint venture or other arrangement to which the licensee is a party. Division 3 Maximum shareholding restrictions on licensees 30 Division applies only to companies This Division applies only to a licensee that is a company incorporated under the Corporations Act 2001 of the Commonwealth the licence of which authorises the conduct of an off-course totalizator. 30A References to Corporations Law in this Division A reference in this Division (other than section 30) to the Corporations Law (or a provision of that Law) is a reference to that Law (or the provision of that Law) as in force on 6 March 1998. 31 Definitions (1) In this Division— officer, in relation to a licensee, has the same meaning as in section 9 of the Corporations Law. voting share in relation to a licensee, has the same meaning as in section 9 of the Corporations Law. (2) For the purposes of this Division, a person is an associate of another in relation to a licensee— (a) if the Minister— (i) is of the opinion that the person and the other are likely to act in concert with a view to taking control of, or exercising significant influence over, the licensee against the public interest, and (ii) by notice in writing served on the licensee, declares that the person is an associate of the other in relation to the licensee, or (b) if the person is an associate of the other within the meaning of Division 2 of Part 1.2 of the Corporations Law, with that Division modified by omitting sections 13, 14, 16(2) and 17 of that Law and by substituting for paragraphs (b) and (c) of section 12(1) of that Law the following— or (b) the primary person's entitlement, as provided by section 609, to shares in a body corporate. (3) Where notice of a declaration under subsection (2) is served on a licensee, the Minister must, at the same time or as soon as practicable thereafter, cause written notice of the declaration to be served on the persons to whom the declaration relates. (4) For the purposes of this Division, a person has a relevant interest in a share if, and only if, the person would be taken to have a relevant interest in the share because of Division 5 of Part 1.2 of the Corporations Law if sections 33 and 35(c) of that Law were disregarded. (5) For the purposes of this Division, the voting shares in a licensee to which a person (being the licensee or any other person) is entitled include voting shares in the licensee to which the person is entitled in accordance with section 609 of the Corporations Law, as if in that section a reference to an associate were a reference to an associate for the purposes of this Division and a reference to a relevant interest were a reference to a relevant interest to which subsection (4) of this section applies. (6) A reference in this Division to the Corporations Law is a reference to that Law as it would apply if references in that Law to a body corporate, corporation or company included references to— (a) a body corporate of any kind wherever formed or incorporated and whether formed or incorporated under that Law or any other law, and (b) any unincorporated body, being a society, association, company of proprietors or other body, wherever formed, that, under the law of its place of formation, may sue or be sued, or may hold property in the name of the secretary or some other officer of the society, association or body, or in the name of any trustee or trustees, and (c) any unincorporated body, being a society, association, company of proprietors or other body or undertaking to which is applied, under the laws of the place of its formation, with or without exceptions, a law in force in that place relating to companies or corporations as if it were a company or corporation within the meaning of that Law. (7) The regulations may provide that relevant interests, or particular classes of relevant interests, in shares, or in particular classes of shares, are, in such circumstances and subject to such conditions (if any) as are specified in the regulations, to be disregarded for such purposes as are specified in the regulations. (8) If a whole or a portion of the share capital of a licensee consists of stock, a reference in this Division to a number of shares in the licensee as a percentage is, in relation to an amount of stock, a reference to the amount of stock that represents that number of shares. 32 Application of Division This Division (including any provision of the Corporations Law referred to or applied for the purposes of this Division) applies in relation to any transaction, agreement, arrangement, understanding or undertaking— (a) whether the transaction, agreement, arrangement, understanding or undertaking is entered into, or made, in this State or elsewhere, and (b) whether the shares (if any) to which the transaction, agreement, arrangement, understanding or undertaking relates are registered in this State or elsewhere, and (c) whether the proper law of the transaction, agreement, arrangement, understanding or undertaking is the law of this State or not. 32A Exemption for nominated company The other provisions of this Division do not apply to or in respect of the nominated company or a related body corporate of the nominated company (other than a licensee or a subsidiary of a licensee), in relation to its entitlement to voting shares in TAB Limited, during any period during which the exemption granted to the nominated company and any related body corporate by section 37A of the Totalizator Agency Board Privatisation Act 1997 is in force. 33 Prohibited shareholding interest (1) A person has a prohibited shareholding interest in a licensee if the person is entitled to voting shares in the licensee that together constitute more than 10% of the total number of voting shares in the licensee. (2) For the purposes of this Division, a licensee or a subsidiary of a licensee cannot have a prohibited shareholding interest in the licensee. (3) A person must not have a prohibited shareholding interest in a licensee. A person who contravenes this subsection is guilty of an offence. Maximum penalty—100 penalty units. 34 Power to require information relating to entitlement to shares in licensee (1) The Minister, or a director or the secretary of a licensee, may, by notice in writing served on a person who is, or is suspected by the Minister, director or secretary, as the case may be, of being entitled to shares in the licensee, require the person to furnish information specified in the notice for the purpose of determining whether that person or any other person has, or is taking action to acquire, a prohibited shareholding interest in the licensee. (2) A notice under subsection (1) may require the person on whom the notice is served, or, if that person is a corporation, 2 directors of the corporation, to verify by statutory declaration any information furnished in compliance with the notice. (3) If— (a) a person on whom a notice under subsection (1) has been served fails to furnish, within the period required by the notice, the information required by the notice, verified as required by the notice, or (b) information furnished by the person in response to the notice is, in the opinion of the Minister, by reason of anything included in it or omitted from it, false or misleading in a material particular, the Minister may, by reason only of that fact, by notice in writing served on the licensee concerned, do one or more of the following— (c) declare that the person is an associate of another, or that another is an associate of that person, (d) declare that the person, or another to whom a declaration under paragraph (c) relates, is entitled to specified shares in the licensee concerned, (e) declare that the person, or another to whom a declaration under paragraph (c) relates, has a prohibited shareholding interest in the licensee concerned. (3A) A declaration under subsection (3) has effect according to its tenor for the purposes of this Division. (4) If notice of a declaration under subsection (3) is served on a licensee, the Minister must, at the same time or as soon as practicable thereafter, cause written notice of the declaration to be served— (a) on the person to whom the declaration relates, and (b) in the case of a declaration under paragraph (e) of that subsection—on the holder of the shares to which the declaration relates. (5) A person who fails to comply with a requirement of a notice under this section, or in purported compliance with such a requirement furnishes information that is false or misleading in a material particular, is guilty of an offence. Maximum penalty—100 penalty units. (6) It is a defence to a prosecution of a person for an offence under subsection (5) if it is proved that, at the time the information was furnished, the person believed, on reasonable grounds— (a) in the case of false information—that the information was true, or (b) in the case of misleading information—that the information was not misleading. (7) A person is not liable to be convicted of both an offence under subsection (5) and an offence under Chapter 4 (Perjury, false statements etc) of Part 7 of the Crimes Act 1900 in respect of the same incident. Section 112 (False or misleading information) does not apply to the furnishing of information under this section. 35 Substantial shareholders to give notice to Minister (1) A person who is required to give notice to a licensee under a provision of Part 6C.1 of the Corporations Act 2001 of the Commonwealth must give a copy of the notice to the Minister within the time that the notice is required under that Act to be given to the licensee. Maximum penalty—100 penalty units. (2) A licensee must notify the Minister in writing within 2 business days after it receives a notice from a person under a provision of Part 6C.1 of the Corporations Act 2001 of the Commonwealth, informing the Minister of the name and address of the person from whom the notice was received. Maximum penalty—100 penalty units. 36 Disposal, forfeiture etc of shares where prohibited shareholding interest (1) If the Minister— (a) makes a declaration under section 34(3), or (b) forms the opinion and, by notice in writing served on a licensee, declares under this subsection, that a person (in this section referred to as the offender) has a prohibited shareholding interest in a licensee, the Minister may, by notice in writing served— (c) if the offender holds voting shares in the licensee to which the offender is entitled—on the offender, or (d) on any other person who holds voting shares in the licensee to which the offender is entitled, declare that the offender or that other person must dispose of the relevant number of those shares, or a specified number of those shares not exceeding the relevant number, otherwise than to the offender or an associate of the offender within a specified period, being not less than 3 months after service of the notice. (2) For the purposes of subsection (1), the relevant number of shares that a person may be required by a notice under that subsection to dispose of is— (a) subject to paragraph (b), the number of shares held by the person that would need to be so disposed of in order to cause the offender to cease to have a prohibited shareholding interest in the licensee, or (b) if, after all the shares in the licensee held by the person to which the offender is entitled were so disposed of, the offender would continue to have a prohibited shareholding interest in the licensee—the total number of those shares. (3) For the purposes of this section, a person is not to be taken to have disposed of shares in a licensee to which an offender is entitled unless and until the person ceases to hold the shares and the offender ceases to be entitled to the shares. (4) If a person served with a notice of a declaration under subsection (1) requiring the person to dispose of shares in a licensee fails to comply with the notice within the period specified by the notice, the shares to which the notice relates are, by force of this subsection, forfeited to the State. (5) If a transaction is entered into with respect to any shares in a licensee and— (a) a person who did not, before the transaction is entered into, have a prohibited shareholding interest in the licensee would have such an interest after the transaction, or (b) a person who, before the transaction is entered into, had a prohibited shareholding interest in the licensee would be entitled after the transaction to a greater number of voting shares in the licensee than the person was entitled to immediately before the transaction, the transaction is not illegal or void as a result of this Division but the shares in the licensee that were the subject of the transaction are subject to forfeiture under subsection (6). (6) The Minister may by written notice served on the parties to a transaction referred to in subsection (5) declare that the shares in the licensee that were the subject of the transaction are forfeited to the State. (6A) A declaration under subsection (6) takes effect when the notices required in respect of the declaration by subsections (6) and (7) are served (or, if they are served at different times, when the one that is served latest is served). (7) The Minister must cause written notice of— (a) a declaration under subsection (1) requiring a person to dispose of shares in a licensee, or (b) a declaration under subsection (6) that shares in a licensee are forfeited to the State, to be served on the licensee. (8), (9) (Repealed) 37 Effect of prohibited shareholding on voting and dividend rights (1) This section applies to any provision of the articles of association of a licensee that— (a) provides for the suspension of any voting rights attaching to voting shares in the licensee as a result of any person who is entitled to the shares having a prohibited shareholding interest in the licensee, or (b) authorises or requires the licensee, as a result of any person having a prohibited shareholding interest in the licensee, to refuse payment, defer payment or suspend any entitlement to payment of any amount or amounts that would otherwise be due from the licensee in respect of any shares in the licensee to which the person is entitled. (2) It is a condition of a licence under this Act that any provision of the articles of association of the licensee to which this section applies cannot be amended or repealed except with the written consent of the Minister. (3) If the Minister is of the opinion that a resolution of a general meeting of a licensee has been passed as a result of the admission of votes that should not, by virtue of a provision of the articles of association of the licensee to which this section applies, have been admitted, the Minister may, by notice in writing served on the licensee, declare the resolution to have been (at all times) null and void. (4) If notice of a declaration under this section is served on a licensee, the Minister must, at the same time or as soon as practicable thereafter, cause written notice of the declaration to be served on each person whose votes should not, in the opinion of the Minister, have been admitted. (5) A notice under this section does not have any effect unless it is served on the licensee within one month after the date of the resolution to which it relates. 38 Making, review and revocation of declarations by Minister (1) A declaration may be made by the Minister under this Division on the basis of such information as the Minister considers sufficient in the circumstances. (2) A declaration of the Minister under this Division other than— (a) a declaration under section 36(1) requiring a person to dispose of shares in a licensee, or (b) a declaration under section 36(6) that shares in a licensee are forfeited to the State, is effective when written notice of the declaration is served on the licensee irrespective of when or whether service is effected on any other person as provided by this Division. (3) If the Minister makes a declaration under this Division in relation to a licensee— (a) the licensee, or (b) any other person on whom notice of the declaration has been served in pursuance of this Division, may apply to the Minister for a review of the declaration. (4) On an application under this section for review of a declaration, the Minister— (a) must allow the applicant and, where the applicant is not the licensee, the licensee, a reasonable opportunity to make submissions in relation to the application, and (b) may, after giving due consideration to any such submissions— (i) confirm the declaration, or (ii) revoke or vary the declaration either conditionally or unconditionally and with effect from the date of the declaration or some other date determined by the Minister. (5) Notwithstanding that an application is made under this section for review of a declaration of the Minister under this Division, the declaration continues to have effect pending determination of the application except as otherwise determined by the Minister. (6) The Minister may, of his or her own motion, by notice in writing served on the person on whom notice of the declaration was served, revoke or vary a declaration of the Minister under this Division with effect from the date of the declaration or some other date determined by the Minister. 39 Appeal against declarations of Minister (1) A licensee or any other person on whom notice of a declaration of the Minister is served under this Division may appeal to the Supreme Court against the declaration. (2) An appeal does not lie against a declaration under section 37 annulling a resolution of a licensee. (3) An appeal under this section must be instit