Public Lotteries Act 1996 (NSW)

Public Lotteries Act 1996 No 86 An Act to amend and consolidate the law relating to the conduct of public lotteries; to repeal the Soccer Football Pools Act 1975, the Lotto Act 1979 and the New South Wales Lotteries Act 1990 and regulations made under those Acts; to make consequential amendments to other Acts; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Public Lotteries Act 1996. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Objects of Act The objects of this Act are— (a) to make provision for the proper conduct of public lotteries in the public interest and to minimise any harm associated with public lotteries, and (b) to ensure that revenue derived from the conduct of public lotteries is accounted for in a proper manner, and (c) to ensure that, on balance, the State and the community as a whole benefit from the conduct of public lotteries. 4 Definitions (1) In this Act— agent of a licensee means an agent appointed or approved in accordance with the conditions of the licence held by the licensee. commission, in relation to a public lottery, means an amount— (a) paid to, deducted by or retained by an agent in connection with a subscription to the public lottery (whether or not in the person's capacity as an agent of the licensee conducting the public lottery), and (b) determined by or in accordance with, and identified as commission in, the conditions of the relevant licence or the rules of the public lottery. conduct a public lottery includes promote, organise and operate the public lottery. corresponding law means a law of another State, Territory or country under which a person is authorised to conduct a public lottery. exercise a function includes perform a duty. function includes a power, authority or duty. inspector means a person appointed under section 71. keno has the meaning set out in section 5B. key employee means a person (whether or not appointed under a contract of service) who is— (a) employed in a managerial or supervisory capacity in relation to the conduct of a public lottery by a licensee, or (b) authorised to make decisions, involving the exercise of his or her discretion, that regulate the operations of a licensee or an agent in relation to the conduct of a public lottery by the licensee, or (c) concerned or engaged, in any manner prescribed by the regulations, in the conduct of a public lottery by a licensee. licence means an operator licence or product licence in force under this Act. licensee means the holder of a licence. operator licence—see section 10. outgoings for a public lottery conducted by a licensee means the amount required to be paid by the licensee in accordance with section 26 (1) into the prize fund for the lottery. player loss on a public lottery conducted by a licensee means the difference between— (a) the subscriptions to the public lottery and, if the conditions of the licensee's licence so require, the commission payable in respect of those subscriptions, and (b) the outgoings for the public lottery. product licence—see section 10. public lottery has the meaning set out in section 5. rules of a public lottery means the rules relating to the conduct of the public lottery in force under Part 4. subscriptions to a public lottery means the amounts paid for entries in the public lottery, but does not include the following— (a) amounts charged to subscribers by the licensee's agents for providing ancillary services in connection with the subscriptions (as referred to in section 13 (1) (e1)), (b) commission, unless this Act otherwise expressly provides. Note— See sections 26 (3), 28 (4) and 29 (6). symbol includes amount, word or picture. unclaimed prize means a prize that remains unclaimed by the prizewinner for a period of one year after the date on which the public lottery to which the prize relates was conducted. 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. 5 Meaning of "public lottery" (1) For the purposes of this Act, public lottery means any lottery, and includes— (a) a game of chance (including a game such as draw lottery or bingo) in which— (i) persons choose or are allocated numbers, and (ii) certain numbers are subsequently selected at random as prizewinning numbers, and (iii) prizes are distributed to persons holding the prizewinning numbers, or (b) a game of chance (including a game such as instant lottery) in which— (i) certain numbers are designated as prizewinning numbers, and (ii) persons are allocated numbers that have previously been selected at random, and (iii) prizes are distributed to persons holding the prizewinning numbers, or (c) a game of chance (including a game such as lotto, keno or powerball) in which persons choose or attempt to forecast, from designated numbers, fewer numbers to be drawn on a random basis, or (d) the game known as soccer football pool in which persons choose or attempt to forecast, from designated numbers, fewer numbers that represent the outcome of soccer football matches. (2) For the purposes of this section, numbers includes— (a) symbols, or (b) a single number or symbol, or (c) a group or groups of numbers or of symbols (or of numbers and symbols), or (d) a combination or combinations of numbers or of symbols (or of numbers and symbols), or (e) a distribution or distributions of numbers or of symbols (or of numbers and symbols). (3) For the purposes of this section, a person chooses numbers if the person chooses the numbers personally or if the numbers are chosen for the person. 5A Meaning of "close associate" (1) For the purposes of this Act, a person is a close associate of another 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 lottery business of the other person, 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 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 lottery business of the other person. (2) In this section— lottery business means the business conducted or to be conducted by a person under the authority of an operator licence. 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 lottery business of the other person is to be carried on (such as, for example, an entitlement of the owner of premises 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) A financial institution is not a close associate for the purposes of this section by reason only of having a relevant financial interest in relation to a business. 5B Meaning of "keno" (1) For the purposes of this Act, keno means a game of chance that has the following essential features— (a) the selection of 20 winning numbers from the set of numbers 1 to 80, (b) each individual draw is conducted and completed within a 24 hour period, (c) subscriptions are sold only to persons who at the time of sale are on the licensed premises of a club, hotel or casino (regardless of the manner or means of sale). (2) The sale of a multi-game entry does not commence the individual draws to which the multi-game entry relates (so the requirement that each individual draw is conducted and completed within a 24 hour period does not require the draws to which a multi-game entry relates to be conducted and completed within 24 hours after the sale of the multi-game entry). (3) In this section— licensed premises of a club, hotel or casino means— (a) licensed premises to which a club licence under the Liquor Act 2007 relates, or (b) licensed premises to which a hotel licence under the Liquor Act 2007 relates, or (c) premises that form part of a casino within the meaning of the Casino Control Act 1992. multi-game entry means an entry in a number of consecutive games of keno, starting with the game that is open when the entry is sold. Part 2 Conduct of public lotteries 6 Public lotteries not unlawful (1) A public lottery conducted by a licensee is not unlawful, despite the provisions of any other Act or law. (2) In particular— (a) any such public lottery is not an unlawful game for the purposes of the Unlawful Gambling Act 1998, and (b) the Community Gaming Act 2018 does not apply to or in respect of any such public lottery. 7 Contracts or agreements relating to public lotteries 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, a public lottery 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 such a public lottery. 8 Unlawful conduct of public lottery by licensee A licensee who conducts a public lottery is guilty of an offence if— (a) the licence does not authorise the conduct of that public lottery or public lotteries of that kind, or (b) the public lottery 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—100 penalty units. 9 Exculpation of certain persons from certain offences (1) A person is not guilty of an offence under any law merely because— (a) the person is an entrant in a public lottery conducted by a licensee, or (b) the person is or acts for a licensee and the person conducts a public lottery 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 public lottery conducted by a licensee in the manner referred to in paragraph (b), the person— (i) is concerned in the conduct of the public lottery, or (ii) prints or publishes any thing relating to the conduct of the public lottery, or (iii) is the owner or occupier of any premises used for the purpose of, or in connection with, the conduct of the public lottery, or (d) the person prints or publishes the results of, or information as to the prize money payable in respect of, a public lottery conducted under a corresponding law. (2) This section does not affect any offence against this Act. Part 3 Licences to conduct public lotteries Division 1 Grant of licences 10 Operator licences and product licences (1) The Minister can grant the following kinds of licences for the purposes of this Act— (a) an operator licence, which is a licence to conduct any public lottery for which the licensee holds a product licence, (b) a product licence, which is a licence for a particular public lottery that is issued to the licensee under an operator licence to authorise the licensee to conduct the particular public lottery. (2) The grant of an operator licence requires the approval of the Treasurer. (3) A product licence can only be held by the holder of an operator licence. (4) Both kinds of licence can only be held by a corporation or by 2 or more corporations jointly. 11 Considerations for grant of operator licence (1) The Minister is not to grant an operator licence to a person (the applicant) unless satisfied that the applicant and each close associate of the applicant is a suitable person to be concerned in or associated with the management and operation of the business (the lottery business) to be conducted under the licence. (2) For the purpose of determining suitability to be concerned in or associated with the management and operation of a lottery business the Minister is to consider whether— (a) the applicant and each close associate is of good repute, having regard to character, honesty and integrity, and (b) the applicant and each close associate is of sound and stable financial background, and (c) the applicant has, or has arranged, a satisfactory ownership 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 lottery business, and (e) the applicant has or is able to obtain the services of persons who have sufficient experience in the management and operation of a lottery business, and (f) the applicant has sufficient business ability to establish and maintain a successful lottery business, and (g) the applicant has sufficient technical expertise and resources to conduct lotteries of the kind to be conducted as part of the lottery business, and (h) the applicant or any close associate has any business association with any person, body or association who, 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 (i) each director, partner, 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 of the lottery business of the applicant is a suitable person to act in that capacity. (3) This section does not limit the matters that the Minister can consider in determining suitability to be concerned in or associated with the management and operation of a lottery business and does not limit the matters that the Minister can consider in deciding whether to grant an operator licence to the applicant. 12 Considerations for grant of product licence (1) The Minister is not to grant a product licence for the conduct of a game as a public lottery unless satisfied that the game is suitable to be conducted as a public lottery. (2) For the purpose of determining the suitability of a game to be conducted as a public lottery the Minister is to consider— (a) whether the proposed rules of the game are appropriate and sufficient to ensure the game's integrity as a public lottery, and (b) whether the harm minimisation and consumer protection measures proposed for the conduct of the game are appropriate and sufficient for the purposes of the conduct of the game as a public lottery, and (c) such other matters as the Minister considers relevant. 13 Police assistance (1) The Minister and the Commissioner of Police may enter into arrangements for the supply to the Minister of information contained in the records of the NSW Police Force to assist in the effectual administration of this Part. Those arrangements are sufficient authority for the supply of that information. (2) The Minister may arrange with the Commissioner of Police for police officers to be seconded or otherwise engaged to assist the Minister in the exercise of functions under this Part. 14 Conditions of licence (1) The Minister may impose any conditions on a licence at the time of its issue. (2) The Minister may at any time amend the conditions of a licence (by imposing further conditions or by altering or removing existing conditions) but only with the agreement of the licensee. In addition, in the case of an operator licence, the Minister may not amend the conditions of the licence without the approval of the Treasurer. (3) The agreement of the licensee is not required for an amendment to the conditions of a licence under Division 2 (Disciplinary action). (4) The approval of the Treasurer must be obtained for the inclusion in a licence (either at the time of issue or by subsequent amendment) of a condition specifying the general duty or licence duty, or both, to be paid by the licensee to the Treasurer in accordance with Part 5. Note— Part 5 provides for the inclusion of conditions in the licence relating to the prize fund for a public lottery, and to the payment of duty by the licensee in connection with the grant of the licence and the conduct of the public lottery. (5) The conditions of a licence must at all times include the conditions specified in Schedule 1 as the mandatory conditions of the licence. (6) Without limiting the conditions that can be imposed on a licence, any of the conditions specified in Schedule 1 as the optional conditions of a licence can be imposed on a licence. (7) A licensee may apply to the Minister for an amendment of the conditions of the licence and any such application is to be made and determined in accordance with any relevant conditions of the licence. 15 Licence fees The Minister may require the payment of fees for or in connection with the consideration and determination of an application for the grant or transfer of a licence (including fees to cover reasonable costs incurred in investigating and inquiring into any application or proposal for the grant or transfer of a licence). 16 Consideration payment for licence (1) The Minister may, on the occasion of the grant of an operator licence, require the licensee to pay a consideration payment in connection with the grant of the licence. (2) The Minister may determine that the consideration payment is to be payable wholly in respect of the operator licence or may determine that it is to be apportioned between the operator licence and any one or more of the product licences issued to the licensee when the operator licence is issued. (3) The Minister may determine that a consideration payment is to be— (a) a single amount payable on grant of the licence or licences concerned or by a later time determined by the Minister, as consideration for the grant of the licence or licences, or (b) an amount (or variable amounts) payable periodically for the duration of the licence or licences concerned and at the times determined by the Minister, as consideration for the continuation of the licence or licences. (4) A requirement or determination of the Minister under this section requires the approval of the Treasurer. (5) It is a condition of a licence that the licensee must pay any consideration payment that the licensee is required to pay under this section. (6) A consideration payment paid by a licensee pursuant to a requirement under this section is not recoverable on the grounds of, or on any ground arising from, the surrender, cancellation, suspension or transfer of the licence concerned. (7) A consideration payment paid to the Minister under this section is to be paid into the Consolidated Fund. 17 Term of licence (1) A licence is granted for the term specified in the licence. (2) The maximum term for which a licence may be granted is 40 years. 18 Exclusive operator licence (1) An operator licence can, if the Minister thinks fit, be granted as an exclusive licence for any period (the exclusivity period) up to the term for which the licence is granted. (2) If an operator licence is granted as an exclusive licence, no other operator licence can be granted to be in force during the exclusivity period. This does not affect a licence already in force when the exclusive licence is granted. (3) The grant of an exclusive licence does not create an exclusivity period for games of keno, with the result that one or more operator licences limited to a product licence for games of keno can be granted to be in force during the exclusivity period. 19 Transfer of licence (1) A licence can be transferred but only with the approval of the Minister given at the Minister's absolute discretion. The Minister must consult with the Treasurer before approving the transfer of a licence. (2) A product licence can only be transferred to the holder of an operator licence. (3) The Minister is not to approve of the transfer of an operator licence to a person (the transferee) unless satisfied that— (a) the transferee and each close associate of the transferee is a suitable person to be concerned in or associated with the management and operation of the business to be conducted under the licence, and (b) there are satisfactory arrangements for the transfer to the transferee of responsibilities for the conduct and completion of any public lottery being conducted at the time of transfer of the licence. (4) For the purpose of determining whether the transferee or any close associate of the transferee is a suitable person to be concerned in or associated with the management and operation of the business being conducted under the licence, the Minister is to have regard to the same matters to which the Minister is required to have regard in deciding whether an applicant or close associate of an applicant is a suitable person for that purpose. 20 Changes to ownership structure of licensee (1) A significant change in the ownership structure of a licensee must not occur unless the Minister has given consent in writing for the change to occur. (2) A significant change in the ownership structure of a licensee is considered to occur when— (a) a person acquires a relevant interest in issued voting shares in the licensee or any holding company of the licensee and the acquisition results in that person's, or some other person's, voting power in the licensee or holding company increasing from 20% or below to more than 20%, or (b) a person becomes a person who controls, or ceases to be a person who controls, the licensee or any holding company of the licensee. (3) The regulations may prescribe another percentage to replace 20% in subsection (2). (4) Words and expressions used in this section that are defined in section 9 of the Corporations Act 2001 of the Commonwealth have the same meanings as in that section, except in so far as they are defined differently in this Act or the context or subject-matter otherwise indicates or requires. 21 Surrender of licence (1) A licensee may surrender the licence by giving notice in writing to the Minister. If the licence is held by more than one licensee, all licensees must surrender the licence. (2) The surrender takes effect only if the Minister consents to the surrender. Division 2 Disciplinary action 21A Review of suitability of licensee (1) The Minister may from time to time determine whether in the opinion of the Minister the licensee under an operator licence and each close associate of the licensee remains a suitable person to be concerned in or associated with the management and operation of the business conducted under the licence. (2) For the purpose of determining whether the licensee or any close associate of the licensee is a suitable person to be concerned in or associated with the management and operation of the business conducted under the licence, the Minister is to have regard to the same matters to which the Minister is required to have regard in deciding whether an applicant or close associate of an applicant is a suitable person for that purpose. (3) The Minister may require the licensee under an operator licence to pay to the Minister such reasonable costs as may be incurred by or on behalf of the Minister in conducting any inquiry or investigation for the purposes of a determination under this section. (4) It is a condition of an operator licence that the licensee must— (a) provide such information (including necessary consents to facilitate the provision of information) as the Minister may reasonably request for the purpose of making a determination under this section, and (b) pay the costs that the Minister requires the licensee to pay under this section in connection with any inquiry or investigation conducted for the purposes of a determination under this section. (5) The Minister may recover from a licensee (as a debt due to the Crown) any costs that the Minister has required the licensee to pay under this section. (6) The Minister may give a certificate as to the amount of the reasonable costs incurred by or on behalf of the Minister in conducting any inquiry or investigation for the purposes of a determination under this section, and such a certificate is in any proceedings evidence of the matter certified. 21B Grounds for disciplinary action against licensee (1) Each of the following grounds constitutes grounds for disciplinary action against a licensee under this Division— (a) the licensee or any close associate of the licensee is not a suitable person to be concerned in or associated with the management and operation of the business being conducted under the licence, (b) the licensee has failed to comply with a provision of this Act or the regulations, (c) the licensee or any close associate of the licensee has been convicted of an offence under a relevant gaming law, (d) the licensee or any close associate of the licensee has been convicted in the State or elsewhere of an offence in connection with the management or operation of a public lotteries, gaming or wagering business, (e) the licensee or any close associate of the licensee has been convicted of an offence in the State that is an indictable offence or has been convicted elsewhere than in the State of an offence that, if committed in the State, would be an indictable offence, (f) the licensee has failed to comply with the rules of a public lottery conducted by the licensee, (g) the licensee has failed to comply with a condition of the licence or a direction given to the licensee under Division 2 of Part 7, (h) a significant change in the ownership structure of the licensee (as referred to in section 20) occurs without the consent in writing of the Minister as required by that section, (i) the licensee has failed to use reasonable endeavours to ensure that the licensee's agents comply with this Act, the regulations and any direction given by the Minister under Division 2 of Part 7, (j) the licensee has entered into or authorised a dealing with or in respect of securities of, or other instruments issued by, the licensee without the consent in writing of the Minister that, in the opinion of the Minister, affects the control of the licensee, (k) the licensee has become insolvent or an externally-administered body corporate within the meaning of the Corporations Act 2001 of the Commonwealth, (l) the licensee has failed to promptly terminate the employment of a person concerned in the management of the licensee who is convicted of an offence involving fraud or dishonesty, (m) the licence was granted as a result of a material false or misleading representation or declaration. Note— Division 2 of Part 7 enables the Minister to give directions to licensees and other persons engaged in the conduct of public lotteries on a licensee's behalf to protect the integrity of public lotteries and to require the termination of arrangements between licensees and agents and the employment of key employees of licensees for a similar purpose. (2) For the purpose of determining whether the licensee or any close associate of the licensee is a suitable person to be concerned in or associated with the management and operation of the business being conducted under the licence, the Minister is to have regard to the same matters to which the Minister is required to have regard in deciding whether an applicant or close associate of an applicant is a suitable person for that purpose. (3) In this section— relevant gaming law means any of the following laws— (a) Unlawful Gambling Act 1998, (b) Community Gaming Act 2018, (c) Gaming Machines Act 2001, (d) Casino Control Act 1992, (e) any other law (including any law of another State or Territory or of another country) that is prescribed by the regulations as a relevant gaming law for the purposes of this definition. 21C Disciplinary action (1) The Minister can take any of the following disciplinary actions against a licensee if satisfied that there are grounds for disciplinary action against the licensee under this Division— (a) suspend or cancel the licence (but only if there is a sufficient ground for the suspension or cancellation as provided by this Division), (b) amend the conditions of the licence to deal with any act, omission or other circumstance that constitutes a ground for disciplinary action, (c) impose a monetary penalty on the licensee of an amount not exceeding $250,000, (d) direct the licensee to rectify a matter that relates to any act, omission or other circumstance that constitutes a ground for disciplinary action, (e) censure the licensee for any act, omission or other circumstance that constitutes a ground for disciplinary action. (2) A direction to rectify a matter must direct that the matter be rectified within a specified period that is reasonable in the circumstances having regard to the nature of the matter to be rectified. (3) The Minister is not to suspend or cancel a licence except with the approval of the Treasurer. (4) A monetary penalty imposed under this section may be recovered as a debt due to the Crown in a court of competent jurisdiction. 21D Sufficient grounds for suspension or cancellation of licence A ground for disciplinary action is a sufficient ground for the suspension or cancellation of a licence if (and only if) the Minister is satisfied that— (a) the act, omission or other circumstance constituting the ground for disciplinary action is of a serious and fundamental nature and the integrity of the conduct of a public lottery may be jeopardised in a material way or the public interest may be adversely affected in a material way, or (b) the ground for disciplinary action is failure by the licensee to pay any duty payable by the licensee under Division 2 of Part 5. 21E Procedure for taking disciplinary action (1) Before taking disciplinary action, the Minister must first follow the show cause procedure provided for by this Division and then decide whether there is a sufficient ground for the taking of the proposed disciplinary action. (2) The Minister is not required to follow the show cause procedure before— (a) immediately