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 (2) Different days may be appointed for the repeal of different provisions of any Act repealed by this Act. 3 Objects of Act The objects of this Act are— (a) to make provision for the proper conduct of totalizator betting in the public interest and to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 (b) (Repealed) 4 Application of Act This Act applies, unless otherwise expressly provided, to and in respect of the conduct of totalizators, whether on or off a racecourse.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