Unlawful Gambling Act 1998 (NSW)

Unlawful Gambling Act 1998 No 113 An Act to impose prohibitions on certain gambling activities and in relation to premises used for gambling; to repeal the Gaming and Betting Act 1912; to amend the Crimes Act 1900 to create an offence of conducting an unlawful gambling operation; to amend certain other Acts; and for related purposes. Part 1 Preliminary 1 Name of Act This Act is the Unlawful Gambling Act 1998. 2 Commencement (1) This Act commences on a day or days to be appointed by proclamation. (2) In particular, different days may be appointed for the commencement of section 60 for the purpose of repealing different provisions of the Gaming and Betting Act 1912, or the regulations under that Act, on different days. 3 Objects of Act The objects of this Act are as follows— (a) to prohibit, in the public interest, certain forms of gambling, (b) to prevent the loss of public revenue that is derived from lawful forms of gambling, (c) to deter criminal influence and exploitation in connection with gambling activities. 4 Definitions In this Act— bookmaker includes any person— (a) who carries on the business of, or who acts as, a bookmaker, bookmaker's clerk or turf commission agent, or (b) who gains, or endeavours to gain, a livelihood wholly or partly by betting or making wagers. declared gambling premises means any premises that are the subject of— (a) an interim declaration under section 20, or (b) a final declaration under section 24. exercise a function includes perform a duty. function includes a duty. gambling includes gaming, betting or wagering. gambling premises means any premises that are— (a) used for playing or taking part in an unlawful game, or (b) used as a common gaming house at common law, or (c) used for or in connection with bookmaking carried on by or on behalf of a person who is not a licensed bookmaker. gaming equipment means any device or thing used, or capable of being used, for or in connection with the playing of an unlawful game. licensed bookmaker and licensed racecourse have the same meanings as they have in the Betting and Racing Act 1998. money includes any valuable thing or any security for money. occupier of premises includes the lessee or sublessee who is not the owner of the premises. owner of premises includes any person who is— (a) entitled to freehold possession of the premises, or (b) in actual receipt of, or entitled to receive, or if the premises were let to a tenant, would be entitled to receive, the rents and profits of the premises. premises includes— (a) a building or structure, or part of a building or structure (such as a room), or (b) any land (whether or not built on), or (c) a vehicle or a vessel (whether or not used in navigation). prohibited gaming device—see section 6. senior police officer means a police officer of or above the rank of senior sergeant. unlawful gambling aid means any money, or any article of a kind prescribed by the regulations for the purposes of this definition, that is used— (a) for or in connection with any form of gambling that is prohibited by or under this Act, or (b) for the purposes of a transaction that is dependent on any such form of gambling, whether or not (in the case of an article) it is ordinarily used for some other purpose. unlawful game—see section 5. 5 Definition of "unlawful game" (1) For the purposes of this Act, the following games are unlawful games— (a) the games called respectively fan-tan, pak-a-pu, two-up, hazard, baccarat, faro or roulette, or any similar game of chance, (b) any game of chance that is played at a table or with gaming equipment, (c) any game involving the use or operation of a prohibited gaming device, (d) any game that involves the disposal of money by lottery or by chance, (e) any game in which the chances are not alike favourable to all the players, including among the players, the banker or other person (if any) by whom the game is managed or against whom the other players play or bet, (f) any game that involves playing or staking against a bank that does not pass from one participant in the game to another— (i) by chance or by regular rotation among all the participants in the game, and (ii) without any requirement to pay a charge or comply with any other condition, (g) any game with cards or other gaming equipment from which a person receives a percentage or share of the amount wagered, (h) any game of skill or chance, or of mixed skill and chance, in which any money is staked or risked by a person on an event or contingency specified by the person and in which— (i) there is a dealer, croupier or banker who is not a participant in the game while acting in such a capacity, or (ii) a person, other than a participant in the game, receives a payment or other benefit from the playing of the game, or (iii) a payment or other benefit is given or sought for the right to participate in the game or for the right to enter the land or premises on which the game is played. (2) In any proceedings in relation to a game alleged to be an unlawful game referred to in subsection (1) (h), it is to be presumed, unless the contrary is proved, that the game was an unlawful game if more than 8 persons (including participants in the game) were in the vicinity of the playing of the game. 6 Definition of "prohibited gaming device" (1) In this Act, prohibited gaming device means a device that— (a) is designed or adapted for the playing of a game for money or a prize (being a game that is a game of chance, or a game that is partly a game of chance and partly a game requiring skill), or (b) is designed or used for the purposes of gambling, or (c) is declared by the regulations to be a prohibited gaming device for the purposes of this Act, or (d) is of a class or description of devices declared by the regulations to be prohibited gaming devices for the purposes of this Act. (2) Without limiting subsection (1) (c) or (d), a device is a prohibited gaming device for the purposes of this Act if the device is kept, used or operated in such circumstances, or in such manner, as may be prescribed by the regulations. (3) A prohibited gaming device does not include a device that— (a) is designed and used solely for the purposes of amusement or entertainment, and (b) is declared by the regulations not to be a prohibited gaming device. (4) A device that would otherwise be a prohibited gaming device is not a prohibited gaming device if— (a) it is kept in a State-owned museum or similar public institution, and (b) it is not used for the purposes of gambling, and (c) it is used only for educational or cultural purposes. 7 Lawful forms of gambling This Act does not prohibit any of the following— (a) conducting a totalizator, or conducting any betting activity, under the authority of a licence granted under the Totalizator Act 1997, (a1) processing bets in accordance with section 9A or 9B of the Totalizator Act 1997, (b) conducting or being a participant in a gaming activity (within the meaning of the Community Gaming Act 2018) that is authorised under that Act, (c) conducting or participating in a public lottery (within the meaning of the Public Lotteries Act 1996) that is authorised under that Act, (d) conducting or participating in a game of two-up that is lawful under the Gambling (Two-up) Act 1998, (e) gambling that is declared lawful under the Casino Control Act 1992, (f) keeping or operating an approved gaming machine within the meaning of the Gaming Machines Act 2001 in a hotel or on the premises of a registered club in accordance with that Act, (g) exhibiting any device for promotional purposes if the device— (i) is exhibited by the holder of a dealer's licence or seller's licence within the meaning of the Gaming Machines Act 2001, and (ii) is exhibited with the approval of the Independent Liquor and Gaming Authority and in compliance with any conditions to which the approval is subject, and (iii) is designed to be used to play a game that could lawfully be played by means of an approved gaming machine within the meaning of the Gaming Machines Act 2001, and (iv) is not used for the purposes of gambling, (h) the possession, keeping, use or operation of a gaming machine within the meaning of the Gaming Machines Act 2001 in the circumstances referred to in section 8 of that Act. (i) (Repealed) Part 2 Unlawful gambling activities Division 1 Unlawful betting and bookmaking 8 Offences relating to unlawful betting (1) For the purposes of this section, the following forms of betting are prohibited— (a) betting on any event or contingency if the person is not present at a licensed racecourse and the bet is made with a bookmaker, (b) betting on any event or contingency (other than a horse race, harness race, greyhound race or declared betting event) when the person is present at a licensed racecourse, (c) betting on any event or contingency when the person is present at a racecourse and a trial meeting (within the meaning of the Betting and Racing Act 1998) is being held at that racecourse, (d) betting on any event or contingency when the person is present at a racecourse and a race meeting is being held at that racecourse in contravention of the Betting and Racing Act 1998. (2) A person who engages in betting that is prohibited by subsection (1) is guilty of an offence. Maximum penalty—50 penalty units or imprisonment for 12 months (or both). (3) A person must not make a bet on any horse race, harness race or greyhound race that is to be held anywhere in Australia if— (a) the bet is made by telephone or electronically by means of the Internet, subscription TV or other on-line communications system, and (b) the bet is made with another person whom the person making the bet knows (or would be reasonably expected to know)— (i) is not a legal bookmaker, or (ii) is not a person who is authorised under the law of any State or Territory to conduct totalizator betting. Maximum penalty—50 penalty units or imprisonment for 12 months (or both). (4) For the purposes of subsection (3)— legal bookmaker means— (a) a licensed bookmaker, or (b) a person who is authorised under the law of any other State or Territory to carry on bookmaking activities. (4A) Subsection (3) extends to a bet that is made by a person while in the State even though the other person with whom the bet is made is outside the State (including outside Australia). (5) To remove any doubt, subsection (3) does not operate to impose any criminal liability on any person other than the person making the bet as referred to in that subsection. (6) The following forms of betting are not prohibited by or under this section (except subsection (3))— (a) betting on a horse race, harness race or greyhound race if the betting takes place at a race meeting that is held at a licensed racecourse on any day approved by the racing controlling body responsible for the type of racing concerned, (b) betting on a horse race, harness race, greyhound race or declared betting event if the betting takes place in an authorised betting auditorium, (c) betting on a declared betting event if the betting takes place at a licensed racecourse and the betting is carried on by a licensed bookmaker in accordance with a declared betting event authority held by the bookmaker, (d) betting on any event or contingency if the betting is made with or accepted by a licensed bookmaker in accordance with an authority under section 16 of the Betting and Racing Act 1998, (d1) betting on any event or contingency if the betting is made by telephone or electronically with a person who is authorised under the law of any other State or Territory, or any other jurisdiction, to carry on bookmaking activities, (e) betting on a horse race, harness race, greyhound race or declared betting event if the betting is made with a totalizator conducted by a licensee under the Totalizator Act 1997 or is otherwise authorised under that Act, (f) betting on a horse race, harness race, greyhound race or declared betting event if the betting takes place at a licensed racecourse— (i) during so much of the day arranged for a race meeting at the racecourse as remains after the conclusion, postponement or abandonment of the race meeting, or (ii) at any time on a day arranged for a race meeting (after the time arranged for the start of the meeting) if the race meeting was cancelled or postponed the day before. (7) In this section, authorised betting auditorium, declared betting event, declared betting event authority and racing controlling body have the same meanings as they have in the Betting and Racing Act 1998. 9 Offence of unlawful bookmaking (1) A person must not carry on bookmaking unless the person is a licensed bookmaker. Maximum penalty— • for a first offence—100 penalty units or imprisonment for 2 years (or both), • for a second or subsequent offence—500 penalty units or imprisonment for 2 years (or both). (2) A person who is a licensed bookmaker must not carry on bookmaking except— (a) at a licensed racecourse when it is lawful for betting to take place at the racecourse, or (b) as permitted under section 16 (Authority to conduct telephone or electronic betting) of the Betting and Racing Act 1998. Maximum penalty— (a) for a first offence, 200 penalty units (in the case of an offence committed by a corporation) or 100 penalty units or imprisonment for 2 years or both (in the case of an offence committed by an individual), or (b) for a second or subsequent offence, 1,000 penalty units (in the case of an offence committed by a corporation) or 500 penalty units or imprisonment for 2 years or both (in the case of an offence committed by an individual). (3) Subsection (2) does not apply in relation to any doubles betting, or call of the card betting, carried on by a licensed bookmaker in accordance with the approval of the Minister. (4) The Minister's approval under subsection (3) is subject to such conditions as the Minister thinks fit to impose. (5) For the purposes of this section— call of the card betting means betting that is carried on in relation to a racing event on a day before the event takes place. doubles betting means betting that is carried on in relation to 2 separate racing events and in respect of which a successful bet requires the selection of the winners of both events. 10 Betting in New South Wales with bookmakers acting illegally A person must not make a bet with another person if the person knows, or would reasonably be expected to know, that the other person is carrying on bookmaking in contravention of this Act. Maximum penalty—50 penalty units or imprisonment for 12 months (or both). 11 Offence of having financial interest in unlawful bookmaking business (1) A person who has a financial interest in a bookmaking business, knowing that the business is being conducted in contravention of this Act, is guilty of an offence. Maximum penalty— • for a first offence—100 penalty units or imprisonment for 2 years (or both), • for a second or subsequent offence—500 penalty units or imprisonment for 2 years (or both). (2) A person is not guilty of an offence under this section if the person proves that he or she— (a) at the time of acquiring the financial interest in the bookmaking business, did not know, and had no reasonable cause to suspect, that the business was being or would be conducted in contravention of this Act, and (b) as soon as practicable after becoming aware that the bookmaking business was being conducted in contravention of this Act, took all reasonable steps to divest himself or herself of the financial interest. (3) In this section— financial interest in a bookmaking business means an entitlement to receive any of the income from the business. 11A Offence of providing remote access betting facilities (1) A person must not make a remote access betting facility available in a public place for use by persons frequenting that place. Maximum penalty— (a) for a first offence, 200 penalty units (in the case of an offence committed by a corporation) or 100 penalty units or imprisonment for 2 years or both (in the case of an offence committed by an individual), or (b) for a second or subsequent offence, 1,000 penalty units (in the case of an offence committed by a corporation) or 500 penalty units or imprisonment for 2 years or both (in the case of an offence committed by an individual). (2) This section does not apply to a remote access betting facility used for betting or facilitating betting on a totalizator or betting activity conducted under the authority of a licence or approval under the Totalizator Act 1997. (3) In this section— public place means a place that the public, or a section of the public, is entitled to use or that is open to, or is being used by, the public or a section of the public (whether on payment of money, by virtue of membership of a club or other body, or otherwise) and, without limitation, includes the premises of a registered club under the Registered Clubs Act 1976 and licensed premises under the Liquor Act 2007. remote access betting facility means any device (such as a computer terminal or telephone) that is for use primarily or exclusively for betting on any event or contingency or for facilitating betting on any event or contingency. Division 2 Unlawful gaming 12 Organising unlawful game (1) A person must not— (a) organise or conduct, or assist in organising or conducting, an unlawful game, or (b) receive a percentage or share from any amount wagered on an unlawful game. Maximum penalty— • for a first offence—50 penalty units or imprisonment for 12 months (or both), • for a second or subsequent offence—100 penalty units or imprisonment for 2 years (or both). (2) A person who acts as a look-out, door attendant or guard in respect of any premises at which an unlawful game is organised or conducted is taken to have assisted in organising or conducting the game unless the person proves that he or she did not know, or could not reasonably be expected to have known, that the unlawful game was being organised or conducted. 13 Selling ticket in unlawful game (1) A person must not sell, or give away, a ticket or chance, or share in a ticket or chance, in an unlawful game. Maximum penalty—50 penalty units or imprisonment for 12 months (or both). (2) In this section— chance means any thing that provides an opportunity to participate in an unlawful game. 14 Participating in unlawful game A person must not participate in, or bet on, an unlawful game. Maximum penalty—50 penalty units or imprisonment for 12 months (or both). 15 Possession and use of prohibited gaming device (1) A person must not— (a) possess a prohibited gaming device, or (b) permit the use or operation of a prohibited gaming device. Maximum penalty— • in the case of a corporation—500 penalty units, • in any other case—50 penalty units or imprisonment for 12 months (or both) for a first offence, and 500 penalty units or imprisonment for 2 years (or both) for a second or subsequent offence. (2) In determining the amount of any penalty for an offence under this section, the court is to take into account the number of prohibited gaming devices involved in the commission of the offence. Division 3 Miscellaneous gambling offences 16 Gambling with minors (1) A person who is of or above the age of 18 years must not— (a) engage in any form of gambling with a minor, or (b) engage in any form of gambling with another person on behalf of a minor, or (c) for fee or reward, send (or cause to be sent) to a minor any inducement to gamble. Maximum penalty—50 penalty units. (2) A person who engages in any form of gambling with a minor, or with another person on behalf of a minor, is taken to have known that the minor was under the age of 18 years unless the person proves that the person had reasonable grounds for believing the minor to be of or above the age of 18 years. (3) If an inducement to gamble refers to a person to whom any payment may be made, or from whom information may be obtained, in relation to any gambling activities, the person so referred to is taken to have sent the inducement (or caused it to be sent) unless the person proves that the person— (a) had not consented to being referred to, and (b) was not in any way a party to, and was wholly ignorant of, the sending of the inducement. (4) If an inducement to gamble is sent to a person at any school or other place of education, and that person (the receiver) is a minor— (a) the person sending or causing the inducement to be sent (the sender) is taken to have known that the receiver is a minor, unless the sender proves that the sender had reasonable grounds for believing the receiver to be of or above the age of 18 years, and (b) the sender is taken to have sent the inducement for fee or reward unless the contrary can be proved. (5) In this section— inducement to gamble means any advertisement, message or document that invites, or may reasonably be implied to invite, the person receiving it— (a) to engage in any form of gambling, or (b) to apply to any person, or at any place, with a view to obtaining information or advice for the purpose of any bet or for information as to any event or contingency on which betting is generally carried on. send includes send by electronic means. 17 Gambling by minors (1) A minor must not participate in any form of gambling. Maximum penalty—20 penalty units. (2) A minor may not be imprisoned, or detained in a detention centre, as a consequence of a failure to pay a penalty that is imposed in respect of an offence under this section. 18 Cheating (1) A person who is engaged in any form of gambling (other than a form of gambling that is prohibited by or under this Act) must not— (a) by a fraudulent trick, device, sleight of hand or representation, or (b) by a fraudulent scheme or practice, or (c) by the fraudulent use of gaming equipment or any other thing, or (d) by the fraudulent use of an instrument or article of a type normally used in connection with gambling (or appearing to be of a type normally used in connection with gambling), obtain, or attempt to obtain, any money or advantage for himself or herself or any other person. Maximum penalty—100 penalty units or imprisonment for 2 years (or both). (2) This section does not limit the operation of any offence relating to cheating under any other Act. 19 Possession of unlawful gambling aids and documents connected with unlawful gambling (1) A person who is in possession of an article or money that may reasonably be suspected of being an unlawful gambling aid is guilty of an offence. Maximum penalty— • for a first offence—50 penalty units or imprisonment for 12 months (or both), • for a second or subsequent offence—500 penalty units or imprisonment for 2 years (or both). (2) A person is not guilty of an offence under subsection (1) if the person proves that he or she did not know, or could not reasonably be expected to know, that the article or money concerned was an unlawful gambling aid. (3) A person who is in possession of any documents or other records, including any computer records, devices or programs, that are kept or used in connection with, or that relate to, any form of gambling prohibited by or under this Act is guilty of an offence. Maximum penalty—50 penalty units or imprisonment for 12 months (or both). Part 3 Unlawful gambling premises Division 1 Declared gambling premises 20 Interim declaration of premises as gambling premises (1) A senior police officer may file with the Local Court an affidavit— (a) stating that the officer believes that certain premises are gambling premises, and (b) setting out the grounds for that belief. (2) Within 5 days after the affidavit is filed, the Local Court must— (a) make an interim declaration that the premises are reasonably suspected of being gambling premises, or (b) determine not to make such an interim declaration. (3) In determining whether or not to make an interim declaration, the Local Court may have regard to— (a) any external or internal observations of the premises, and (b) the external or internal construction of the premises, and (c) the alleged reputation of persons observed entering, leaving or within the premises or in the near vicinity of the premises, and (d) the existence of any of the matters referred to in section 48 (1), and (e) any money observed or found on the premises, and (f) any other matters the court considers relevant. (4) If the Local Court makes an interim declaration, it must fix a date (being at least one month after the date on which the interim declaration is made) for the hearing of any application for the revocation of the interim declaration. 21 Notice of making of interim declaration (1) A senior police officer must cause notice of the making of an interim declaration, and the date fixed for hearing any application for its revocation, to be served on the owner or occupier of the premises the subject of the interim declaration. (2) The notice must be served— (a) personally, or (b) if personal service cannot be effected promptly, by causing a copy of the notice to be fixed to or near the entrance to the premises. (3) A person must not deface, destroy, cover or remove a copy of a notice fixed under this section. Maximum penalty—20 penalty units or imprisonment for 6 months (or both). (4) A senior police officer must also cause notice of the making of an interim declaration, and the date fixed for the hearing of any application for its revocation, to be published— (a) on 2 different days in a newspaper circulating in the area of the premises the subject of the interim declaration, and (b) in the Gazette. 22 Application for revocation of interim declaration (1) The owner or occupier of premises that are the subject of an interim declaration may, not less than 14 days before the date fixed under section 20 (4) in respect of the declaration, make an application for the revocation of the interim declaration. (2) The application is to be made to the Local Court. (3) The person making the application must give notice of the application to a senior police officer not less than 7 days before the date fixed under section 20 (4). 23 Revocation of interim declaration (1) The Local Court may revoke an interim declaration made by the court if— (a) an application for the revocation of the interim declaration is made to the court, and (b) the applicant is able to satisfy the court that the premises the subject of the interim declaration were not gambling premises at the date of filing the affidavit that led to the making of the interim declaration. (2) The revocation of an interim declaration may be subject to such conditions as the Local Court thinks fit, including conditions relating to the giving of undertakings to ensure that the premises will not be used as gambling premises. (3) The revocation of an interim declaration has effect from the date of the court's decision to revoke the interim declaration, or such other date as the court may specify. 24 Final declaration of premises as gambling premises (1) The Local Court may make a final declaration that the premises the subject of an interim declaration are gambling premises if— (a) an application for the revocation of the interim declaration is not made, or (b) an application is made but the applicant is unable to satisfy the court that the interim declaration should be revoked. (2) A final declaration that premises are gambling premises remains in force until it is revoked under section 28 by the Local Court. 25 Submissions as to use of declared gambling premises (1) Any person who, in the opinion of the Local Court, has a sufficient interest in any declared gambling premises is entitled to make submissions to the court on the question of whether the use of the premises for the purposes of any business activity should be prohibited. (2) Those submissions may be made— (a) at the time the Local Court is considering whether to make a final declaration that the premises concerned are gambling premises, or (b) on application by the person after any such final declaration is made. 26 Restriction on use of declared gambling premises (1) The use of the premises that are the subject of a final declaration under section 24 for the purposes of any business activity is prohibited unless, or except to the extent that, the Local Court, when making the final declaration or on a subsequent application, orders that it would be unjust or unreasonable for the prohibition to apply. (2) A person who contravenes a prohibition under this section is guilty of an offence. Maximum penalty—20 penalty units for each day on which the offence is committed, or imprisonment for 12 months, or both. 27 Notice of making of final declaration or revocation of interim declaration (1) If the owner or occupier of gambling premises the subject of a final declaration did not appear, or was not represented, before the Local Court on the making of the final declaration, a senior police officer must cause notice of the making of the declaration to be served on the owner or occupier— (a) personally, or (b) if personal service cannot be effected promptly, by causing a copy of the notice to be fixed to or near the entrance to the declared gambling premises. (2) A person must not deface, destroy, cover or remove a copy of a notice fixed under this section. Maximum penalty—20 penalty units or imprisonment for 6 months (or both). (3) A senior police officer must cause notice of the making of a final declaration, or the revocation of an interim declaration, to be published— (a) on 2 different days in a newspaper circulating in the area of the premises the subject of the declaration, and (b) in the Gazette. 28 Revocation of final declaration (1) A senior police officer, or the owner or occupier of premises that are the subject of a final declaration, may apply for the revocation of the declaration. (2) The application is to be made to the Local Court. (3) An owner or occupier who makes an application must give notice of the application to a senior police officer not less than 7 days before the application is heard. (4) The Local Court may revoke the final declaration if the court is satisfied— (a) that the premises are no longer gambling premises, and (b)