New Zealand Law Society

1. The Society does not wish to comment on the policy behind this Bill. However, there are several procedural provisions in which interpretation difficulties could arise.

CLAUSE 4: INTERPRETATION

2. The Bill contains a definition of authorised purpose. The phrases charitable purpose, philanthropic purpose and cultural purpose are not defined.

3. Recommendation: That the phrases charitable purpose, philanthropic purpose and cultural purpose be defined.

4. Clause (a)(iv) of the definition of authorised purpose will be open to considerable argument. What is regarded as beneficial? What is regarded as the community? (eg could two people form a community?)

5. Recommendation: That clause (a)(iv) be further defined to refer to social benefit to a significant section of society.

6. The definition of bookmaking is unusual with its reference to making a living.

7. Recommendation: That the definition be amended to refer to income rather than a living.

CLAUSE 8

8. Remote interactive gambling in clause 8(2)(b) is not included in the definition of gambling whereas bookmaking referred to in clause 8(2)(a) is.

9. Recommendation: That remote interactive gambling be included in the definition of gambling in clause 4.

CLAUSE 10

10. Clause 10 sets out an offence for offering or providing credit where the person knows it is intended to be used for gambling. The clause should presumably cover wilful blindness as well.

11. Recommendation:That clause 10(1) be reworded to include the words or ought to know.

CLAUSE 11

12. Clause 11 is intended to prevent advertising of overseas gambling. However the definition of overseas gambling advertisement refers simply to a publication promoting gambling. Clause 11, read literally, prohibits any advertisement of gambling.

13. Recommendation: That the word overseas be inserted before the word gambling in the definition of overseas gambling advertisement in clause 4.

CLAUSE 14

14. Clause 14 provides for an offence to be committed when a person is on premises where illegal gambling occurs without reasonable excuse. It would be clearer for the Act to say that an offence is committed where a person is on premises knowing that illegal gambling is occurring.

15. Recommendation: That clause 14 be amended to refer to being on premises where the person knows or ought to know illegal gambling is occurring.

CLAUSES 17(c) AND 19(c)

16. Clauses 17(c) and 19(c) provide for gambling to be in classes 1/2 if the potential turnover does not exceed $500/$25,000. The clause does not specify however how turnover is to be calculated, eg is it limited to a single act of gambling?

17. Recommendation: That the period of time for calculation of turnover be specified.

CLAUSE 23

18. Clause 23 refers to gambling that is not conducted regularly. The phrase is uncertain.

19. Recommendation: That the phrase not conducted regularly be defined.

CLAUSE 32(i)(g)

20. Clause 32(i)(g) provides for the Secretary to refuse to grant a licence where investigations raise concerns about the suitability of the applicant or its officer. It is unclear what is meant.

21. Recommendation:That clause 32(i)(g) be redrafted to refer to the criteria for unsuitability e.g. criminal convictions, bankruptcy etc.

CLAUSE 36

22. Clause 36 provides for the renewal of class 3 licences by corporate societies but not societies. Presumably this was not intended?

23. Recommendation:That the clause 36 renewal provisions be extended to societies.

CLAUSE 39

24. Clause 39 sets out a procedure for cancellation or suspension of licence. Presumably suspension is to be a stop-gap pending potential cancellation yet 15 working days are given to make submissions against suspension. The Society raises the issue of whether there needs in some cases to be an ability to suspend urgently without allowing time for submissions on 15 days’ notice.

CLAUSE 42(b)

25. Furthermore clause 42(b) provides that a suspension is not effective if there is a decision made to appeal against the decision. Again there may be situations where suspension needs to occur urgently and the suspension needs to take effect during any appeal period.

CLAUSE 45

26. A key person includes one who exercises significant influence in the management of a society (see clause 4). The definition is very wide – could it include bankers or spouses of management?

27. Recommendation:That the definition of key person in clause 4 be redrafted to refer to those in management not those exercising influence in management.

CLAUSE 48(3)

28. Clause 48(3) allows the Secretary to amend/revoke/add conditions of a class 4 operator’s licence. The section is silent on timing, i.e. do the licences have review conditions?

29. Recommendation: That clause 48(3) make it clear when the Secretary may exercise its powers. If it is intended to be "at any time" the clause should say so.

CLAUSE 50(2)

30. Clause 50(2) provides for certain people to ignore specific changes to a society’s governing document. The question arises as to what happens when other parties are not required to ignore the changes, e.g. competing creditors on a winding up.

31. Recommendation:That clause 50(2) make it illegal for the governing document to be changed without the necessary approval, thereby making changes illegal as far as all persons are concerned.

CLAUSE 61

32. Clause 61 appears to contain an error in its title. Presumably the heading should refer to a venue licence.

CLAUSE 61(b)

33. The definition of key person refers to venue personnel. This definition is very wide to include all employed at a venue, eg the cleaner? Clause 66 requires significant changes in relation to a "key person" to be advised.

34. Recommendation: That the definition of key person is narrowed in respect of venue licences to refer to venue operators and managers.

CLAUSE 92(3)

35. Clause 92(3) provides that a Court must cancel a class 4 operator’s licence/venue licence where the net proceeds of gambling are not for an authorised purpose.

36. Given the uncertainties surrounding the meaning of authorised purpose it is questioned whether cancellation should be mandatory.

37. Recommendation: That clause 92(3) be amended to make cancellation discretionary to allow for innocent breaches, given the uncertainty of the definition of authorised purpose.

CLAUSE 104(2)

38. Clause 104(2) creates difficulties where charges are granted or enforced by the Courts, eg charging orders. Is the Act intended to usurp the Court’s function in this regard?

39. Recommendation: That the Select Committee consider whether clause 104(2) should apply in the face of a Court order.