ILGA Court Case to Decide Future of Licensing Conditions

The proceedings considered the regulation of gaming machine entitlements (GMEs) under the Gaming Machines Act 2001 (NSW) (GMA) and if the discretion exercised by ILGA to either impose the challenged conditions or refuse the application was beyond the power of the Authority.

The primary judge, Justice McNaughton, found that ILGA has no relevant overriding discretion to apply the conditions considered by the court, either within the Liquor Act or the GMA, invalidating ILGA’s requirements to have a gambling incident register and employ a responsible gaming officer (RGO). This included a hotel requiring an RGO to be on duty after midnight, and another hotel requiring an RGO to be on duty at all times that EGMs were in operation.

ILGA filed an expedited appeal against the NSW Supreme Court decision and deferred all decisions on GME applications until their appeal is determined.

The matter was heard by Justice Meagher, Justice Kirk and Acting Justice Griffiths on 16 August 2023. The Court of Appeals has reserved the judgment and aims to deliver reserved judgments within three months.

ILGA submitted that:

1. Should the initial ruling be overturned, the defendants pay the applicant’s cost for the proceedings;
2. If the court finds the decisions of ILGA invalid, but does determine the Authority has some discretionary power in gaming-related applications, the matters be sent back to ILGA for review; or
3. If the appeal is upheld, that the primary judge erred on a number of substantive points in their decision and that costs should follow such points.

In arguing their case, ILGA noted that the proceedings concern the proper construction of the Authority’s power and involve questions of law of significant consequences to the administration and regulation of gaming machine entitlements in NSW.

The conditions deemed invalid in the Supreme Court of NSW included:

• the presence of a dedicated RGO
• the maintenance of a gambling incident register.

The Club Gaming Code of Practice includes versions of both these harm-minimisation measures.

If your club is impacted by these proceedings, or has an application with ILGA, please contact ClubASSIST on 1300 730 001 and request to speak with ClubsNSW Research & Policy Officer Amy Broomfield.