Gaming Machine Association of New Zealand Incorporated v Feed Families Not Pokies Aotearoa Incorporated
[2025] NZCA 16
•19 February 2025 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA133/2024 |
| BETWEEN | GAMING MACHINE ASSOCIATION OF NEW ZEALAND INCORPORATED |
| AND | FEED FAMILIES NOT POKIES AOTEAROA INCORPORATED |
| Hearing: | 11 November 2024 |
Court: | Collins, Dunningham and Powell JJ |
Counsel: | M S Smith and J W True for the Appellant |
Judgment: | 19 February 2025 at 11 am |
JUDGMENT OF THE COURT
A The appeal is dismissed.
BThe appellant is to pay costs on a band A basis plus disbursements to both the first and second respondents. We certify for second counsel.
____________________________________________________________________
REASONS OF THE COURT
(Given by Powell J)
The Gaming Machine Association of New Zealand Inc (Gaming Machine Association) has appealed a declaration made by Palmer J in the High Court.[1] His Honour declared that amendments to the Gambling Act 2003 (the Act) as enacted by the Gambling (Gambling Harm Reduction) Amendment Act 2013 (the 2013 amendments) prevent what has become known as a Waikiwi application, which had enabled what were described as “minor relocation[s]” of class 4 venues under the Act.[2]
[1]Feed Families Not Pokies Aotearoa Inc v Secretary for Internal Affairs [2024] NZHC 217 [High Court judgment] at [43] and [47].
[2]At [36].
A class 4 venue is defined in the Act as “a place used to operate class 4 gambling”.[3] That is, gambling generally carried out by way of electronic gaming machines,[4] better known to the public as “pokie machines” or “pokies”.
[3]Gambling Act 2003, s 4.
[4]Section 30 and in particular s 30(e)(ii).
In simple terms, a Waikiwi application provided a basis for the Secretary for Internal Affairs (the Secretary) to approve a minor change in the location of gaming machine gambling venues, which had not been provided for in the Act prior to the 2013 amendments.
The practice gained its name from the High Court decision in ILT Foundation v The Secretary for Internal Affairs (“the Waikiwi decision”).[5] In that case, Collins J declared that the then proposed relocation of the Waikiwi Tavern in Invercargill to a different site did not constitute a change in its venue because:[6]
(1) the change in location is minor;
(2) the name of the tavern will remain the same;
(3) the ownership and management of the tavern will not change; and
(4) for all intents and purposes, patrons and the public of Invercargill will regard the tavern as being the same venue, even though its physical location will change in a relatively minor way.
[5]ILT Foundation v The Secretary for Internal Affairs [2013] NZHC 1330 [Waikiwi].
[6]At [33].
Together these reasons have become known colloquially as “the Waikiwi criteria”.
The Waikiwi decision was issued shortly before the enactment of the 2013 amendments. Although the 2013 amendments included a mechanism for the relocation of gaming machine gambling venues, from 2014 until 2018 the Secretary took the view that applications for minor relocations could still be made in reliance on the Waikiwi criteria (Waikiwi relocations). As a result, some 13 Waikiwi relocations were authorised during that period. When the Secretary attempted to curtail the practice by declining an application to relocate, the decision was overruled on appeal by the Gambling Commission.[7] A further 12 Waikiwi relocations have since been granted prior to the High Court judgment. Although Palmer J was clear there was no jurisdiction to grant Waikiwi relocations at all following the 2013 amendments, no declarations were made in respect of those who have received the benefit of past decisions on the basis of the Waikiwi criteria: it was noted they were not parties to the decision under appeal, and any challenge to individual relocations must be made directly by judicial review.[8]
[7]Re New Zealand Community Trust GC04/19, 26 February 2019.
[8]High Court Judgment, above n 1, at [41]–[46].
The Gaming Machine Association submits that Palmer J was wrong in concluding Waikiwi relocations were not available after the 2013 amendments and seeks a declaration on appeal that “Waikiwi Tavern relocations can continue to be made following the 2013 amendments”. It submits that the High Court’s interpretation:
(a)is not supported by the plain meaning and purpose of the 2013 amendments;
(b)is contrary to the statutory text and scheme of the Act; and
(c)does not achieve a workably coherent scheme for the administration of class 4 venue licences.
At a high level the Gaming Machine Association contends the Waikiwi decision was correct when it was decided and remains correct notwithstanding the 2013 amendments. This is because, in its submission, a Waikiwi relocation does not involve a change in a venue at all, and as a result the relocation provisions included in the 2013 amendments are not engaged. Accordingly, the Waikiwi decision and Waikiwi relocations exist alongside the 2013 amendments.
The first respondent, Feed Families Not Pokies Aotearoa Inc (Feed Families Not Pokies), and the second respondent, the Secretary, both oppose the appeal.
The legislative regime prior to the 2013 amendments
There is no dispute as to the components of the legislative regime for gambling at the time the Waikiwi decision was issued and prior to the 2013 amendments taking effect.
Prior to the Act coming into force in 2003, gaming machine gambling was regulated under the Gaming and Lotteries Act 1977 (Gaming and Lotteries Act). The long title to that Act, as enacted, provided:
An Act to make better provision for the conduct of games of chance, prize competitions, and lotteries for amusement and for the raising of funds for certain purposes while continuing to prohibit the conduct of such activities for commercial gain, to continue the prohibition of bookmaking, and to consolidate and amend the Gaming Act 1908 and its amendments.
In contrast, s 3 of the Act as enacted introduced a considerably bleaker vision of the place of gambling in New Zealand society:[9]
[9]Gambling Act 2003, s 3.
3 Purpose
The purpose of this Act is to—
(a) control the growth of gambling; and
(b) prevent and minimise the harm caused by gambling, including problem gambling; and
(c) authorise some gambling and prohibit the rest; and
(d) facilitate responsible gambling; and
(e) ensure the integrity and fairness of games; and
(f) limit opportunities for crime or dishonesty associated with gambling; and
(g) ensure that money from gambling benefits the community; and
(h) facilitate community involvement in decisions about the provision of gambling.
Gone was any reference to “amusement”. The emphasis of s 3 of the Act is on regulation and restriction so as to prevent and minimise harm from gambling. There was no suggestion in purpose (g) that money from gambling provides any net benefit to the community, which was to be included in decisions about the provision of gambling (purpose (h)).
To this end, the body of the Act makes it clear that existing gambling (including gaming machine gambling) is tolerated within strict limits but that no increase in gambling activity is appropriate or provided for.
The Act provides that unless authorised by the Act, the Racing Industry Act 2020 or unless it constitutes private gambling, “gambling is prohibited and illegal”.[10] From this starting point the Act confirms that bookmaking is prohibited and illegal,[11] no new casino venue licences may be granted under the Act,[12] and increased casino gambling is not allowed.[13] The provision of credit for gambling is also prohibited,[14] as is the advertising of overseas gambling.[15]
[10]Gambling Act 2003, s 9(1).
[11]Section 9(2).
[12]Section 10(1).
[13]Section 11.
[14]Section 15.
[15]Section 16.
The Act established six legal classes of gambling.[16] In addition to gambling conducted by the Lotteries Commission and casino gambling, four classes are established of which class 4 (gaming machine gambling) is the most heavily regulated. Classes 1[17] and 2[18] gambling, as the most minor, do not require licences.[19] Class 3 gambling[20] requires an operator’s licence.[21]
[16]Section 20.
[17]See s 22.
[18]See ss 24–25.
[19]Sections 23 and 26 respectively.
[20]Sections 27–28.
[21]Sections 28–29.
Class 4 gambling may only be conducted by a corporate society[22] that holds both a class 4 operator's licence for the gambling itself (operator’s licence),[23] and a class 4 venue licence for the place where the gambling is conducted (venue licence).[24]
[22]Effectively a not-for-profit organisation, but more specifically defined in s 4 of the Act.
[23]Section 31(a).
[24]Sections 31(b).
A venue licence is not transferable.[25] As enacted, the Act contained no specific provision to enable a class 4 venue (venue) to be moved or relocated. It followed that a change in the location of a venue would require a new venue licence.
[25]Section 80.
From the beginning, the Act also imposed hard limits on the number of gaming machines in each venue:
(a)Section 92 provides, under a grandparenting arrangement, that licences held on 17 October 2001 are permitted to have up to 18 machines in a venue.[26]
(b)Section 93 provides that licences issued after 17 October 2001 are limited to a maximum of nine gaming machines,[27] with a ministerial discretion to permit more under s 96.
(c)Section 91 provides that no compensation is payable by the Crown in relation to these provisions.
[26]Section 92(1)–(2).
[27]Section 93(1)–(2).
Applications for operator and venue licences are made to the Secretary under ss 50 and 65 of the Act respectively.[28] Applications for a venue licence must be accompanied by:
(a)“a description of the venue and its location”;[29] and
(b)“…evidence that the class 4 venue is not to be part of a place at which another class 4 venue … is located”.[30]
[28]Sections 50(1) and 65(1).
[29]Section 65(2)(a).
[30]Section 65(2)(k).
Relevant to the present appeal:
(a)Section 67 requires the Secretary to refuse to grant a venue licence unless satisfied of specified matters, including that “the class 4 venue is not to be part of a place at which another class 4 venue … is located”.[31]
(b)Section 70(1) requires a venue licence to include specified “information and conditions” including, under s 70(1)(f), “a description of the class 4 venue and its location”. Section 70 also empowers the Secretary to add, amend, or revoke conditions.[32]
(c)Section 71 requires certain significant changes in relation to a venue licence (which do not include venue movement) to be notified to the Secretary.
(d)Under s 73(1)(a)–(c), a corporate society is required to apply to the Secretary to amend a venue licence if they seek to change their gambling equipment, increase the number of gaming machines or “change any condition of the licence or any procedure that is a condition of the licence”.
The Waikiwi Decision
[31]Section 67(1)(l).
[32]Section 70(3)(a)–(b).
As at June 2013, the Invercargill Licensing Trust Foundation (the ILT) held a venue licence granted under the Gaming and Lotteries Act and grandparented under s 92 of the Act so as to allow it to operate 18 gaming machines at the Waikiwi Tavern in Invercargill.
The ILT wanted to construct a new tavern on land approximately 220 metres away from the existing tavern, with the existing site and the new proposed site separated from the old site by one intervening property. If the ILT was required to apply for a new venue licence, it would lose the ability to rely on s 92 and would therefore be limited to a maximum of nine gaming machines at the new site. Accordingly, the ILT sought a declaration from the High Court that the existing venue licence would apply in the event the tavern relocated as it was not prepared to embark on the redevelopment if the result would be to lose nine of its gaming machines.
In the particular circumstances of the case, in the event that the new tavern building was not found to be the same venue as the existing tavern, the ILT was prepared to acquire the property located between the existing and proposed tavern sites and amalgamate all three titles, apparently so as to ensure that the venue would not change when the gambling operations were moved to the new proposed site.[33] Furthermore, it was noted that the Waikiwi Tavern was the only tavern located in Waikiwi, and had been operating from the existing site for more than 50 years.[34]
[33]Waikiwi, above n 5, at [8].
[34]At [5].
The question for determination in the Waikiwi decision was “whether the new tavern building will be the same venue as the existing tavern building for the purposes of the venue licence provisions of the Act.”[35]
[35]At [3].
After considering the ILT’s proposals and the legislative framework, Collins J commenced his analysis by considering ss 92–94 of the Act, being the provisions imposing limits on the number of gaming machines at a particular venue. His Honour noted that while the word “venue” was used synonymously with “place” in ordinary English[36]
[18] In this case, the text of the Act is not determinative of the term “venue” because, according to the Act, a “venue” means a “place” and a “place”, for present purposes, includes land and buildings. It is important to note, however, that the definition of “place” does not specifically include an “address”, thereby indicating that Parliament did not necessarily intend that the term “venue” mean the land or buildings at a specific address.
[19] Thus, it is possible to conclude that the term “venue” has a wide meaning and that when a building such as the tavern building is relocated to a different site in close proximity to its present address it is still the same venue because:
(1) the new building will be in a site that is very close to the existing site;
(2) the tavern’s name will be the same;
(3) the ownership and management of the tavern will be the same; and
(4)for all intents and purposes, the patrons of the tavern and the public of Invercargill will regard the tavern as having retained its venue even if the building is relocated on a nearby site.
[36]At [17].
The Court noted that this approach was consistent with two earlier decisions of the Gambling Commission.[37] However, finding that the text of ss 92–93 of the Act were “not totally determinative” of the issue, Collins J proceeded to consider the purpose of ss 92–94 and their wider statutory context.[38] With regard to the Act’s purpose, Collins J considered s 3(a) was the most relevant such that “a primary purpose of ss 92–94 of the Act is to control the growth of gambling by limiting the number of gaming machines that a licence holder can operate at its venue.”[39] It was noted that the ILT proposal would not increase the number of gaming machines at the tavern,[40] nor would the ILT lose the benefit of the grandparented gaming machines “in the absence of clear and unequivocal statutory language to that effect.”[41]
[37]At [20]–[23], citing Decision on an appeal by New Zealand Community Trust GC 10/05, 26 April 2005 and Decision on an appeal by Air Rescue Services Ltd GC 35/11, 11 November 2011.
[38]At [23].
[39]At [25].
[40]At [26].
[41]At [27].
The following matters were also noted in the judgment:
(a)Section 65(2)(a) of the Act showed that Parliament did not contemplate that a venue and its location were necessarily synonymous.[42]
(b)Parliament consciously decided not to use “site”, as had been used in the Gaming and Lotteries Act, which indicated that Parliament intended “'venue” to mean something different from “site” and to have a broader meaning not necessarily defined by reference to a specific address.[43]
[42]At [30].
[43]At [31].
Ultimately, Collins J concluded because of the Waikiwi criteria identified in the judgment “that the relocation of the tavern building to the corner site will not constitute a change in its venue”,[44] and commented:
[34] In my assessment, [the ILT] can achieve its objectives without going through the exercise of amalgamating the three titles referred to in paragraph [8] of this judgment. It should not be necessary for [the ILT]to engage in what is effectively a legal charade to achieve its objectives.
The 2013 Amendments
[44]At [32].
As it happened, only 11 days after the Waikiwi decision was released, the Commerce Committee reported back to the House of Representatives on the Gambling (Gambling Harm Reduction) Amendment Bill 2010 (the Bill), first introduced in 2010.[45] As reported back, the Bill included a relocation regime proposed by the Department of Internal Affairs (the Department), which would require territorial authorities to consult about whether existing venues should be able to relocate within their districts, and permitting transfer if territorial authority consent was given. Adopting those amendments the Commerce Committee stated:[46]
We believe the amendments we propose … would create certainty for venue operators and allow them to make investment decisions with confidence. Clause 16 would allow territorial authorities to include relocation policies in their class 4 venue policies, which would set out if and when new venues could be granted consent in place of existing venues. Clause 17 would require territorial authorities, at the next review of their class 4 venue policies, to consider whether or not to include a relocation policy. When developing a relocation policy, territorial authorities would have to consider the social effects of gambling in high-deprivation communities.
…
Relocation of venues
We recommend inserting, by new clause 13, new section 97A into the Gambling Act to preserve the rights attaching to previous venues when a licence is transferred to new premises. The new venue would be permitted to operate the same number of gaming machines as was permitted at the old venue. This would apply only if the territorial authority had given consent for the new venue in accordance with its relocation policy.
Venues that were licensed before 17 October 2001 have maintained the right to operate more than nine machines, which is the current legislative limit. A venue currently loses this right if it moves premises, as the licence is attached to the physical venue. This discourages venues from moving to a more suitable location.
New clause 12 provides that no compensation is payable by the Crown or territorial authorities for any loss arising from the enactment of amendments made by clause 17.
[45]The Bill had been introduced in Parliament as a member's bill by Te Ururoa Flavell MP in September 2010 and referred to select committee in 2012.
[46]Gambling (Gambling Harm Reduction) Amendment Bill (209-2) (select committee report) at 4.
On 4 September 2013, during the third reading debate, Te Ururoa Flavell MP stated:[47]
The bill will also enable gambling venues to transfer out of low socio‑economic areas and into areas where communities want them to move. Councils, as a result of my bill, will now have more tools to enable the transfer of gaming venues into other areas, and I am confident that this will enable councils to further reduce the number of gaming venues.
[47](4 September 2013) 693 NZPD 13259.
The Bill was enacted as the 2013 amendments in September 2013. The stated purpose is as follows:[48]
4 Purpose
The purpose of this Act is to provide additional measures to implement the following purposes of the Gambling Act 2003:
(a)to prevent and minimise the harm caused by gambling, including problem gambling (section 3(b)):
(b)to ensure that money from gambling benefits the community (section 3(g)):
(c)to facilitate community involvement in decisions about the provision of gambling (section 3(h)).
[48]Gambling (Gambling Harm Reduction) Amendment Act 2013.
The 2013 amendments amended eight sections in the Act[49] and added one new section.[50] The specific changes relevant to the present appeal were as follows:
[49]Sections 90, 91, 98, 99, 101, 102, 114 and 314.
[50]Section 97A.
(a)Section 101 was amended to allow territorial authorities to include a relocation policy in their class 4 venue policy, which territorial authorities were already required to adopt pursuant to s 101.[51] “Relocation policy” was defined in s 101(5) as being:
[51]Gambling Act 2003, s 101(3)(c).
… a policy setting out if and when the territorial authority will grant consent in respect of a venue within its district where the venue is intended to replace an existing venue (within the district) to which a class 4 venue licence applies (in which case section 97A applies).
(b)A new s 102(5A) was inserted to require territorial authorities to consider whether to include a relocation policy when next reviewing their class 4 venue policy.
(c)In considering whether to include a relocation policy, the newly inserted s 102(5B) required the territorial authority to consider the social impact of gambling in high-deprivation communities.
(d)The circumstances in which territorial authority consent is required pursuant to s 98 was extended so as to also include when:[52]
[52]Originally s 98(e), now s 98(c).
… a corporate society proposes, in accordance with a relocation policy of the territorial authority, to change the venue to which a class 4 venue licence currently applies.
(e)In the event a relocation was successful:
(i)Section 90, which requires the maintenance of a register of places for which a class 4 venue licence was held as at 17 October 2001, was amended so as to require the register to be amended “if a new place is substituted for such a place in accordance with a relocation policy”.[53]
(ii)A new s 97A provided that the class 4 venue licence that relates to the old venue must be cancelled but that:[54]
… the maximum number of gaming machines permitted to operate at the new venue at the time when the new class 4 venue licence takes effect is the same as the maximum number of gaming machines permitted to operate at the old venue immediately before the licence relating to the old venue is cancelled.
Specifically, “if the old venue was a venue to which section 92 applied, the new venue must be treated as a venue to which section 92 applies.[55]
(f)Finally, s 91 was amended to extend the no compensation clause to loss or damage arising from the operation or enactment of s 102(5A).
Waikiwi relocations continue
[53]Section 90(1).
[54]Section 97A(2)(b).
[55]Section 97A(2)(c)(i).
The 2013 amendments took effect on 14 September 2013. By 15 April 2014, in the course of determining an application to change the location of an existing venue, the Department had confirmed its position that Waikiwi relocations remained available. After reviewing both the Waikiwi decision and the 2013 amendments, the Department concluded a change in the location of a venue, where consistent with the Waikiwi criteria, would not be a change in venue for the purposes of a relocation policy.
Tellingly, the Department commented:
We have concluded that the text of the amendments is capable of supporting the Waikiwi interpretation of venue. If the word “relocation” is disregarded, the text of sections 97A, 98(e) and 101(5) in fact refer to the replacement of one venue with another. Under Waikiwi, there would be no change or replacement of venue at all, just a minor change of location.
On this basis, Waikiwi can exist alongside the changes in the Amendment Act, however, a strict interpretation is required as not to circumvent either the intentions of the Amendment Act and or to detract from the purposes of the Act.
It went on:
We now conclude that if a venue changes its location and they were to satisfy the terms of Waikiwi, there would be no change in venue so there would be no need for territorial authority consent.
Any change of location that does not meet the terms of Waikiwi, would be subject to the amendments to the Act and would mean that provided the move was in accordance with the relocation policy and territorial authority consent, a venue could take its full allocation of machines with it to its new location.
Any change of location then that did not satisfy Waikiwi, or move in accordance with the relocation policy, given a policy exists and allowed a change of location in the first instance would not be able to move and would require a new licence.
Waikiwi style relocations therefore should be permitted across all territorial authorities on the very limited terms of the precedent, thus maintaining what is meant by a venue across bordering districts.
The risk of Waikiwi undermining the community involvement contemplated by the amendments can be managed by taking a strict approach to the requirements of Waikiwi, as it is, after all, a very limited precedent.
Accordingly, venue operators continued to seek Waikiwi relocations.
On 6 May 2018, the Secretary announced a revised position, that the Waikiwi approach would not be available where a territorial authority had adopted a relocation policy, because it would be contrary to the scheme of the Act. However, in February 2019 the Gambling Commission determined on appeal that the Secretary was bound to apply the Waikiwi decision. It stated:[56]
27. The word ''venue” under the Act, and what constitutes a change of venue, was considered in Waikiwi. The High Court held that not all relocations were changes in venue. "Venue" was held to have a wide meaning, so that it was possible for minor movements of premises to occur within the same venue. Provided the four criteria were met, the Court held that there would be no change of venue, nor replacement of an existing venue with a new one.
28. The effect of the Amendment is that territorial consent is required only where there is a proposed change of “venue”. The Amendment made no change to the statutory meaning of “class 4 venue” and “place”, which the Court relied upon. The Amendment applies expressly to relocations or movements that constitute changes of “venue”, and not to relocations within an existing venue. Accordingly, in the Commission's view, the effect of the Amendment was to change the provisions that apply to a proposed change of venue without altering what a change of venue is. Movements which meet the four Waikiwi criteria do not trigger the application of the Amendment and the test in Waikiwi continues to apply in those cases.
[56]Re New Zealand Community Trust GC04/19, 26 February 2019.
The Secretary did not appeal. Instead, the Department resumed consideration and approval of Waikiwi relocation applications.
Ultimately, a total of 34 Waikiwi applications have been made since the 2013 amendments came into force and prior to the decision under appeal. Of those 25 were granted,[57] four were withdrawn prior to determination, three were refused, and two were still under consideration. The mean relocation distance of the granted applications was approximately 138 metres: the shortest was six metres and the longest was 600 metres, a significant distance across the Christchurch CBD. The relocation policy of the relevant territorial authority would not have allowed any of the relocations, bar one. Significantly, at least 32 out of the 34 applications considered under the Waikiwi criteria were from venues having grandparented rights to operate more than nine gaming machines pursuant to s 92.[58]
[57]Including one on appeal to the Gambling Commission.
[58]Out of these venues, 25 could operate 18 gaming machines, four could operate 16, one could operate 14 and one could operate 13.
On 24 August 2023, the Department advised it had again formed the view that Waikiwi relocations were not lawful. It, however, advised that applications made before 21 September 2023, four weeks from the date of the announcement of the change of position, would still be considered in accordance with Waikiwi. It stated it would not apply Waikiwi to any application received after 21 September 2023 unless an applicant could establish they had been unfairly prejudiced by the Secretary's change of position.
The High Court judgment
In the High Court, Palmer J set out the issue to be decided as being whether an interpretation of the Act as amended by the 2013 amendments gives the same result as reached by Collins J in the Waikiwi decision.[59]
[59]High Court Judgment, above n 1, at [31].
His Honour found there was nothing to indicate that, in passing the 2013 amendments, Parliament was responding specifically to the Waikiwi decision.[60] His Honour observed that Parliament was however clearly aware of the general issue of what parameters should be placed on the relocation of class 4 venues.[61]
[60]At [32].
[61]At [32].
Specifically, Palmer J held that:
[33] The thrust of the 2013 Amendment Act was to place the locus of decision‑making about relocation of licenced venues with each territorial authority. That is clearly demonstrated by:
(a)The requirement in s 102 on every territorial authority to consider whether to include a relocation policy in its class 4 venue policy.
(b)The power of a territorial authority in s 101(3)(c) to include a relocation policy in its class 4 venue policy, and the specification in s 101(4) of relevant considerations for the territorial authority in considering that.
(c)The requirement in s 98(c) (as it now is) for territorial authority consent to a proposal to change the venue to which a class 4 licence applies.
His Honour also noted that Parliament had specifically provided for licences to continue benefiting from the grandfathering provision where they obtained consent from the territorial authority in accordance with its relocation policy.[62]
[62]At [34].
Palmer J did not accept the Gaming Machine Association’s submission that a minor relocation would not amount to a change in venue. Drawing upon the new statutory wording introduced by the 2013 amendments, particularly the use of “replace” in ss 101(5) and 97A, his Honour considered there was no longer room in the Act for a venue to be deemed to be the same “venue” at a new “place”.[63] He emphasised that this statutory wording was quite different from the statutory wording considered in the Waikiwi decision.[64]
[63]At [36].
[64]At [36].
Accordingly, Palmer J concluded:
[40] The provisions of the Act need to be read in light of the purpose of the Amendment Act which refers to particular aspects of the purpose of the Act overall. In particular, the purpose in s 3(h) is relevant to the relocation policy provisions: to facilitate community involvement in decisions about the provision of gambling. Read in light of that purpose, the Act, as amended in 2013, sets out a comprehensive legislative and regulatory regime that covers the field in governing the relocation of a venue. The territorial authority, through its relocation policy and its consent power, decides on relocations. A change in the location of a venue will only apply if the territorial authority so consents in accordance with its relocation policy. That extends to, and includes, the sorts of “minor” relocations which the High Court had found a safety valve for in Waikiwi. I accept that the Waikiwi workaround would now undermine the purpose of the Act, as amended in 2013, of placing the decision on venue relocations in the hands of territorial authorities.
…
[47] I declare that what has become known as a Waikiwi application is not available under the Act as amended in 2013. That declaration does not invalidate the amended licences granted by the Secretary since then.
Submissions for the Gaming Machine Association
As noted, the Gaming Machine Association submitted that the Waikiwi decision remains good law notwithstanding the 2013 amendments. In contrast, it contended that Palmer J’s interpretation of the Act:
(a)is not supported by the plain meaning and purpose of the 2013 amendments;
(b)is contrary to the statutory text and scheme of the Act; and
(c)does not achieve a workably coherent scheme for the administration of class 4 venues.
Textual analysis
On behalf of the Gaming Machine Association, Mr Smith argued nothing in the 2013 amendments changes the question determined in the Waikiwi decision: what amounts to a change of venue. On the contrary, he submitted the effect of the 2013 amendments is that a relocation policy is only relevant when a venue changes rather than when the location of a venue changes. In particular, Mr Smith noted:
(a)A relocation policy adopted under s 101(5) applies only where a venue “replaces” an existing class 4 venue. Although “replaces” is not defined in the Act, it is defined in the Oxford English Dictionary as being to take the place of, or becoming the substitute for, a thing. This means that s 101(5) applies when one venue is substituted for another (impliedly different) venue.
(b)The implicit requirement that there must be a change in the venue to trigger a relocation policy is made explicit in s 98(c) of the Act,[65] which provides that a consent is required if and only if a corporate society proposes to “change” a venue to which a venue licence currently applies. This is further confirmed by the language of s 97A referring to “new venues” and “old venues”, and the replacement of the old venue with the new venue. In Mr Smith’s submission, none of this language makes sense in a scenario where the venue has not changed.
[65]Referred to as s 98(e) in the 2013 amendments.
Accordingly, Mr Smith argued that when the term “venue” is correctly interpreted, as it was in the Waikiwi decision, some minor relocations continue to not amount to a change of venue and therefore do not trigger s 98(c). As a result, in those cases territorial authority consent is not required. It follows that the language of the new provisions is not mutually exclusive with the Waikiwi decision, and there would be no reason why the relocation provisions and Waikiwi relocations “should not stand hand-in-hand”.
In this vein, Mr Smith argued that Palmer J erred in concluding every relocation, however minor, was a relocation to which a relocation policy applies. In Mr Smith’s submission, this ignores the requirement in s 101(5) that a relocation policy addresses relocations that involve one venue replacing another, and the express requirement in s 98(c) that the relocation must involve a change in venue.
Furthermore, Mr Smith argued more broadly that:
(a)Palmer J focuses on one word in s 98(c), namely “relocation”, to the exclusion of the other words in the same provision. That is not the correct approach to statutory interpretation.
(b)While Palmer J acknowledged that other words such as “location” and “place” were used in other sections of the Act, his Honour simply considered those terms as being “all inter-related”. That is also not the correct approach to statutory interpretation, which must strive to give different words different meanings.
(c)Palmer J’s approach failed to confront the important legislative history point that a “venue” should not be equated with a “site”, as Parliament chose to use a broader concept in the Act.
Mr Smith also submitted the fact that the 2013 amendments made no changes to the definitions of “class 4 venue” and “place”, or to ss 92–94, is significant. In this regard, Mr Smith noted that “places” are mobile in nature, including vehicles, vessels and aircraft.
Mr Smith likewise observed that “place” as defined in s 4 of the Act includes a court or mall, and that the largest retail mall in New Zealand, Sylvia Park in Mount Wellington, is over 90,000 square metres. According to Mr Smith, a venue moving from one end of the mall to another would, by definition, remain in the same “place” despite moving hundreds of metres. Likewise, he suggests that certificates of title can contain multiple structures or buildings, and that it would be “near ridiculous” to suggest that a venue moving from one building to another on the same piece of land would have to go through a re-licensing and territorial authority process. Mr Smith instead argued that these are all examples of de minimis relocations which are permissible under the “constrained” Waikiwi criteria.
Purposive analysis
Mr Smith submitted that an important purpose of the 2013 amendments was to facilitate the relocation of venues out of low socio-economic areas, and to encourage this by enabling venues to retain their existing gaming machine numbers after relocation.
Mr Smith argued that Palmer J failed to take this purpose into account and erred in concluding the purpose of the 2013 amendments was “to place the locus of decision‑making about relocation of licenced venues with each territorial authority”.[66]
[66]High Court Judgment, above n 1, at [33].
In Mr Smith’s submission, Palmer J’s analysis was flawed as s 101 does not give a territorial authority the power to regulate, under a relocation policy, a minor relocation that does not involve a change in venue. Accordingly, he argued any concerns that continuing to permit Waikiwi relocations undermines local democracy are, more correctly, concerns that the Act needs to be further amended by Parliament. In any event, Mr Smith also noted that the law, more generally, accommodates de minimis exceptions, that is “changes that are so slight and insignificant as not to justify the intervention of the law.”[67]
[67]See, for example, A v Minister of Internal Affairs [2024] NZSC 63 at [74]; New Zealand Co‑operative Dairy Co Ltd v Commerce Commission [1992] 1 NZLR 601 (HC) at 620; and Rea v Wellington City Council [2007] NZRMA 449 (HC) at [10].
Furthermore, Mr Smith submitted the purpose of the Act is not eroded by continuing to permit Waikiwi relocations, “as no venue is going to move from a high to low socio-economic area under the limited Waikiwi Tavern criteria”. He submitted nothing in the legislative history suggests that this was the intention of the 2013 amendments which were intended to enable relocations without losing gaming machines grandparented under s 92.
In Mr Smith’s submission, if Parliament had intended to preclude Waikiwi applications, one would expect to see in s 98(c) express provision that territorial authority consent is required in relation to all forms of venue movements, no matter how minor.
On the contrary, he argued that if the High Court was correct then the 2013 amendments would not only have created a more onerous regime on venues and societies but would have also removed some of their existing rights. He likewise submitted where existing rights (those recognised by the Waikiwi decision) are removed by legislation, that should be done clearly with and explicit reference to the fact it was overturning the Waikiwi decision.
In this regard, Mr Smith relied on the interpretative presumption that Parliament is aware of the common law prior to legislating and is explicit where it intends to override court decisions. In short, he argued that a legal inference must be drawn from the 2013 amendments’ silence on Waikiwi that Parliament did not intend to displace the decision.
Mr Smith also argued that the High Court judgment, rather than supporting local democratic processes, undermines them. He pointed to the strict relocation policies adopted by territorial authorities on the basis that they understood Waikiwi relocations could nonetheless continue. He argued that the High Court Judgment unsettles these local democratic outcomes as reflected in those policies, and premised on the status quo position set out in the Waikiwi decision.
Finally, Mr Smith submitted that there is nothing in the purposes of the Act, as set out in s 3, that suggests a minor relocation of a venue coming within the Waikiwi criteria should trigger a requirement to obtain a territorial authority consent under s 98. He argued that:
(a)no “growth” of gambling is promoted by Waikiwi relocations and the money from these venues will continue to benefit the community;
(b)assuming no venue-specific concerns, Waikiwi relocations are minor and therefore do not affect the purposes in subss 3(c)–(f); and
(c)given the stringency of the Waikiwi criteria and the de minimis nature of Waikiwi relocations, such relocations do not materially affect the purposes in subss 3(b) and (h).
Discussion
Having considered the matters raised by the Gaming Machine Association we nonetheless accept the submissions of the respondents — specifically, that the High Court was correct to conclude the relocation regime implemented by the 2013 amendments displaces any possible room or role for Waikiwi relocations.
It is clear that the Waikiwi decision was a response to a particular set of facts. In the particular circumstances of that case, we consider the Waikiwi decision (where the relocation could have taken place through reorganisation of the underlying certificates of title) provided a true de minimis exception in the context of the Act as it stood at the time. The stated reasons for allowing that relocation, the so-called “Waikiwi criteria” were never, and did not purport to be, a code to enable venue licences to be relocated more generally. Indeed, two of the four criteria will always be able to be met by an applicant,[68] while the third of the criteria, the perceptions of the local community, is entirely subjective and provides little basis for general decision‑making. The only real issue to be determined, on the basis of these criteria, is whether the change in location is “minor”. Overall, the criteria are neither particularly testing nor stringent, and do not provide a sound basis for a general rule of the type contended for by the Gaming Machine Association. This is clear from the factual material provided to us in the course of the appeal that show the application of the criteria has led to a number of significant relocations involving changes in the venue which cannot be justified on a de minimis basis.
[68]That the new venue has the same name as the old, and the ownership and management did not change.
As the Gaming Machine Association has submitted, there will always be room for the application of de minimis principles and we do not rule out that such principles may have some application within the statutory framework of the Act at some point in the future. We do not, however, consider it appropriate to attempt to set any rules for the application of de minimis criteria in the context of the legislative regime for gambling.
When Waikiwi was decided, it was possible to draw a distinction between venue, place and location to reach the outcome arrived at in that case. Specifically, prior to the 2013 amendments it was possible to construe the Act so that a minor change to the location or place would not necessitate an entirely new application for a venue given it would lead to the loss of gaming machines grandparented under s 92.
The effect of the 2013 amendments is to explicitly provide for relocation of venues, which means the distinctions drawn in the Waikiwi decision are no longer tenable. Where, as a result of the 2013 amendments, there is a clear mechanism to address relocation of venues it is impossible to argue that the location of the venue (or the place where gambling is conducted) can be changed independently of those relocation provisions. It is simply no longer possible to argue that a new building somehow remains the same venue when the gambling is being carried on in a different location.
First, we note that s 31(b) of the Act locks venue into place. Specifically, a venue licence is “for the place where the gambling is conducted”.[69] Section 65(2)(a) of the Act has a similar effect. It requires an application for a venue licence to include “a description of the venue and its location”.[70] The effect of these provisions and s 67 is that a venue is a fixed physical location that cannot be changed without changing the venue. The example venue licences we have been provided on appeal confirm that the “venue details” section of the licence includes the name of the venue, the venue operator, the venue manager, the venue description, and finally the venue location, being its address. The venue location or place where gambling is conducted is, without doubt, an integral part of the venue itself. Indeed, as Mr McKillop submitted on behalf of Feed Families Not Pokies, the most natural reading is that venues are places where people go to participate in an activity, with a characteristic called their location. In the scheme of the Act as amended, “venue”, “place” and “location” are each referring to the same physical place.
[69]Emphasis added.
[70]Emphasis added.
Moreover, it is clear, given the timing, that as the relocation regime contained within the 2013 amendments was not drafted with the Waikiwi decision in mind it did not attempt to draw the same distinction between a venue and its location as was drawn in that decision. Instead, we consider it clear from looking at the plain meaning of the words that, for the purpose of relocations since the 2013 amendments, the venue is the place where the gambling is conducted. The relocation regime will therefore apply when it is sought to move a venue to a new place or location where the gambling is now proposed to be conducted. In doing so we accept Mr Conway’s submission on behalf of the Secretary that the use of “relocation” itself draws a clear nexus between location and venue. For example, s 97A(1) provides that moving a venue to a new location will constitute a “new venue”, replacing the “old venue” where it was formerly located.[71]
[71]Gambling Act 2003, s 97A(1).
Put another way, if the gambling is going to take place in a different location or place, no matter how far away or close by, that move can only be permitted through the relocation regime introduced by the 2013 amendments. At that point, s 98(c) of the Act is engaged and the consent of the territorial authority is required. In the event that the territorial authority has not developed a relocation policy, or the relocation policy adopted does not permit any relocation, this means consent will not be able to be obtained and any proposed relocation will not be permitted.
To conclude otherwise would blatantly undermine the explicit requirement for the need to obtain territorial authority consent prior to any relocation of a venue. As Mr Conway submitted, an explicit purpose of the 2013 amendments was to place the question of “if and when” a venue could be relocated into the hands of the relevant territorial authority — thereby facilitating community involvement in decisions about the provision of gambling in a particular area, with reference to the territorial authority’s class 4 venue policy, which requires reference to a far wider range of matters than are included in the Waikiwi criteria.[72]
[72]See Gambling Act 2003, ss 101 and 102.
It would also have enabled operators to continue to source new (and presumably better, from the point of view of the operator) locations within the same socio-economic area where the gambling is currently being carried on — notwithstanding that one of the stated intentions for a relocation regime was that any movement should be away from low socio-economic areas.
It would also lead to other aberrations which are impossible to reconcile with the overall scheme of the Act. As Mr McKillop pointed out, when a relocation is approved in accordance with a relocation policy not only are gaming machines grandparented by s 92 able to be retained at the new venue, but the venue licence for the old venue — the place where the gambling is conducted — is cancelled. Moreover, the old venue is treated as if it had never held such a licence.[73] This is important because otherwise, if the Act treats the old premises subject to a Waikiwi relocation as remaining a venue (or as a premises formerly holding a venue licence), the effect of ss 65(2)(b) and 98(b) of the Act is that for six months following a Waikiwi relocation territorial authority consent for the old premises would not be required, notwithstanding that the venue has moved and the same number of gaming machines are continuing to operate at the new site. It is therefore arguable that ongoing use of Waikiwi relocations would provide a pathway for increasing the total number of gaming machines, an outcome which is clearly inconsistent with the purposes of the Act.
[73]Gambling Act 2003, s 97A.
Alternatively, as Mr McKillop contended, if courts did not adopt the approach explored above at [74] and the old premises were required to obtain a new venue licence, then Waikiwi relocations would operate to the detriment of venue owners and to the benefit of venue operators. Importantly, the former would not have the benefit of obtaining a venue licence without territorial authority consent within the relevant six-month period when attempting to re-lease or sell the old premises. This issue was not considered in the Waikiwi decision, as the venue owner and the venue operator were interrelated entities without conflicts of interest.
Given our conclusion that the Act as amended by the 2013 amendments does not permit Waikiwi relocations, it is not necessary to consider the non-statutory rationales advanced by the Gaming Machine Association in support of the appeal. For completeness, however:
(a)Any suggestion that territorial authorities considered they did not need to establish relocation policies of compliance on Waikiwi relocations, even if correct, cannot change the legal position that Waikiwi relocations were not available once the 2013 amendments had come into effect.
(b)Contrary to Mr Smith’s submissions, this was not a case where rights were extinguished in a manner that required explicit reference to overruling a case. The cases cited by Mr Smith are not in any way comparable given the short period of time between the Waikiwi decision and the enactment of the 2013 amendments. As noted, the Waikiwi decision was never intended to create a code and there had in fact been no reliance placed on the decision as a basis for relocations prior to the 2013 amendments. On the contrary, at the time the 2013 amendments were enacted there had been no developed practice of Waikiwi relocations. More broadly, due to the highly regulated nature of the gambling industry, the rights of certain venues to operate more than nine gaming machines are legacy rights that only exist within the regime created by Parliament to preserve those rights.
Result
The appeal is dismissed.
The appellant is to pay costs on a band A basis plus disbursements to both the first and second respondents. We certify for second counsel.
Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Second Respondent
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