(c) the number of approved amusement devices kept on those premises.
17 Gaming machines may be either poker machines or amusement devices; it follows from s 56(5) that in order to keep a poker machine, a club must have both an authorisation under s 56(2) and a corresponding "entitlement" - either a poker machine entitlement [s 56(5)(a)], or a hardship gaming machine approval under s 29 in respect of that machine [s 56(5)(b)].
18 These "entitlements" are addressed by Pt 3 of the Act, which contains four divisions. The first is preliminary, and the fourth contains miscellaneous provisions. The two substantive divisions are Div 2, entitled "Tradeable Poker Machine Entitlements Scheme", and Div 3, entitled "Hardship Gaming Machines". The preliminary division, Div 1, contains one section only, s 14, which (consistently with s 56) provides that the allocation of poker machine entitlements and the approval to keep hardship gaming machines under Pt 3 do not affect the requirement under Pt 5 for the Board's authorisation to keep approved gaming machines in a hotel or club, and that the Board cannot allocate a poker machine entitlement or approve the keeping of a hardship gaming machines if the allocation or approval would exceed the total number of approved gaming machines authorised under Pt 5 to be kept in the hotel or club, reinforcing that both authorisation under s 56, and a corresponding entitlement or approval, is required for a poker machine to be kept on the premises.
19 Part 3 recognises a dichotomy between poker machine entitlements (dealt with in Div 2) and hardship gaming machine approvals (dealt with in Div 3). The dichotomy between the two concepts is introduced by s 14. Accordingly, the effect of s 56 and Pt 3 is that a poker machine can be the subject of an authorisation with s 56 only if it corresponds with either a poker machine entitlement or a hardship gaming machine approval, which are alternative "entitlements". A poker machine entitlement under Div 2 is tradeable, a hardship gaming machine under Div 3 is not; indeed, a hardship gaming machine approval must be surrendered as a precondition to the sale of any poker machine entitlement [s 30].
20 However, a hardship gaming machine approval may be converted to a poker machine entitlement, but only after a period of three years has elapsed from the date of the hardship gaming machine approval [s 31]. Once it is converted, the relevant machine is counted as corresponding to a poker machine entitlement and no longer as a hardship gaming machine. A machine cannot be both the subject of a poker machine entitlement and also a hardship gaming machine; otherwise the scheme of s 56, providing for total authorisations limited to the total number of poker machine entitlements and hardship gaming machines, would be circumvented, as converted machines would be counted twice.
21 Recognition that the concepts of poker machine entitlements and hardship gaming machine approvals are mutually exclusive is important, because it enables the search for the legislative intention as to how pre-existing s 88AF hardship machines were to be dealt with under the 2001 legislation to be focussed on whether s 88AF hardship machines were to be treated as the subject of poker machine entitlements under Pt 3 Div 2, or as hardship gaming machines under Pt 3 Div 3.
Textual Indicia
22 The text of the Act, to which I turn next in endeavouring to resolve the conflict between s 15 and s 18, contains a number of indications, which do not consistently point in the same direction.
23 Commencing with s 15 - and, in particular, with s 15(5)(b) - it is important that the only way in which there could be an authorised increase in the number of poker machines authorised to be kept on club premises after 28 March 2000 and before the commencement of s 15 on 2 April 2002 was pursuant to s 88AF, and all s 88AF hardship machines represented an authorised increase during that period. As Mr Higgs SC, who appeared with Mr Faulkner for the clubs, submits, s 15(5)(b) would have no work to do if it did not catch s 88AF hardship machines. Indeed, I think one can go further than submitting that it would have no work to do in that event; the wording of s 15(5)(b), in its reference to "any increase in that number ... that has been authorised by the Board" is so similar to the wording of s 88AF(1) - "an increase in the number of approved gaming devices that a registered club is authorised to keep under this Act" - that it is difficult to suppose that it was not s 88AF that was precisely in the mind of the draftsperson of s 15(5)(b). Read on its own, s15(5)(b) seems necessarily to contemplate and intentionally to capture s 88AF hardship machines. Indeed, the Board appears to have thought that it did so; in the "Arrangements pursuant to section 15" approved by the Director General on 5 June 2002, the Director General observed that one of the principles which emerged from the Act was "1.2. Where a club has been granted an approval to increase the gaming device restriction number by way of hardship application pursuant to s 88AF of the Registered Clubs Act 1976 then the frozen number should be increased by the approved number". Of course, arrangements subsidiary to the Act, made by authority of the Act by the Director General, are not a legitimate aid to construction of the Act, but it is nonetheless of interest that the Board itself proceeded on the basis of the construction which, at first sight, s 15(5)(b) appears to support.
24 It was suggested that s 15(5)(b) might have had work to do in respect of poker machines other than s 88AF hardship machines, if the freeze had been dissolved/ by proclamation before the commencement of the 2001 Act. While, as a matter of theoretical possibility, that may be so, it does not, in my mind, attract much weight, because the 2001 Act plainly took the freeze as a starting point - as appears, for example, from the reference to "frozen number" in s 15 itself. It is improbable that there was any anticipation that there might be an authorised increase, other than pursuant to s 88AF, after the commencement of the freeze.
25 It was also suggested that s 15(5)(b) had work to do as, in effect, identifying a relevant consideration to be taken into account by the Board in determination of the "frozen number". However, in the context of s 15, it does not appear that there could be any way of "taking into account" any such increase as is referred to in s 15(5)(b), other than by counting the number of that increase and including it in the total "frozen number". Accordingly, this leaves s 15(5)(b) no work to do, if s 18(3) is treated as excluding s 88AF hardship machines from s 15.
26 It is also notable that s 15 is not expressed to be "subject to this Act", or otherwise to be subject to any other provisions of the Act - a formula which was not unfamiliar to the draftsperson, as appears, for example, from ss 20(3) and 26(3).
27 For the Attorney General, Mr Leeming SC, who appeared with Ms Mahony, argued that the words "is to be allocated" in s 15(1) were relatively weak when contrasted, for example, with the mandatory word "cannot" in s 18. I am unimpressed by this argument. The words "is to" are mandatory words, conventionally used as words of command. This view is reinforced by s 15(6), which, in providing that despite subsection (1), the Board "is not required" to allocate an entitlement in certain circumstances, implicitly confirms that the words "is to" impose a requirement or obligation to allocate an entitlement in other circumstances.
28 It was also argued for the Attorney General that the introduction, by later amendment, of subsections (6) and (7), revealed that it was not envisaged that there would be an obligation to allocate poker machine entitlements in every case that fell within subsection (5). However, the effect of subsection (6) is simply to clarify that if an authorisation to keep a poker machine had been granted in circumstances where the relevant club was not lawfully entitled to keep such a machine, then the introduction of the tradeable entitlement scheme was not intended to create a lawful entitlement to keep that machine. I do not think that this advances the Attorney's argument in respect of s 15.
29 Accordingly, looked at on its own, there are significant and strong indications in s 15 that it was intended to capture s 88AF hardship machines, which the arguments advanced to the contrary do not satisfactorily explain.
30 I can pass over ss 15AA and 15A, which were introduced by subsequent amendment. Section 16 provides for the further allocation of poker machine entitlements, after the initial allocation under s 15:
16 Further allocation of poker machine entitlements and certificate of entitlements