ANZAC Day Commemoration Act 2005

ANZAC Day is defined simply as 25 April in any year (s 3). The Act does not define a specific period of commemoration beyond that date. The object of the Act, stated in s 4, is to ensure recognition and commemoration of the contribution of all men and women who have served Australia in war, armed conflict, or international peacekeeping operations. This object is aspirational; the Act does not create a private right to enforce it.

Public sporting or entertainment event is a term of art defined narrowly in s 18(9). It requires both that tickets for admission (or similar devices) are made available for purchase by a member of the public prior to the event, and that such tickets are required for entry. This definition excludes free community events, charity fun runs, and commemorative services that do not charge admission. It also excludes events where tickets are distributed without purchase, or where there is no pre-purchase requirement. The definition’s narrowness creates a compliance gap: events that are technically public but do not meet the ticket-purchase criterion are not caught.

Two-up is not defined in the Act. Its meaning is imported from the common understanding of the game traditionally associated with Australian soldiers. The Act does not prescribe the rules, the maximum bets, or the number of participants. This leaves regulatory gaps that may be filled by the general law (e.g., if a game departs from the traditional format, it may not be protected).

Veteran means a person who has served in the defence forces of Australia in a war or armed conflict, or in international peace-keeping operations, in which Australia has been involved (s 3). Notably, this definition does not require overseas service, nor does it require a minimum period of service. It also does not include members of the Australian Federal Police or other civilians who may have served in conflict zones. The term is broader than the Commonwealth definition used in some veterans’ entitlements legislation.

Council is the Veterans’ Advisory Council, established by the Minister as a non-statutory advisory body (s 3). The deletion of Part 2 of the Act in 2017 (which had previously established a statutory ANZAC Day Commemoration Council) means the Council now has no statutory basis beyond this definition. Its composition, terms of appointment, and procedures are not prescribed by the Act. This gives the Minister broad discretion in constituting the Council, but also means its advice is not guaranteed to be independent or representative.

RSL means The Returned & Services League of Australia (S.A. Branch) Incorporated (s 3). The RSL has a statutory right to be notified of applications for ministerial authorisations under s 18 and to comment. This gives the RSL a role in the regulatory process, but the Minister is not bound by its comments; the Minister need only “have regard” to them (s 18(4)(b)). The Act does not specify how the Minister must treat the RSL’s comments, nor does it provide for reasons to be given if the Minister overrides them.

Fund is the ANZAC Day Commemoration Fund, a pool of money held by the state. It is not a trust; it is a statutory fund under ministerial control (s 15). The Minister may invest the Fund with the Treasurer’s approval (s 15(3)). The Fund’s application is discretionary: the Minister “may” apply it after consultation with the Council (s 16(1)). Applicants must provide information verified by statutory declaration, but the Act does not specify criteria for approval or time limits for decisions. The Act also does not require the Fund to be used exclusively for veterans; payments to “any organisation” for commemoration services (s 16(1)(f)) and for administration expenses (s 16(1)(g)) could, in theory, absorb a large portion of the Fund.

The Act imposes duties, confers rights, or creates exposure on several classes of persons and organisations.

Event organisers are the primary regulated class under s 18. “Organiser” is not defined, but is likely to be the person or entity that arranges, promotes, or stages the event. Any person who holds a public sporting or entertainment event before noon on ANZAC Day without ministerial authorisation commits an offence (s 18(2)). This affects professional sports clubs, entertainment promoters, racing bodies, and community groups that charge admission. The narrow definition of “public sporting or entertainment event” means that organisers of free events or events without pre-purchased tickets are not caught. However, the burden falls on the organiser to determine whether their event falls within the definition and to seek authorisation if it does.

Applicants for ministerial authorisation under s 18 must provide specified information and verify it by statutory declaration (s 18(5)). This imposes a compliance cost: obtaining a statutory declaration, collating information (such as event details, expected attendance, security arrangements), and potentially engaging legal or administrative assistance. The Minister may impose conditions on the authorisation (s 18(6)), which may impose further obligations such as noise limits, start times, or security requirements.

The RSL has a statutory role as a consultee. It must be given copies of applications and supporting affidavits (s 18(4)(a)). It may provide comments, but the Act does not oblige the RSL to do so, nor does it provide resources for the RSL to assess applications. This creates a potential cost for the RSL if it chooses to engage, and a risk that its comments may be ignored.

Veterans and their families are the intended beneficiaries of the Fund. The Fund may be applied for home maintenance, care, welfare, and commemoration services (s 16(1)). However, the Act does not create a legal entitlement to payments. A veteran or dependent must apply, provide verified information, and await ministerial discretion. The Council’s recommendation is non-binding. This means the Fund operates as a grants program rather than an entitlement scheme. Aged veterans in particular may face procedural barriers to access, such as the need to provide a statutory declaration.

Taxpayers bear the cost of the Fund through parliamentary appropriations (s 15(2)(a)) and through the administration expenses that may be paid from the Fund. The Act does not cap administration expenses, so there is a risk of leakage.

Participants in two-up on ANZAC Day gain immunity from prosecution under the Lottery and Gaming Act 1936, but only if the game is played on RSL or Defence Force premises and no payment is made for the right to participate (s 19(1)-(2)). This affects gamblers, the RSL as venue operator, and police who would otherwise enforce gambling laws.

Defence Forces personnel and RSL branch officials are affected by the two-up provisions but receive no specific guidance on how to ensure compliance. For example, if an RSL branch charges a door fee to enter the premises on ANZAC Day, that could be seen as a “payment … for the right to participate” and invalidate the immunity (s 19(2)(a)). The Act does not address this.

Duty not to hold an unauthorised public sporting or entertainment event before noon on ANZAC Day (s 18(1)-(2)). This is a strict liability offence: the section does not require proof of intention to contravene. The only defence is that the event was authorised in writing by the Minister. The duty applies despite any other Act or law, so a local council permit for the event does not override the ban.

Right to apply for ministerial authorisation (s 18(1), (3)). Any person may apply. The Minister must grant authorisation if satisfied it is in the public interest. The Act does not define “public interest”, giving the Minister wide discretion. The Minister must follow the procedural steps in s 18(4): forwarding the application to the RSL and considering its comments. However, the Minister is not required to hold a hearing, give reasons, or publish decisions. This creates a risk of arbitrary or inconsistent outcomes.

Duty of applicants to provide information and verify by statutory declaration (s 18(5), s 16(3) for Fund applications). False statements attract the penalty under s 20. The statutory declaration requirement adds a cost and may deter frivolous applications, but also imposes a burden on legitimate applicants.

Right of the RSL to comment on applications (s 18(4)(b)). The RSL must be given a copy of the application and supporting affidavit. It may provide comments by a date specified by the Minister. The Minister must have regard to those comments, but is not bound by them. The RSL has no right to a hearing or to appeal a decision.

Right to play two-up on ANZAC Day without committing an offence (s 19(1)). This right is limited: it applies only on RSL or Defence Force premises, and only if no payment is made for the right to participate and no commission or fee is taken on bets (s 19(2)). The Act does not limit the number of participants, the stakes, or the duration of play. However, betting by or with persons under 18 remains illegal (s 19(3)). The Act does not specify whether two-up can be played on ANZAC Day in other locations; by implication, it remains unlawful under the Lottery and Gaming Act 1936.

Duty not to make false or misleading statements (s 20). This applies to any information provided under the Act, including Fund applications and authorisation applications. The penalty is $5,000, which is significantly higher than the offence for holding an unauthorised event ($1,250). This suggests the legislature treats false statements more seriously than the substantive breach of the ban.

No private right of action is created by the Act. The duties are enforced only by criminal prosecution. A person aggrieved by a ministerial decision (e.g., a competitor who wants an event banned) has no statutory cause of action and would need to rely on judicial review principles, which would be limited by the broad discretion conferred.

The Act creates two principal offences. First, holding a public sporting or entertainment event in contravention of s 18(1) carries a maximum penalty of $1,250 and an expiation fee of $160 (s 18(2)). The same penalty applies to breach of a condition of an authorisation (s 18(7)). Second, making a false or misleading statement in information provided under the Act carries a maximum penalty of $5,000 (s 20). The Act does not specify who enforces these offences. Enforcement is likely to be by South Australia Police or by local council officers, but the Act does not confer specific powers of entry, inspection, or seizure. The expiation fee mechanism (s 18(2) and (7)) suggests that the offences are minor and can be dealt with by on-the-spot fines. However, the $5,000 penalty under s 20 is not expiable; it would require prosecution.

The Act does not impose penalties on the RSL or on Defence Forces for permitting two-up that breaches the conditions of s 19. If two-up is played in a way that does not satisfy s 19(2) (e.g., a fee for participation), the immunity is lost, and the general law applies. That would make the game unlawful under the Lottery and Gaming Act 1936, and participants and organisers may face penalties under that Act (which are not specified in this Act). The Act does not create a separate offence for breaching s 19(2); rather, it sets a condition for the immunity.

The Act does not provide for enforcement costs or for confiscation of proceeds. There is no provision for injunctions or stop orders. This means that if an unauthorised event proceeds, the only remedy is a post-event prosecution. The Minister has no power to order the event to stop or to seize tickets. This weakens the deterrent effect, especially for events that are lucrative and time-sensitive.

The false or misleading statement offence under s 20 is broad. It applies to both Fund applications and authorisation applications. The element of “material particular” means the falsehood must be capable of affecting the decision. The Act does not require that the statement be made knowingly or recklessly; the penalty is not expressed as requiring mens rea, but s 20 does not explicitly say “knowingly”. Courts would likely require some degree of fault, but the statutory wording is not clear.

The Act contains two express override provisions. Section 18(1) operates “despite any other Act or law”. This means it takes precedence over any other South Australian statute, regulation, by-law, or common law rule that would otherwise permit a public sporting or entertainment event before noon on ANZAC Day. For example, a local council that has granted a permit for a charity fun run that meets the s 18(9) definition cannot rely on that permit to avoid the ban. Similarly, a liquor licence condition that allows an event to start at 10 a.m. would be overridden. The override does not extend to Commonwealth law; the Act is a state law and cannot override federal legislation. However, there is no evident conflict with any Commonwealth law.

Section 19(1) operates “despite the Lottery and Gaming Act 1936”. This creates a limited exception to the general prohibition on two-up in South Australia. Two-up is normally an unlawful game under the Lottery and Gaming Act 1936, and premises where it is played may be deemed common gaming-houses. Section 19(1) carves out ANZAC Day, RSL and Defence Force premises, and the specific conditions. Outside those conditions, the Lottery and Gaming Act 1936 continues to apply. The interaction with the Lottery and Gaming Act 1936 is also affected by the definition of “bet” in s 19(4), which adopts the meaning from that Act. This means that the two-up exception is tied to the definition of betting in the primary gambling legislation.

The Act also interlinks with the Family Relationships Act 1975 through the definition of “domestic partner”. The Act uses the definition from the Family Relationships Act 1975, even if the partner is not declared as such under that Act (s 3). This means that for Fund purposes, a person may need to establish they are a domestic partner under the Family Relationships Act 1975 criteria, which is a separate legal question.

The Act’s deletion of Part 2 by the ANZAC Day Commemoration (Veterans’ Advisory Council) Amendment Act 2017 removed the previous statutory ANZAC Day Commemoration Council. The Act now references only a “Council” defined as the Veterans’ Advisory Council, a non-statutory body. This change means the Act no longer establishes a statutory committee with defined membership and functions. The Minister’s consultation duty under s 16(1) is now with a body that exists at the Minister’s pleasure, which may affect the independence of the Fund’s oversight.

The Act does not interact with the Criminal Law Consolidation Act 1935 or the Summary Offences Act 1953 in any express way. However, the ban on public events before noon could intersect with public assembly laws if an event is also a public assembly. The Act does not resolve such conflicts.

The ANZAC Day Commemoration Act 2005 was assented to on 21 April 2005 but did not commence until 15 March 2007, a delay of nearly two years. This may have been to allow for administrative preparation. The Act has been amended five times.

The Statutes Amendment (Domestic Partners) Act 2006 (No 43 of 2006) inserted the definitions of “domestic partner” and “spouse” into s 3, and amended s 16(1) to include domestic partners in the list of beneficiaries for Fund payments. This amendment commenced on 1 June 2007, after the principal Act’s commencement.

The Statutes Amendment (Directors’ Liability) Act 2011 (No 36 of 2011) deleted s 18(8) from the principal Act. The content of deleted subsection s 18(8) is not preserved in the source text. It appears to have been a provision relating to liability of directors or officers of bodies corporate, and its removal (effective 1 January 2012) may have narrowed the scope of personal liability for contraventions of s 18.

The Statutes Amendment (Boards and Committees,Abolition and Reform) Act 2015 (No 8 of 2015) made numerous amendments to Part 2 (since deleted) and to s 18. For s 18, it amended subsections (1), (3), (4), (5), and (6), but the nature of those amendments is not described in the source text beyond the fact of amendment. These changes likely replaced references to the former ANZAC Day Commemoration Council with references to the RSL, as part of the broader reform of boards and committees.

The ANZAC Day Commemoration (Veterans’ Advisory Council) Amendment Act 2017 (No 17 of 2017) was a significant amendment. It deleted Part 2 in its entirety (repealing the ANZAC Day Commemoration Council) and replaced the definition of “Council” in s 3 with a reference to the Veterans’ Advisory Council. It also amended s 15(2) and (3), s 16(1), substituted s 16(2), amended s 16(3), and deleted s 17. These amendments shifted the Fund’s oversight from a statutory council to a non-statutory advisory body, and likely removed provisions relating to the Council’s membership and functions. The amendments commenced on 1 July 2017.

The Act also underwent minor changes under the Legislation Revision and Publication Act 2002 (a general revision statute), which omitted original s 2 and Schedule 1, and deemed Schedule 2 not to have been enacted.

Understanding the amendment history is important because the Act’s current structure is leaner than the original. Practitioners should be aware that the Fund’s administration is now more ministerial, with less formal oversight. The deletion of Part 2 also removed provisions that may have prescribed the Council’s composition, ensuring representation from veterans’ organisations. That safeguard is gone.

The source text does not contain any references to litigation under this Act. The Act’s narrow scope and limited sanctions make it unlikely to generate frequent litigation. However, several potential legal issues could arise. The broad ministerial discretion to grant authorisations under s 18(3) on “public interest” grounds could be challenged by judicial review. A decision to refuse an authorisation, or to grant one against the RSL’s objection, might be susceptible to review on grounds of unreasonableness, failure to consider a relevant matter, or procedural error. However, the Act does not require reasons, which limits the prospects of review.

The definition of “public sporting or entertainment event” in s 18(9) could be the subject of interpretive disputes. For example, does a charity gala dinner with a ticket price qualify? Does a community sports event where tickets are sold at the gate but no pre-purchase is required fall within the definition? The Act does not clarify the temporal element: must the ticket be made available for purchase “prior to the holding of the event” by any means? If tickets are available only on the day but before the event starts, is that prior? These ambiguities could lead to prosecutions being defended on technical grounds.

The two-up exception in s 19 has not been litigated publicly, but the conditions in s 19(2) are ripe for dispute. If an RSL branch charges a cover charge on ANZAC Day, is that a payment for the right to participate in two-up, or for general access to the premises? The Act does not apportion the payment. Similarly, if the RSL takes a “donation” from players, that could be construed as a commission on bets.

The false or misleading statement offence under s 20 has not been reported. Given the $5,000 penalty, prosecutions are possible but are likely to be rare and would require proof of materiality.

Overall, the Act has generated little reported case law. This may reflect its limited enforcement, or it may mean that the regulatory scheme is largely self-enforcing because event organisers comply voluntarily. The lack of litigation does not mean the Act is well-drafted; rather, it means the costs of challenging enforcement are likely higher than the benefits.

The narrow definition of “public sporting or entertainment event” in s 18(9) is a double-edged sword. It restricts the ban’s scope, but it also creates a trap for the unwary. An event that is broadcast on television, attracts a large crowd, and has an entry fee collected on the day without pre-purchase is not caught. Conversely, an event where tickets are pre-sold but entry is free (e.g., a free community concert requiring a pre-registered ticket) may not fall within the definition because the ticket is not “made available for purchase”. The critical element is “purchase by a member of the public prior to the holding of the event”. If a ticket is given away, even if required for entry, the event is not caught. This means that organisations that use free ticketing platforms for crowd control may inadvertently circumvent the ban.

The Minister’s discretion under s 18(3) is broad but opaque. “Public interest” is not defined, and the Minister is not required to publish reasons or criteria. An applicant may invest time and money in preparing an application only to receive a refusal without explanation. The Act does not provide for a review or appeal of a refusal. This creates uncertainty and a risk of arbitrary decision-making. The requirement to forward the application to the RSL and consider its comments (s 18(4)) adds a procedural step but does not guarantee fairness.

The two-up conditions in s 19(2) are easy to breach unintentionally. If an RSL branch charges a small entry fee on ANZAC Day (even if it is for general admission and not specifically for playing two-up), a court could interpret that as a “payment or other benefit … for the right to participate in the game” (s 19(2)(a)). Similarly, if the RSL collects a percentage of winnings for charity, that could be a commission on winnings (s 19(2)(b)). The Act does not provide a safe harbour for reasonable venue charges. Branches should ensure that any entry fee is clearly for non-gaming purposes and that no fee or benefit is contingent on participation in two-up.

The Fund’s administration expenses are not capped (s 16(1)(g)). The Fund can be used to pay its own administration, meaning that the more the Fund spends on compliance and processing, the less is available for veterans. There is no requirement to publish annual accounts or to disclose the ratio of administration costs to benefits distributed. Taxpayers and potential beneficiaries have no way to monitor efficiency.

The application process for Fund payments (s 16(3)) and for authorisations (s 18(5)) requires information to be verified by statutory declaration. Any mistake, even a minor one, could lead to a prosecution under s 20 for a false or misleading statement. The penalty is $5,000. This creates a strong incentive to be accurate, but also a risk for applicants who may not understand the legal consequences of a statutory declaration.

The deletion of Part 2 means there is no longer a statutory council to oversee the Fund. The “Council” is now the Veterans’ Advisory Council, which is non-statutory and can be abolished or reconstituted by the Minister at any time. This centralises power in the Minister and reduces accountability. The Fund’s application decisions are now subject only to the Minister’s consultation with a body that has no statutory guarantee of independence or expertise.

For event organisers considering a public sporting or entertainment event on ANZAC Day before noon, the first step is to determine whether the event falls within the definition in s 18(9). If tickets are pre-sold to the public and required for entry, the ban applies. If the event is free, or if tickets are sold only at the gate, or if entry is by donation, the ban does not apply. In borderline cases, it is prudent to assume the ban applies and seek authorisation.

To obtain a ministerial authorisation, the organiser should submit a written application to the Minister (portfolio likely Veterans’ Affairs in South Australia) providing all specified information. The Act does not prescribe the form, but the application should include the nature of the event, date, time, location, expected attendance, ticketing arrangements, safety and traffic management plans, and any other information the Minister may require. The applicant must verify the information by statutory declaration (s 18(5)). The application must be accompanied by a supporting affidavit (s 18(4)(a)). The Minister will forward a copy to the RSL and set a date for receipt of comments. The organiser should anticipate that the RSL may object. To strengthen the application, the organiser may engage with the RSL beforehand to address any concerns. The Minister may impose conditions (s 18(6)), such as a requirement to start after a certain time, to limit noise, or to include a commemorative element. The organiser must comply with any conditions; breach is an offence (s 18(7)). There is no statutory time frame for a decision, so early application is wise.

For RSL branches and Defence Force bases that wish to host two-up on ANZAC Day, compliance requires strict adherence to s 19. No payment or benefit may be given or sought for the right to participate, other than the placing of bets themselves (s 19(2)(a)). This means no entry fee that is linked to playing two-up. A general door fee for the premises may be acceptable if it applies to all patrons, regardless of whether they play two-up. However, to reduce risk, the venue should avoid any charge that could be construed as a participation fee. No commission, percentage, or fee may be taken on bets or winnings (s 19(2)(b)). The venue should not take a cut of the action. Bets may only be placed between players and the “spinner” or bookmaker; the venue should not charge a service fee. If the venue wishes to collect money for charity, it should be through a separate donation box, not through a levy on bets. The venue must also ensure that no person under 18 years places a bet (s 19(3)). The Act does not specify whether the venue must have a liquor licence or other permits; those obligations under other laws remain.

For applicants to the ANZAC Day Commemoration Fund, the process is similar. Applicants should contact the Minister and provide the required information. The Minister will refer the application to the Veterans’ Advisory Council. The Council will make a recommendation. The Minister is not bound by it. The applicant should prepare a detailed submission that demonstrates the purpose meets one of the seven enumerated categories in s 16(1). The applicant must verify the information by statutory declaration (s 16(3)). False statements attract a $5,000 penalty. There is no right to a hearing or reasons if the application is refused. To improve chances, the applicant should ensure the application is complete, accurate, and clearly linked to the statutory purposes. It may help to obtain letters of support from the RSL or other veteran organisations.

In all cases, anyone providing information under the Act must take care not to make any false or misleading statement, whether by inclusion or omission (s 20). Given the serious penalty and the use of statutory declarations, it is advisable to seek legal assistance if there is any doubt about the accuracy of the information. Records should be kept of all communications with the Minister and the Council.