THE HONOURABLE NICHOLAS DAVID GRIFFITHS MLC, the Minister of the Crown for the time being charged with the administration of the Control Act acting for and on behalf of the State of Western Australia and its instrumentalities from time to time (“the State”)
BURSWOOD NOMINEES LTD (ACN 078 250 307) C/‑ Burswood International Resort Casino, Great Eastern Highway, Burswood in the State of Western Australia as trustee of the Burswood Property Trust (“the Trustee”)
BURSWOOD RESORT (MANAGEMENT) LIMITED (ACN 009 396 945) C/‑ Burswood International Resort Casino, Great Eastern Highway, Burswood in the State of Western Australia as manager of the Burswood Property Trust (“the Manager”) of the third part.
A. The State, the Trustee (by virtue of the West Australian Trustees Limited (Merger) Act 1989) and the Manager (by virtue of a deed of retirement and appointment of manager made on 13 August 1990 and a deed of assumption and covenant made on 13 November 1991) are parties to an agreement dated 20 February 1985 ratified by and scheduled to the Casino (Burswood Island) Agreement Act 1985 as amended by:
(f) the Sixth Supplementary Agreement made on 22 June 1996; and
(g) the Seventh Supplementary Agreement made on 9 June 1997,
which agreement as so amended is referred to in this agreement as “the State Agreement”.
B. The parties have agreed to further amend the State Agreement for the purpose of more efficiently or satisfactorily implementing or facilitating certain of its objectives.
Definitions and interpretation
Words and expressions defined in the State Agreement when used in this Agreement have, unless the context otherwise requires, the same meanings as in the State Agreement and the provisions of clause 2 of the State Agreement as to interpretation apply to this Agreement.
Variation and operation
(a) The State shall introduce and sponsor a Bill in the Parliament of Western Australia to ratify this Agreement and endeavour to secure its passage as an Act.
(b) The provisions of this Agreement other than this clause and clause 1 shall not come into operation until the Bill referred to in sub‑clause (a) has been passed by the Parliament of Western Australia and comes into operation as an Act.
(c) On the said Bill commencing to operate as an Act, this Agreement shall operate and take effect according to its terms notwithstanding the provisions of any Act or law of Western Australia.
Clause 2 amended
Clause 2 of the State Agreement is amended:
(a) by deleting the definition of “Casino Gross Revenue”;
(b) by inserting after the definition of “Casino Gaming Licence” the following definitions‑
“ “Casino Tax”means each of the Electronic Gaming Machine Tax, the Table Game Tax or the International Commission Business Tax, as the case may be, and “Casino Taxes”means two or all of them;
“Casino Tax Activity” means gaming by way of Electronic Gaming Machine, Table Game or International Commission Business;
“Casino Tax Rate” means the relevant per centum rate used for determining a Casino Tax as specified in Schedule C or as determined under clause 23(6) from time to time;
“Casino Taxable Revenue” where used in relation to a particular Casino Tax Activity means all sums, including cheques and other negotiable instruments whether collected or not, received in any month from the conduct of the Casino Tax Activity, less the total of all sums paid out as winnings during that month in respect of the Casino Tax Activity. For the purposes of this definition:
(a) any sum received for the issue of a chip for the relevant Casino Tax Activity is a sum received from the conduct of the Casino Tax Activity and any sum paid out to redeem a chip is a sum paid out as winnings;
(b) in a case in which the Commission consents to the extension of credit, the sum value of chips issued in any month on credit, whether by credit card transaction or otherwise howsoever, shall be deemed to be sums actually received in that month from the conduct of the relevant Casino Tax Activity; and
(c) the Casino Taxable Revenue for the relevant Casino Tax Activity may be a negative amount;”;
(c) by inserting after the definition of “Drawings” the following definitions‑
“ “Electronic Gaming Machine” means an Authorized Game played by means of any electrical, electronic or mechanical contrivance or machine that is not a Table Game;
“Electronic Gaming Machine Tax” means the amount, which may be a negative amount, determined as follows:
EGMT = (P x EGMR)
EGMT= Electronic Gaming Machine Tax for the relevant month
P= the per centum specified for Electronic Gaming Machine Tax in Item 1 of Schedule C for the relevant period
EGMR= the Casino Taxable Revenue for Electronic Gaming Machines for the relevant month
relevant month= the month for which the Electronic Gaming Machine Tax is due and payable under clause 23(1)(a);”;
(d) by inserting after the definition of “Genting WA” the following definitions‑
“ “International Commission Business” includes any of the following activity:
(a) Junket Activity;
(b) Premium Player Activity; and
(c) Privileged Player Activity;
“International Commission Business Tax” means the amount, which may be a negative amount, determined as follows:
ICBT = P x ICBR
ICBT= International Commission Business Tax for the relevant month
P= the per centum specified for International Commission Business Tax in Item 1 of Schedule C for the relevant period
ICBR= the Casino Taxable Revenue for International Commission Business for the relevant month
relevant month= the month for which the International Commission Business Tax is due and payable under clause 23(1)(a);
“Junket Activity” means gaming activity limited to Table Games arising from a Junket, and “Junket” has the same meaning as that term is defined under section 25A of the Control Act;”;
(e) by deleting the definition of “Mandatory Articles” and inserting the following definition‑
“ “Mandatory Articles” means:
(a) the provisions to be included in the constitution of an Approved Company in accordance with the requirements of clauses 17A(2)(b) and 17A(2)(c); or
(b) any other provisions of an Approved Company’s constitution as agreed by the Minister, the Manager and the Trustee from time to time under an agreement which has been ratified by an Act;”;
(f) by inserting after the definition of “Person” the following definitions‑
“ “Premium Player Activity” means gaming activity limited to Table Games arising from a patron who is a non resident of Australia with whom the casino licensee has an arrangement to pay the patron a commission based on the patron’s turnover of play in the casino or otherwise calculated by reference to such play. For the purpose of this definition “non resident of Australia” means the holder of a foreign passport whose principal place of residence is outside Australia;
“Privileged Player Activity” means gaming activity limited to Table Games arising from a patron who is a non resident of Australia with whom the casino licensee has an arrangement for the provision of transport, accommodation, food, drink or entertainment, based on the patron’s turnover of play in the casino or otherwise calculated by reference to such play. For the purpose of this definition “non resident of Australia” means the holder of a foreign passport whose principal place of residence is outside Australia;”;
(g) by inserting after the definition of “ “State” or “Western Australia” ” the following definitions‑
“ “Table Game” means:
(a) a game identified in Schedule D;
(b) the Authorised Game Keno; and
(c) any new game which is authorised under section 22 of the Control Act and which the Commission by notice to the Trustee specifies to be a Table Game;
“Table Game Tax” means the amount, which may be a negative amount, determined as follows‑
TGT = P x (TGR – ICBR)
TGT= Table Game Tax for the relevant month
P= the per centum specified for Table Game Tax in Item 1 of Schedule C for the relevant period
TGR=the Casino Taxable Revenue for Table Games for the relevant month
ICBR= the Casino Taxable Revenue for International Commission Business for the relevant month
relevant month= the month for which the Table Game Tax is due and payable under clause 23(1)(a);”; and
(h) under the heading “Interpretation”‑
(i) by deleting the full‑stop from paragraph (vi) and substituting “; and”; and
(ii) by inserting a new paragraph (vii)‑
*“a month is to a calendar month.”*
Clause 17 amended
Clause 17(1) of the State Agreement is amended by deleting “Memorandum and Articles of Association” from clause 17(1)(e), clause 17(1)(ea) and their headings and in each case, substituting “constitution”.
Clause 17(1) of the State Agreement is amended:
(a) by inserting after clause 17(1)(eb) the following new clauses‑
“(ec) if a Person becomes the holder of a relevant interest in more than 10% of the voting shares of an Approved Company, the Approved Company must notify the Commission in writing within 30 days after the day on which the Approved Company becomes aware that the Person has become the holder of a relevant interest in more than 10% of the voting shares;
(ed) if an Approved Company becomes aware that a contravention of the Mandatory Articles contained in its constitution has occurred, then unless agreed by the Commission the Approved Company must promptly take action, to the fullest extent permitted by its constitution, to rectify the contravention;”;
(b) by inserting after clause 17(2) the following new clause‑
“(3) For the purposes of sub‑clause (1)(ea) the Minister approves the proposed amendments to the constitution of Burswood Limited, an Approved Company, in the form set out in Schedule E, provided that such amendments take effect not earlier than 30 September 2003.”; and
(c) by inserting after clause 17(3) the following new clause‑
“(4) For the purposes of sub‑clause (1)(ga) in its application to Burswood Limited as an Approved Company, the Minister, the Manager and the Trustee agree that with effect from the date of amendment of the constitution of Burswood Limited in accordance with Schedule E , the provisions of Article 3 as set out in Schedule E shall be the Mandatory Articles in respect of Burswood Limited.”
Clause 17A amended
Clause 17A of the State Agreement is amended by deleting “articles of association” from each of clauses 17A(2)(b) and 17A(2)(c) and in each case, substituting “constitution”.
Clause 17A(2)(b) of the State Agreement is amended by inserting the words “at the time of approval” after the word “must”.
Clause 23 amended
Clause 23 of the State Agreement is amended by:
(a) deleting subclause (1)(a) and substituting the following clause‑
“(a) to the Treasurer of the State in respect of each and every month the aggregate of all of the Casino Taxes, which shall:
(i) accrue daily at the rates from time to time applicable pursuant to Item 1 of Schedule C, or a notice issued under clause 23(6); and
(ii) be payable in the manner and at the time specified in Item 2 of Schedule C;”;
(b) deleting the words “the aggregate of Casino Gross Revenue” from subclause (1)(c) and substituting the words “the aggregate Casino Taxable Revenues for all Casino Tax Activities”; and
(c) deleting subclauses (6), (7) and (8) and substituting the following clauses–
“(6) The Minister may, with prospective effect from an Anniversary Date:
(a) at any time after 24 December 2009, review the Casino Tax Rates for International Commission Business Tax and Table Game Tax or either of them; and
(b) at any time after 24 December 2004, review the Casino Tax Rate for the Electronic Gaming Machine Tax,
by not less than 4 weeks’ notice to the Trustee specifying an alternative Casino Tax Rate or alternative Casino Tax Rates, as the case may be, and the Anniversary Date on and from which such alternative rate of the Casino Tax Rate is, or Casino Tax Rates are, payable.
(6A) If the Minister issues a notice under clause 23(6) (“Review Notice”), then subject to clause 23(7)(c) and clause 23(8), as the case may be, the Casino Tax Rate for the relevant Casino Tax specified in the Review Notice will be the rate specified in the Review Notice and will apply on and from the Anniversary Date specified in the Review Notice.
(6B) Nothing in clauses 23(6) or (6A) prevents the Minister from issuing a Review Notice in respect of more than one Casino Tax and those clauses apply mutatis mutandis if a Review Notice specifies more than one Casino Tax.
(7) If a Review Notice has the effect of increasing a Casino Tax Rate, it –
(a) shall not be given more than once in respect of any one Anniversary Date;
(b) shall not on any one occasion increase the relevant Casino Tax Rate by more than one per centum (1%) per annum; and
(c) shall not be given without the consent of the Trustee if the effect of the Review Notice would be to cause the relevant Casino Tax Rate to exceed twenty per centum (20%) per annum.
(8) If a dispute shall arise between the Minister and the Trustee as to whether the effect of a Review Notice under clause 6A would or is likely to have an adverse impact on the viability of the Burswood Casino such dispute shall be referred to arbitration in accordance with clause 33 provided that pending the determination upon such reference Casino Tax at such higher rate shall be payable by the Trustee provided further that if the dispute is decided in favour of the Trustee the State shall as soon as practicable cause to be repaid to the Trustee any such additional tax.”
Clause 36 amended
Clause 36(b) of the State Agreement is amended by:
(a) deleting the notice details for the Trustee and substituting the following‑
“Burswood Nominees Ltd
C/- Burswood International Resort Casino
Great Eastern Highway
Burswood WA 6100
Facsimile: 08 9470 1789
Attention: Managing Director”;
(b) deleting the notice details for the Manager and substituting the following‑
“Burswood Resort (Management) Limited
C/- Burswood International Resort Casino
Great Eastern Highway
Burswood WA 6100
Facsimile: 08 9470 1789
Attention: Managing Director”;
(c) deleting the notice details for the Minister and substituting the following‑
“10th Floor
London House
216 St Georges Terrace
Perth WA 6000
Facsimile: 08 9222 8951”; and
(d) deleting the notice details for the Commission and substituting the following‑
“Gaming Commission of Western Australia
Level 1
Hyatt Centre
87 Adelaide Terrace
East Perth WA 6004
Facsimile: 08 9325 1636
Attention: Chairman”.
Schedules C, D and E inserted
The State Agreement is amended by inserting after Schedule B new Schedules C, D and E in the form attached to this Agreement.
SCHEDULE C
ITEM 1 – CASINO TAX
Electronic Gaming Machine Tax
| Period | Electronic Gaming Machine Tax |
| On and from 24 December 2002 to 23 December 2003 | 17% of Casino Taxable Revenue for Electronic Gaming Machines |
| On and from 24 December 2003 to 23 December 2004 | 18% of Casino Taxable Revenue for Electronic Gaming Machines |
| On and from 24 December 2004 | 20% of Casino Taxable Revenue for Electronic Gaming Machines |
Table Game Tax
| Period | Table Game Tax |
| On and from 24 December 2002 to 23 December 2004 | 16% of Casino Taxable Revenue for Table Games |
| On and from 24 December 2004 to 23 December 2006 | 17% of Casino Taxable Revenue for Table Games |
| On and from 24 December 2006 | 18% of Casino Taxable Revenue for Table Games |
International Commission Business Tax
| Period | International Commission Business Tax |
| On and from 24 December 2002 to 23 December 2004 | 13% of Casino Taxable Revenue for International Commission Business |
| On and from 24 December 2004 to 23 December 2006 | 12% of Casino Taxable Revenue for International Commission Business |
| On and from 24 December 2006 | 11% of Casino Taxable Revenue for International Commission Business |