Community Gaming Act 2018

The Act defines a "gaming activity" broadly in section 5(1) as: (a) a game of chance or a game partly of skill and partly of chance; (b) without limiting (a), the award of any prize by lot or on the basis of a chance contingency related to a horse race, sporting event or competition; and (c) any activity, event, scheme or other matter prescribed by the regulations. The Act applies only if the activity involves the sale or other disposal of property or services, or a promise to do so, to participants (s 5(2)). It applies whether or not consideration is paid by participants (s 5(3)). The regulations may exempt certain matters from being gaming activities (s 5(4)). "Conduct" of a gaming activity is defined in section 6: it means to conduct or organise the activity, whether alone or with others (s 6(1)). Persons taken to conduct an activity include each person who authorises it as an officer, trustee or member of the governing body of an incorporated or unincorporated body; a person or body that authorises it by an agent, contractor or employee; a person who assists in conducting or organising; and a person who solicits or receives money, property or other benefit in the course of the activity (other than as a prize winner or participant) (s 6(2)). A person does not conduct an activity if they act solely as agent or employee of another, or merely give money or other benefit in the course of the activity (s 6(3)). "Permitted gaming activity" means a gaming activity permitted under section 10 and includes activities taken under section 7 to be permitted (s 4). Section 7 extends the Act to external gaming activities (outside Australia or in another State or Territory) if NSW residents can participate; such activities are taken to be permitted if authorised under a corresponding law prescribed by regulations (s 7(2)). "Authority" means an authority to conduct a permitted gaming activity granted under the regulations (s 4). "Participant" includes a person who enters, competes or otherwise participates, or on whose behalf another does so (s 5(1)). "Prize" includes any property or services sold or otherwise disposed of by means of a gaming activity (s 4). "Authorised officer" includes the Secretary, a person authorised in writing by the Secretary, an investigator under the Fair Trading Act 1987, or a police officer (s 4). The Department is the Department of Customer Service (s 4). Notes in the Act do not form part of the Act (s 4(2)).

The Act affects any person or body that conducts, organises, authorises, assists in, or receives money from a gaming activity. This includes incorporated and unincorporated bodies, their officers, trustees, members of governing bodies, agents, contractors and employees (s 6(2)). The definition of "conduct" is deliberately broad to capture all persons involved in any capacity other than as a participant or prize winner. Officers, trustees and governing body members who authorise an activity are individually responsible (s 6(2)(a)). A person or body that authorises an activity through an agent or contractor is also taken to conduct it (s 6(2)(b)). Anyone who assists in conducting or organising is caught (s 6(2)(c)), as is anyone who solicits or receives money, property or other benefit in the course of the activity (except prize winners or participants) (s 6(2)(d)). The regulations may prescribe additional persons (s 6(2)(e)). Those who act solely as agents or employees of another conductor are excluded (s 6(3)(a)). The Act particularly targets organisations that conduct gaming activities for charitable, social, not-for-profit or trade promotion purposes (s 3(1)(a)). Participants are protected but also subject to the prohibition on conducting activities (s 8(5)(b) exempts participants' acts done solely in that capacity). The Secretary and authorised officers exercise regulatory functions over these persons. The Act also affects publishers of advertisements: section 9 prohibits publishing advertisements promoting a gaming activity if its conduct is prohibited, but provides defences for publishers who did not know and could not reasonably have known of the prohibition (s 9(2)), or who published material provided by the conductor and have not been notified by the Secretary (s 9(3)). The Act also affects beneficiaries of gaming activities: proceeds and profits must be applied to the purposes for which the activity is purported to be conducted (s 3(2)(c)). Trustees and governing body members are jointly and severally liable for certain amounts if they knowingly authorised or permitted an offence (ss 28(5)-(6), 30(7), 35(7), 45(3)). Corporations are affected: directors and persons concerned in management are taken to have contravened a provision if they knowingly authorised or permitted the contravention (s 44(1)), and they may be convicted whether or not the corporation is proceeded against (s 44(2)).

The Act imposes a central duty not to conduct a gaming activity unless it is a permitted gaming activity carried out in accordance with the Act and regulations (s 8(1), (5)(a)). The duty extends to not receiving money for tickets, not selling tickets, and not printing tickets (ss 8(2)-(4)). Those who conduct permitted gaming activities must ensure they have any required authority (s 10(2)(b)), and must comply with conditions on the authority (s 11(5)-(6)). Section 13 imposes a duty on the conductor to award each prize to the winner; contravention is an offence with a maximum 50 penalty units (s 13(2)). A defence exists if the conductor could not locate the winner after all reasonable inquiries (s 13(3)), and the regulations may specify additional defences (s 13(4)). Section 14 creates an indictable offence for misappropriation of money raised or prizes connected with a permitted gaming activity, with a maximum 200 penalty units or 5 years imprisonment, or both. Section 15 prohibits fraudulent conduct: conducting a game of chance (or partly chance) so that not all participants have an equal chance with intent to defraud (s 15(1)), or fraudulently conducting a game partly of skill and partly of chance (s 15(2)), each punishable by 50 penalty units or 6 months imprisonment. Section 16 makes it an indictable offence (200 penalty units or 5 years, or both) to falsify, alter, make false entries or omit material particulars in records relating to a permitted gaming activity with intent to defraud or deceive. Section 17 prohibits false representations to employees or agents involved in the conduct, knowing or reckless as to the falsity, with a maximum 50 penalty units or 6 months. Section 18 provides no double jeopardy: if an act is an offence against both sections 16 and 17, a person may only be punished under one. The Act also imposes duties in relation to enforcement: persons must not hinder or obstruct authorised officers, must comply with notices under Division 1 of Part 3 (e.g., produce documents, answer questions), and must not alter or conceal documents (s 29). Compliance notices under section 30 require the person to remedy contraventions, and failure to comply is an offence (s 30(6)). Orders prohibiting conduct of gaming activities (s 33) or prohibiting a person from conducting gaming activities for up to 2 years (s 34) may be issued; non-compliance is an offence. Persons subject to such orders may apply to the Civil and Administrative Tribunal for administrative review (ss 33(4), 34(4)). Court orders under section 35 can require payment to participants or beneficiaries, or cessation of activity; non-compliance is an offence (s 35(6)-(7)). Enforceable undertakings under Division 3 provide a mechanism for voluntary compliance without admission of guilt (s 37(2)); they cannot be contravened (s 39) and the Secretary can apply to the Local Court for orders if contravened (s 40). A person may also be entitled to receive a penalty notice for minor offences (s 46).

The Act provides a range of penalties, escalating with the seriousness of the offence. The general prohibition under section 8 carries a maximum 50 penalty units. Publishing prohibited advertisements under section 9 also carries 50 penalty units. Failure to award a prize (s 13) is 50 penalty units. The most severe penalties apply to indictable offences: misappropriation of funds or prizes (s 14) and falsification of records (s 16) each carry up to 200 penalty units or imprisonment for 5 years, or both. Fraudulent conduct (s 15) and false representations (s 17) each carry up to 50 penalty units or 6 months imprisonment, or both. Offences relating to inquiries and inspections (s 29) carry up to 50 penalty units or 6 months imprisonment, or both. Failure to comply with a compliance notice (s 30(6)), an order prohibiting conduct (ss 33(2), 34(2)), or a court order (s 35(6)) each carry 50 penalty units. Contravening an enforceable undertaking (s 39) carries 50 penalty units. A court may also suspend, revoke or vary an authority upon conviction for any offence (s 45(1)), and failure to comply with such a court order is an additional offence (s 45(2)-(3)). The Act provides for penalty notices (s 46) for offences prescribed by the regulations; the amount must not exceed the maximum court-imposed penalty (s 46(4)). Enforcement powers include: entry to non-residential premises without consent or warrant (s 22(1)); entry with consent or warrant (s 22(2)); powers at premises including inquiries, document inspection, copying, photographs, seizure of documents (s 24); notices requiring production of documents and information (s 25); search warrants under section 26 (with police accompaniment under s 26(2A)); and recovery of enforcement expenses from a person found guilty of an offence, with joint and several liability for trustees and governing body members who knowingly authorised or permitted the offence (s 28). The Secretary may also accept enforceable undertakings (s 37), which become publicly available (s 38). Court orders can compel payment to participants or beneficiaries, cessation of activity, or compliance with an authority (s 35). The Local Court's payment orders are capped at $100,000 (s 35(5)); the Supreme Court has unlimited jurisdiction. Applications for court orders must be made within 2 years after the activity was conducted (s 35(2)). Proceedings for most offences may be dealt with summarily in the Local Court; sections 14 and 16 are indictable but may be dealt with summarily under the Criminal Procedure Act 1986 unless an election is made (s 43, note).

Section 10(3) explicitly provides that nothing in the Unlawful Gambling Act 1998 or any other law renders unlawful a gaming activity that is a permitted gaming activity under this Act. This establishes a saving provision for permitted activities, ensuring consistency across NSW gambling regulation. The Act also interacts with the Fair Trading Act 1987: investigators appointed under section 18 of that Act are authorised officers under this Act (s 4 definition of authorised officer), and their powers and identification requirements are cross-referenced (ss 19(5), 20(2)). The Act applies to external gaming activities under section 7: if conducted outside Australia (whether lawful there or not) or in another State or Territory, and NSW residents can participate, the Act applies. However, if such an activity is authorised under a corresponding law of another State or Territory prescribed by regulations, it is taken to be a permitted gaming activity (s 7(2)). This avoids double authorisation requirements. The Act interacts with the Licensing and Registration (Uniform Procedures) Act 2002: section 11(9) provides that regulations may amend Schedule 1 to that Act to apply uniform licensing provisions to authorities under this Act. The Act also interacts with the Law Enforcement (Powers and Responsibilities) Act 2002: search warrants under section 26 are governed by Division 4 of Part 5 of that Act (s 26(3)). The Fines Act 1996 applies to penalty notices under section 46 (s 46(3)). The Criminal Procedure Act 1986 chapter 5 applies to indictable offences under sections 14 and 16 (s 43 note). The Administrative Decisions Review Act 1997 applies to review of certain decisions: persons given orders under sections 33 or 34 may apply to the Civil and Administrative Tribunal for administrative review (ss 33(4), 34(4)). The repealed Lotteries and Art Unions Act 1901 and its regulation are repealed (s 50), and former permits are deemed authorities under this Act (Schedule 1, Part 2, cl 5). The Act also interacts with the Firearms Act 1996 and Weapons Prohibition Act 1998: section 12 prohibits prizes consisting of firearms, ammunition, imitation firearms, or prohibited weapons as defined in those Acts. The Act also has an interface with the Interpretation Act 1987: definitions and provisions affecting interpretation apply (s 4 note). Finally, the Act contemplates that regulations may impose civil penalties for regulatory offences, conferring jurisdiction on a person, court or tribunal and providing for appeals (s 49(2)(f)).

The Community Gaming Act 2018 has been amended several times since its enactment. Section 3 (objects) was amended by the Statute Law (Miscellaneous Provisions) Act 2019 No 23, Schedule 1.5[1]. Section 10 (permitted gaming activities) was amended by the same Act, Schedule 1.5[2]. Section 4 (definitions) was amended by the Statute Law (Miscellaneous Provisions) Act 2022 No 59, Schedule 3.12, and by the Fair Trading Legislation Amendment Act 2023 No 7, Schedule 3.4, which updated references to the Department and Secretary. Section 26 (search warrants) was amended by the COVID-19 Legislation Amendment (Stronger Communities and Health) Act 2020 No 25, Schedule 2.2[1][2], inserting subsection (2A) allowing a police officer to accompany an authorised officer executing a warrant. Section 49 (regulations) was amended by the Better Regulation and Customer Service Legislation Amendment (Bushfire Relief) Act 2020 No 3, Schedule 1.7[1], inserting subsection (2)(o) concerning waiver, reduction, postponement or refund of fees. That same Act inserted Part 3 of Schedule 1 (savings and transitional provisions consequent on that Act), and made related amendments to Schedule 1 (see sch 1, as amended by that Act). Sections 38 and 41 (enforceable undertakings) were amended by the Public Health (Consequential Amendments) Act 2024 No 25, Schedule 1.3[1][2], requiring the Secretary to make notices and reasons publicly available on a NSW Government website or by other appropriate electronic means. Section 48 (service of documents) was amended by the same 2024 Act, Schedule 6.6, adding subsection (1)(e1) allowing service by other electronic means to an address specified by the person. The amendment history notes appear after sections 3, 4, 10, 26, 38, 41, 48, 49, and in Schedule 1. No other amendment details are provided in the source text.

The Act itself does not contain any reference to litigation history. No cases are mentioned in the source text. However, the Act provides mechanisms that could generate litigation: administrative review of decisions by the Secretary to issue orders under sections 33 or 34 may be sought in the Civil and Administrative Tribunal (ss 33(4), 34(4)). The Local Court and Supreme Court have jurisdiction to make orders under section 35 on application by the Secretary, and such orders may be enforced via judgment registration (s 36). The Local Court also has jurisdiction to deal with contraventions of enforceable undertakings (s 40), and to hear summary proceedings for most offences (s 43). The Act does not create a private right of action for participants; enforcement is primarily regulatory. The serious indictable offences under sections 14 and 16 may be prosecuted on indictment, which could lead to higher court proceedings. The Act also contemplates appeals against civil penalties imposed by regulations (s 49(2)(f)) and reviews of authority suspension or cancellation (s 11(8)(e)). Practitioners should be aware that the Act is relatively recent (2018) and the body of case law is likely still developing. The savings and transitional provisions in Schedule 1 preserve former permits and activities, so some litigation may arise from transitional issues, particularly if regulations made under this Act differ from the former legislation. No specific litigation history is otherwise evident from the source.

Several provisions pose traps for the unwary. The broad definition of "conduct" in section 6 is a significant gotcha. It catches not only the organiser but also anyone who authorises the activity (including as an officer, trustee, or governing body member), anyone who assists in conducting or organising, and anyone who solicits or receives money or other benefit in the course of the activity (other than as a prize winner or participant). This means a volunteer selling tickets could be deemed to conduct the activity, and a board member who merely approves the activity may be personally liable. Section 6(2)(a) expressly includes each person who authorises as an officer, trustee or member of the governing body, so trustees of a charitable trust face individual exposure. Section 8(4) prohibits printing a ticket or making it available in electronic form - this is a standalone prohibition even if the activity is permitted; the person printing must ensure the activity is permitted. Section 9(2)-(3) provides defences for publishers, but the defence under section 9(3) requires that the publisher has not been notified by the Secretary that publication may contravene the section; once notified, further publication is at the publisher's risk. Section 11(4) allows the Secretary to consider the public interest when granting an authority - this is a broad discretion with no defined criteria in the Act. Section 12 prohibits certain prizes: tobacco, firearms, imitation firearms, prohibited weapons. Note that "imitation firearm" is defined by the Firearms Act 1996, which may catch realistic replicas. The regulations may add other items. Section 13 requires prize winners to be awarded the prize; the defence for inability to locate the winner after all reasonable inquiries may be difficult to satisfy if the conductor did not have a mechanism to contact winners. Section 14 captures agents or employees who convert money or prizes; note the conduct need not be fraudulent - conversion to own use is sufficient, even if temporarily. Section 16 (falsification of records) uses "with intent to defraud or deceive" - deceiving is broader than defrauding, so even a record altered to mislead internal auditors could be caught. Section 18 (no double jeopardy) only applies to sections 16 and 17; a person could be charged under both section 14 and section 15 for related conduct. Section 29(e) prohibits altering, concealing or destroying any document required to be produced under a notice - this applies even before the notice is issued if the document is "required to be produced". The compliance notice power under section 30 is broad: it can require remedy of a contravention or prevention of a likely contravention, and can include directions as to measures to be taken. Failure to comply is an offence, and trustees or governing body members are individually liable if they knowingly authorised or permitted the failure (s 30(7)). Section 33 allows the Secretary to prohibit conduct of a gaming activity if "it would otherwise be against the public interest" - no defined criteria. Section 34 allows prohibition from conducting any gaming activities for up to 2 years for persistent failure - note this can apply even if only one activity was previously conducted. Section 35(2) imposes a 2-year limitation period for court orders from the time the activity was conducted, not from the time of discovery. Section 44 imposes personal liability on directors and managers for corporation offences if they knowingly authorised or permitted the contravention - no requirement of active participation. Section 45 allows a court to suspend or revoke an authority even as an alternative to imposing a penalty. The fees recovery provision in section 28 applies only if a person has been found guilty, but the liability attaches to the body and its trustees jointly and severally, even if the trustees themselves were not convicted. Finally, regulations under section 49 can create offences with penalties up to 50 penalty units, and can impose civil penalties - practitioners must check the Community Gaming Regulation 2020 (or current version) for details not in the Act itself.

Compliance with the Community Gaming Act 2018 requires a structured approach. First, determine whether the proposed activity is a "gaming activity" under section 5(1). If it involves a game of chance or mixed chance and skill, or a prize awarded by lot or chance contingency related to a horse race, sporting event or competition, it is likely captured. Check whether the regulations exempt the activity (s 5(4)). If the activity is a gaming activity, the general prohibition in section 8 applies unless the activity is a permitted gaming activity (s 10). Check the regulations for the list of permitted gaming activities and whether an authority is required (s 10(2)(b)). If an authority is required, apply to the Secretary under section 11, demonstrating that the applicant has the prescribed qualifications (s 11(2)(a)), is a fit and proper person (s 11(3)), and that it is in the public interest (s 11(4)). Ensure the application is complete and accurate; false representations are an offence under section 17. Once an authority is granted, comply with all conditions, including those imposed by the regulations (s 11(5)-(6)). Maintain records relating to the activity (s 49(2)(i) allows regulations to prescribe record-keeping requirements). Ensure that prizes do not include prohibited items under section 12 (tobacco, firearms, imitation firearms, prohibited weapons, or items prescribed by regulations). Award all prizes to winners; if a winner cannot be located, document all reasonable inquiries to rely on the defence under section 13(3). Do not misappropriate money raised or prizes (s 14). Ensure that participants have an equal chance of winning (s 15(1)) and do not conduct the activity fraudulently (s 15(2)). Do not falsify records (s 16). If using agents or employees, ensure they are properly supervised and do not commit offences; the principal may be deemed to be conducting the activity (s 6(2)(b)). Do not publish advertisements if the activity is prohibited (s 9). If served with a compliance notice (s 30), comply within the specified period or seek an extension under section 31. If the Secretary issues an order prohibiting conduct (s 33) or prohibiting the person from conducting any gaming activities (s 34), comply immediately and consider applying for administrative review to NCAT (ss 33(4), 34(4)). Consider giving an enforceable undertaking under section 37 if a contravention has occurred, which may avoid prosecution; but ensure compliance. Cooperate with authorised officers exercising investigation powers (s 29). If a corporation, ensure that directors and persons concerned in management are aware of their personal liability under section 44. Finally, monitor the regulations periodically for new requirements, prohibitions, or changes to fee schedules. Seek legal advice before commencing any novel gaming activity, especially if it involves external participants (s 7) or novel prizes.