Gaming and Betting (Contracts and Securities) Act 1985

Lawful bet and lawful betting are defined by exclusion: a lawful bet is a bet made otherwise than by way of unlawful betting, and includes a prescribed bet. Unlawful betting is betting of a kind declared or deemed unlawful by or under any Act or law. So the concept is residual and heavily dependent on other legislation. The critical operative category is prescribed bet, which has four limbs:
(a) a bet made with a person lawfully carrying on the business of a bookmaker under the Betting Control Act 1954 (now effectively superseded by the Racing and Wagering Western Australia Act 2003), entered into in the course and for the purposes of that business;
(aa) a bet made with a totalisator operated by the committee of a racing club or other authority controlling a racecourse under an authority granted under the Betting Control Act 1954;
(b) a bet made with a person authorised to accept bets of that kind under an Act specified in the Schedule or under a prescribed provision; or
(c) a bet of a kind prescribed, or made in circumstances prescribed, by regulations.

The prescribed provision is a provision of an Act declared by the regulations to be such for the purposes of the Act. This allows the Executive to extend enforceability to new forms of betting without amending the Act itself, though no such regulations are currently in force under this Act specifically.

Lawful gaming and prescribed gaming mirror the betting definitions. Lawful gaming is gaming other than unlawful gaming. Unlawful gaming is defined by cross-reference to the Gaming and Wagering Commission Act 1987 s.42 (which deems certain games unlawful) or any other Act or law. Prescribed gaming is gaming conducted under an authorisation conferred by a Schedule Act or a prescribed provision, or gaming of a prescribed kind or in prescribed circumstances.

The Schedule lists the statutes under which prescribed gaming or betting can occur: Racing and Wagering Western Australia Act 2003, Lotteries Commission Act 1990, Casino Control Act 1984, Casino (Burswood Island) Agreement Act 1985, and Gaming and Wagering Commission Act 1987. This list has been expanded by amendment; notably, the 2003 amendments added the Racing and Wagering Western Australia Act 2003 and removed references to earlier legislation. The definition of prescribed provision and the Schedule together give the regulations and those listed Acts the power to determine which gambling products receive the benefit of enforceability.

A critical structural point: the Act adopts definitions (other than the defined terms themselves) from the Gaming and Wagering Commission Act 1987 by reference (s.3(1)). That means changes to the definitions in that later Act automatically flow through to this Act. This creates an interdependent web: whether a particular bet is enforceable under s.5 may depend on the licensing status of the operator under the Gaming and Wagering Commission Act 1987 or the Racing and Wagering Western Australia Act 2003, not on the text of this Act alone.

The Act directly affects any person who participates in or provides financial accommodation for gaming or betting in Western Australia. Licensed gambling operators are the primary beneficiaries: bookmakers, totalisator operators, casino operators and lottery providers can sue to recover debts arising from bets placed with them because such bets fall within prescribed betting or prescribed gaming. This reduces their credit risk and allows them to offer credit betting (subject to other regulatory restrictions) with confidence that the state will enforce collection. Punters are affected asymmetrically: if they lose a bet with a licensed operator, they can be sued; if they win, they can also sue. But if they bet with an unlicensed operator (for example, an offshore online bookmaker not authorised under a Schedule Act), the operator cannot sue them for the debt, nor can the punter sue to recover winnings if the operator refuses to pay. However, the Act does not prohibit voluntary payment; the punter may still pay and cannot later reclaim the money on grounds of illegality because the contract is void, not illegal per se in the sense of creating a criminal offence.

Lenders who advance money for gaming or betting are deeply affected. Section 6 permits recovery of loans for lawful gaming or lawful betting. That means a bank or friend who lends money to a person to place a bet with a licensed bookmaker can recover the loan in court, and any security (e.g. a mortgage) given for that loan is valid. But if the loan is for unlawful gaming (e.g. playing an unlicensed card game), the loan is not recoverable under s.6, and any security is illegal consideration under s.4(1)(b). The burden is on the lender to verify the purpose of the loan and the lawfulness of the underlying gaming or betting. This creates a practical compliance cost: lenders must obtain representations or evidence that the borrower intends to use the money for lawful gaming, or risk having an unenforceable debt.

Holders of cheques or other securities given for gambling debts must determine whether the underlying consideration was for winnings (s.4(1)(b)) or for a loan for lawful gaming (s.6). A cheque for winnings from a lawful bet is not illegal consideration? Actually, s.4(1)(b) applies to securities where the consideration is money won by way of gaming or on a bet. If the bet was a prescribed bet, the exception in s.4(1) applies: the contract is not null and void, and presumably the security is not tainted because the entire arrangement falls within the exception. But careful reading: s.4(1)(b) says "subject to section 6", but does not say "subject to subsections (1) or (2)" , it says "subject to section 6". So securities given for winnings from prescribed betting might still be deemed illegal consideration unless s.6 saves them. But s.6 only applies to loans, not to winnings. This is a potential trap: a punter who writes a cheque to a bookmaker to pay a winning bet that is not a prescribed bet (e.g. a bet with an unlicensed operator) gives that cheque for an illegal consideration. The bookmaker cannot enforce it. Even if the bet was prescribed, the wording of s.4(1)(b) does not carve out prescribed bets from the illegal consideration rule, because the exception in s.4(1) is for "contracts or agreements" , but s.4(1)(b) is about securities, not contracts. The structure suggests that s.4(1)(a) makes contracts null and void except for prescribed gaming/betting; s.4(1)(b) makes securities illegal consideration unless saved by s.6. The interplay is complex and may be resoluble by reading the phrase "Except in so far as they relate to, or arise out of a contract or agreement relating to, prescribed gaming or prescribed betting" at the start of subsection (1) as applying to paragraph (b) as well. But the drafter probably intended that. The practical effect: anyone taking a security for a gambling debt must ensure either that the debt arises from prescribed gaming/betting or that the security is given for a loan for lawful gaming/betting.

The Act imposes no positive duties. It confers and removes rights. The central right is under s.5: a person who makes a lawful bet in the course and for the purposes of prescribed gaming or prescribed betting is deemed to have made a contract and may sue (or be sued) on that contract in any competent court. This right is subject to the provisions of the Schedule Acts or any prescribed provision relating to that situation , meaning that if the Gaming and Wagering Commission Act 1987 imposes conditions on the enforceability of casino debts, those conditions override s.5.

Section 6 confers a right on lenders to recover money or valuable things lent for the purpose of lawful gaming or lawful betting, or to pay a debt arising from lawful gaming or lawful betting. It also validates any security given for that purpose, overriding the illegal consideration rule in s.4(1)(b). This allows financial institutions to lend to gamblers without fear that the loan will be void on grounds of public policy. But note the limitation: the loan must be for lawful gaming or betting. If the borrower uses the funds for unlawful gaming, the lender may still have a claim if the lender had no knowledge, but the Act does not expressly address that , the wording is "lent or advanced for the purpose of lawful gaming". If the lender advances money with the purpose that the borrower use it for lawful gaming, but the borrower instead uses it for unlawful gaming, the advance may still have been "for the purpose of lawful gaming" from the lender's perspective. There is case law in other jurisdictions on similar wording; in WA the point is untested.

Section 4(1)(a) removes the right to bring proceedings to recover money or other valuable things won at gaming or upon a bet, except for prescribed gaming or betting. This applies even if the gaming was lawful but not prescribed. For example, social gaming for money in a private home is not "prescribed gaming" unless it falls within an exception , the winner cannot sue to collect. The loser also cannot sue to recover losses if paid voluntarily, because the contract is void and there is no unjust enrichment claim? The Act does not deal with restitution; common law principles apply. In effect, the Act leaves parties to social gambling in a legal vacuum: no enforcement, no recovery, but voluntary payments are final.

Section 4(2) preserves the right to sue for stakes, deposits or allowances payable to owners in lawful races, and for subscriptions or contributions to prize money for lawful races, games, sports, pastimes or exercises. This avoids absurd results where a race club could not enforce a promise by an owner to pay a nomination fee.

The Act creates no criminal penalties. Its enforcement mechanism is entirely civil and reactive: it governs the ability to sue in contract or on securities. The bar on proceedings in s.4(1)(a) is automatic , a court may (and should) dismiss an action to recover gambling winnings even if the defendant does not plead the Act, because the Act says "no proceedings shall be brought or maintained". This is a jurisdictional bar. A plaintiff who sues on an unenforceable gambling debt faces immediate dismissal, and may be ordered to pay costs. There is no penalty beyond costs and the loss of the claim.

For securities deemed illegal consideration under s.4(1)(b), the consequence is that the security is void and unenforceable. The holder cannot sue on it. If the security is a cheque, the bank may refuse payment on the grounds of illegality, and the drawer cannot be sued for dishonour. But note that s.4(1)(b) does not make the security illegal in the sense of a criminal offence; it merely deems it to have been given for an illegal consideration. That taints the transaction but does not expose the parties to prosecution under this Act. Other laws may apply (e.g., if the underlying gambling is criminal, the cheque may be used as evidence of an offence under the Gaming and Wagering Commission Act 1987 or the Criminal Code).

Enforcement of prescribed bets proceeds under s.5. A successful judgment in a court of competent jurisdiction gives the winning party all usual remedies: damages, specific performance? (specific performance of a gambling contract is unlikely, but damages for breach of contract are available). The judgment itself is enforceable as any other judgment. Section 5 says "effect may be given to the judgment given in the proceedings." That is unremarkable.

Section 6 enforcement: a lender can sue for debt or enforce security as with any commercial loan. The only special requirement is proof that the loan was for lawful gaming or lawful betting. This may be difficult if the lender did not document the purpose. A prudent lender obtains a written acknowledgment from the borrower.

The Act does not confer investigatory powers. Enforcement relies entirely on private litigation. There is no regulator tasked with monitoring compliance. The relevant regulators (e.g., the Gaming and Wagering Commission) have powers under their own Acts to police unlawful gambling, but this Act does not add to those powers.

The Act is expressly dependent on a network of other Western Australian statutes. Section 3(1) imports definitions from the Gaming and Wagering Commission Act 1987. That means if that Act is amended and changes the definition of "gaming" or "betting", the meaning in this Act shifts accordingly. Section 3(2) defines "unlawful gaming" by reference to s.42 of the Gaming and Wagering Commission Act 1987 (which deems certain games unlawful) and "otherwise declared or deemed to be unlawful by or under any Act or law." So other Acts such as the Criminal Code (e.g. offences relating to cheating at gaming) or local government by-laws could affect what is unlawful.

The Schedule lists Acts under which prescribed betting or prescribed gaming may occur. The Racing and Wagering Western Australia Act 2003 replaced the Betting Control Act 1954 for most purposes, but the Betting Control Act 1954 is still referred to in the definitions of "prescribed bet" and in s.4(2). The 2003 amendments updated the Schedule but did not excise all references to the older Act. This creates potential confusion: a bet with a bookmaker licensed under the Racing and Wagering Western Australia Act 2003 is likely a prescribed bet because that bookmaker is "lawfully carrying on the business of a bookmaker" under an Act that took over the licensing function. But the precise wording of s.3(2) limb (a) still refers to the Betting Control Act 1954. A court would likely read it as a reference to the current equivalent, but it is not clean.

Section 5 provides that the deemed contract is "subject to the provisions of an Act specified in the Schedule or to any prescribed provision relating thereto." This subordination means that if, for example, the Casino Control Act 1984 imposes a condition that casino debts are only enforceable if certain procedures are followed (e.g., the gambler signed a credit agreement), that condition must be met before s.5 operates. This Act does not override those specific regulatory requirements.

The interaction with the TAB (Disposal) Act 2019 is notable: s.150 of that Act (uncommenced) may amend this Act. If proclaimed, it could change the Schedule or definitions, potentially removing or adding categories of prescribed betting. This uncertainty affects anyone currently relying on the TAB as a prescribed operator.

The Act also interacts with the Property Law Act 1969 and Bills of Exchange Act 1909 (Cth) regarding securities. The deeming of illegal consideration under s.4(1)(b) may affect the rights of a holder in due course of a cheque or promissory note. If a cheque given for an illegal consideration is negotiated to a third party, that third party may still enforce it under negotiable instruments law if they took it in good faith and for value, because the illegality defence is personal to the original parties? Section 4(1)(b) deems the security to have been given for an illegal consideration, but does it affect the underlying obligation? In other jurisdictions, a holder in due course can enforce a cheque even if it was given for an illegal gaming debt, subject to public policy. In WA, the Act does not address this, leaving it to general law. However, the bar in s.4(1)(b) is likely to be treated as a statutory illegality that may be raised against any holder.

The Act received royal assent on 24 April 1985 and commenced on 1 June 1985 (gazetted 31 May 1985). It consolidated prior law, replacing earlier provisions in the Gaming and Wagering Commission Act 1987 that dealt with contracts. The first amendment came in 1998: the Lotteries Commission Amendment Act 1998 s.23 amended the Schedule to add the Lotteries Commission Act 1990. This reflected the establishment of the Lotteries Commission as a separate entity.

Major amendments occurred in 2003. The Racing and Gambling Legislation Amendment and Repeal Act 2003 Pt.8, assented 26 June 2003 and commenced 30 January 2004, made significant changes: it added the definition of prescribed bet limb (aa) for totalisator bets, and amended the Schedule to add the Racing and Wagering Western Australia Act 2003 and remove the Western Australian Turf Club Act 1879 and Trotting Clubs Act 1946. Those changes aligned the Act with the creation of the Racing and Wagering Western Australia body. Separately, the Statutes (Repeals and Minor Amendments) Act 2003 s.57, which commenced on 15 December 2003, made minor amendments to s.3(2) and the Schedule, likely updating references.

In 2010, the Standardisation of Formatting Act 2010 s.4 amended the Schedule heading (changing "s. 3" to "[s. 3]") for formatting consistency. This was a non-substantive reprint correction.

An uncommenced amendment exists: s.150 of the TAB (Disposal) Act 2019, assented 18 September 2019, is yet to be proclaimed. The text of that section is not included in the compilation, but it is listed. It likely deals with the transfer of TAB operations and may affect the Schedule or prescribed betting definitions. Until proclaimed, the Act remains as at the 2010 reprint.

The compilation table shows that reprint 1 (27 February 2004) includes all amendments up to 2003. The compilation used for this deep dive likely reflects subsequent formatting amendments. The Act has not been materially amended for over a decade, but the dangling uncommenced provision creates a shadow of future change.

There is very little reported case law under this Act in Western Australia. It has not been the subject of significant appellate interpretation, unlike the equivalent legislation in other Australian states (e.g., the Gaming and Wagering Commission Act 1987 in WA has more litigation). The reasons for the absence of reported cases are several: first, the Act is clear in its core operation , most gambling debts are not enforceable except those from licensed operators, and that reflects commercial reality where disputes are resolved without resort to courts. Second, the Act does not create new causes of action; it merely declares the enforceability or otherwise of existing ones. Disputes that do arise are likely to be settled or litigated in lower courts without published reasons.

One area where litigation might occur is the definition of prescribed bet or prescribed gaming in the context of novel gambling products, such as online sports betting with an operator licensed under the Racing and Wagering Western Australia Act 2003 but not physically present in WA , whether such a bet is "made with a person lawfully carrying on the business of a bookmaker under the Betting Control Act 1954" is now anachronistic. A court would have to decide whether to read the Act as referring to the current equivalent legislation. Another potential area is the interplay with the Casino Control Act 1984: s.5 makes the deemed contract subject to that Act, so a dispute about whether a casino had to comply with specific credit procedures before suing a patron could generate case law. As of the present compilation, no such reported decisions are noted.

The lack of litigation history means that the Act's interpretation remains largely textual and untested at appellate level. Practitioners must rely on the plain meaning of the words, the weight of established practice, and analogies from other Australian jurisdictions that have similar provisions (e.g., the Gaming and Betting (Contracts and Securities) Act 1960 in Queensland, which has similar wording). However, those analogies are not binding in WA. The Act is stable but brittle: if a novel issue arises, the court will have no local precedent to guide it.

1. The securities trap: Section 4(1)(b) deems securities given for winnings (not loans) to be for illegal consideration, but does not have an explicit exception for prescribed bets. The exception at the start of s.4(1) refers to "contracts or agreements" , does "or" cover paragraph (b)? The syntax is ambiguous. A cheque given to pay a winning bet to a licensed bookmaker might still be caught. The better view is that the exception covers both paragraphs, but reliance on that construction is risky without case law. Lenders should always document loans, not winnings.

2. Prescribed provision drift: The definition of prescribed bet allows the regulations to declare new kinds of bets enforceable. But no such regulations exist as of the compilation. If they are made, they will operate retrospectively? No, regulations are usually prospective, but the Act does not limit the Governor's power. Anyone dealing in novel betting products should check whether regulations have been made before assuming enforceability.

3. The reference to the Betting Control Act 1954: This Act is largely superseded. Limb (a) of prescribed bet still refers to it. A bookmaker licensed under the Racing and Wagering Western Australia Act 2003 may not be "lawfully carrying on the business of a bookmaker under the Betting Control Act 1954". A court may apply the Interpretation Act 1984 (WA) s.42 to read the reference as to the current Act, but that is not automatic if the provision is considered spent. This creates uncertainty for all bookmaker transactions.

4. Unlawful betting definition: Unlawful betting means betting declared or deemed unlawful by or under any Act or law. That includes not just WA legislation but also Commonwealth laws? Possibly, if a Commonwealth law deems a particular bet unlawful, the Act would treat it as unlawful betting and thus void. For example, the Interactive Gambling Act 2001 (Cth) prohibits certain online betting services; if a bet is prohibited by that Act, it may be deemed unlawful under "any Act or law" and therefore unenforceable. The Act does not limit "any law" to WA law.

5. Voluntary payment irreversibility: The Act does not provide a right to recover money paid under an unenforceable gambling debt. If a punter pays a debt voluntarily, they cannot later reclaim it on the grounds that the debt was unenforceable. This is consistent with the common law principle that money paid under a void contract is not recoverable if the contract is not illegal, only unenforceable. But if the underlying gambling was unlawful (criminal), the payment may be recoverable for illegality. The Act does not address this, so general law applies.

6. The TAB (Disposal) Act 2019 uncommenced provision: s.150 may amend this Act in ways that could affect existing contracts or securities. Until proclaimed, practitioners must assume current law, but if the amendment is retrospective (unlikely), it could disrupt settled expectations. Any transaction involving TAB betting should note this uncertainty.

Compliance with this Act is largely about documentation and classification. For gambling operators (bookmakers, totalisators, casinos, lottery providers), the primary requirement is to ensure that every bet accepted falls within the definition of prescribed bet or prescribed gaming. That means operating under the relevant Schedule Act and complying with its conditions. If a bet is not prescribed, the operator cannot sue for unpaid wagers. Operators should maintain records that demonstrate the bet was authorised under the applicable Act, including the licence or authorisation number, the nature of the bet, and that it was made in the course of the business. For credit betting, the operator should have a signed credit agreement that clearly states the bet is a prescribed bet. The operator should also be aware that taking a cheque for payment of a losing bet may be risky if the cheque is treated as given for illegal consideration; it is safer to require direct debit or cash for settlement.

For lenders lending money for gambling, compliance under s.6 requires a written acknowledgment from the borrower that the loan is for the purpose of lawful gaming or lawful betting. The lender should specify the purpose in the loan agreement. If the borrower misrepresents the purpose and uses the money for unlawful gaming, the lender may still be protected if they acted in good faith, but the Act does not say so explicitly. The safest approach: lend only to persons who can demonstrate they intend to place bets with a licensed operator, and document that.

For holders of securities (e.g., banks that receive a cheque from a debtor who is a gambler), compliance involves due diligence on the source of the debt. If the cheque is given to settle a gambling debt, the holder should verify that the debt arose from prescribed betting, otherwise the cheque may be void. If the cheque is given as security for a loan for lawful gaming, the holder should verify and document the purpose.

For individuals who gamble socially (not with a licensed operator), the Act provides no protection: your wins are unenforceable, but you cannot recover losses paid voluntarily. The only way to have enforceable rights is to use only prescribed operators.

For legal practitioners advising clients on gambling debts, the first step is to classify the bet: is it a prescribed bet under one of the Schedule Acts? If yes, the contract is enforceable under s.5. If no, no proceedings can be maintained. The advice should also consider whether the debt is for winnings (s.4(1)(b)) or a loan (s.6). If a security is involved, determine the consideration. Practitioners should also check the regulations for any prescribed provisions. Finally, note the uncommenced amendment under the TAB (Disposal) Act 2019 and advise on the possibility of future change.