Gaming Machine (Offset Amounts) Regulation 2018

The central concept is "offset amount". The regulation does not define the term itself; it only prescribes which amounts fall within the definition in section 10H(4) of the Gaming Machine Act 2004. The regulation operates as a delegated piece of the principal Act's machinery. There are two limbs:

Paragraph (a) of the definition (covered by section 4 of the regulation) catches fees, charges and other amounts determined under the listed provisions of other Acts. These are not fixed amounts; each reference is to a provision that allows a fee or charge to be determined (usually by the responsible Minister or agency). For example, the Building Act 2004 section 150 allows the Minister to determine fees for building approvals. The regulation picks up whatever fee is in force at the time. Similarly, the Planning Act 2023 section 522 is a general fee-determination provision that covers the specific parts listed in section 4(1)(b)(i)-(xi). The amount payable to vary a concessional lease under section 311 of the Planning Act is a fixed calculation under that Act. The lease variation charge for a nominal rent lease is also calculated under the Planning Act.

Paragraph (b) of the definition (covered by section 5 of the regulation) prescribes the Duties Act 1999 itself. This is a different drafting technique: instead of listing individual provisions of the Duties Act, the entire Act is prescribed. That means all duty payable under that Act (chapters 2 and 3 are specifically referenced in section 4(1)(e),(f) which have expired, but section 5 picks up the Act as a whole for paragraph (b)(viii)). This creates potential overlap: duty was also covered by the now-expired section 4(1)(e),(f). The current effect is that duty payable under the Duties Act remains an offset amount solely through section 5.

Another key concept is the temporary nature of the regulation. It is tied to the life of section 10H of the principal Act. That section was inserted by the Gaming Legislation Amendment Act 2018 and has its own sunset. The regulation automatically expires when that section expires, without the need for further legislative action. This is a standard approach for time-limited tax or offset schemes.

The concept of "prescribed" is important: the regulation uses the word "prescribed" in the sense of "set out in subordinate legislation". The Gaming Machine Act 2004 refers to "offset amount" and leaves the details to regulation. This means the scope of allowable offsets can be changed by amending the regulation without amending the principal Act. The amendment history shows the list has already been updated: the Planning Act references were substituted in 2023, and the Duties Act was added in 2024.

Finally, the regulation has no operative provisions beyond listing amounts. It does not set out how to claim an offset, how to calculate it, what documentation is required, or any limits on the total offset. Those matters are left to the principal Act, its other regulations, or administrative practice.

The regulation directly affects any person who holds a gaming machine licence under the Gaming Machine Act 2004 and is liable for gaming machine tax or other prescribed amounts that can be reduced by an offset. In practice, these are operators of poker machines in the ACT: clubs, hotels, and other licensed venues. The regulation determines which government charges those operators can count as offset amounts, thereby reducing their tax bill or other liability under the principal Act.

Indirectly, the regulation affects the ACT government agencies that collect the fees and charges listed. For example, the Environment, Planning and Sustainable Development Directorate collects fees under the Planning Act 2023 for development approvals, lease variations, and environmental impact assessments. The Access Canberra agency collects fees under the Building Act, Electricity Safety Act, Gas Safety Act, and others. The ACT Revenue Office collects duties under the Duties Act. Because those fees and duties can be used as offsets by gaming machine operators, the agencies' revenue streams are partially fungible with the gaming tax revenue. The regulation effectively creates a cross-subsidy: money paid to one agency can reduce money owed to another.

The regulation also affects businesses and individuals who are not gaming machine operators but who deal with operators. For instance, a developer that builds a club may pay planning fees that the club can later use as an offset. That might make the club more willing to engage in development or to pay those fees. Similarly, a property transaction that attracts duty may be structured differently if the duty can be offset by the operator.

Compliance professionals (accountants, tax advisers, and lawyers) working for gaming operators must track which fees are eligible at any given time. Since the list changes by amendment and contains sunset clauses, they need to monitor the regulation's currency. The regulation imposes no direct obligations on government agencies, but those agencies must be aware that certain payments they receive may generate offset rights for operators.

The regulation also indirectly affects the broader ACT budget. To the extent that operators claim offsets, gaming tax revenue is reduced. The regulation defines the maximum pool of eligible offset amounts. If the government wishes to cap or expand those offsets, it amends this regulation rather than the principal Act, which gives the executive greater control over the fiscal impact.

Finally, the regulation is relevant to any person who pays the prescribed fees or duties to the ACT government and who also happens to be a gaming machine operator. For such a person, the regulation provides a potential financial benefit: the fee or duty they paid can be used to reduce their gaming tax liability. For other persons who do not operate gaming machines, the regulation has no direct effect.

The regulation itself imposes no duties. It is a statutory instrument that confers rights (or entitlements) indirectly through its operation as part of the Gaming Machine Act 2004. The core right it creates is the ability for a gaming machine operator to have a fee, charge, or duty treated as an "offset amount" under section 10H of the principal Act. Without this regulation, those amounts would not be offset amounts, and the operator could not use them to reduce any liability.

The regulation does not specify how the offset is applied, what maximum applies, what records must be kept, or what time limits exist. Those details must be found in the principal Act or other instruments. The regulation only defines the set of eligible charges. Therefore, the key duty for an operator is to ensure that any amount they wish to claim as an offset actually falls within the prescribed list. If the operator pays a fee under a provision that is not listed, that fee cannot be an offset amount. For example, a fee under the Building Act 2004 section 150 is eligible; a fee under a different section of the same Act is not.

The regulation also creates a duty on the part of the government to recognise those amounts as offset amounts. The Gaming Machine Act 2004 section 10H(4) says that "offset amount" means an amount prescribed by regulation. Once prescribed, the principal Act must give effect to that designation. The government cannot refuse to treat a prescribed fee as an offset amount if the operator meets any conditions in the principal Act.

The regulation contains no explicit rights for third parties. Only the gaming machine operator who pays the fee or duty can potentially benefit. The regulation does not allow an operator to assign or transfer offset rights to another person.

There is also a negative right: the regulation does not require the operator to claim the offset. It merely makes it available. The operator may choose not to claim it, or may fail to meet the principal Act's requirements for claiming it.

The expiry provisions impose an implicit duty on operators to be aware of the regulation's lifespan. After 1 April 2028, or if the principal Act's section 10H is repealed earlier, the regulation ceases to have effect, and all rights to claim these offsets vanish. Similarly, paragraphs (e) and (f) of section 4(1) expired on 27 November 2025, so any duty paid under the Duties Act after that date can only be claimed as an offset through section 5 (if that path remains open).

In summary, the regulation creates a conditional right to reduce certain liabilities, but imposes no direct duties. The duties arise from the principal Act and from general tax compliance obligations.

The Gaming Machine (Offset Amounts) Regulation 2018 contains no penalty provisions. It is a purely definitional instrument. Any penalties for misuse of offset amounts would be found in the Gaming Machine Act 2004 or in the general law governing tax evasion and fraud. For example, if an operator fraudulently claimed an offset for a fee that was not paid, or that was paid under a non-prescribed provision, they could be prosecuted under the principal Act's offence provisions. The Gaming Machine Act 2004 includes offences such as making false or misleading statements (likely an offence carrying a maximum of 100 penalty units or imprisonment). The regulation itself does not create an offence for claiming an ineligible offset; the principal Act does that.

Enforcement is carried out by the ACT Gambling and Racing Commission or the ACT Revenue Office, depending on which agency administers the gaming tax or offset scheme. The Commission may audit operators' returns and verify that claimed offsets correspond to actual payments of the prescribed fees. If an operator claims an offset for a fee under section 150 of the Building Act but cannot produce evidence that the fee was paid, the offset may be disallowed and the operator assessed for additional tax plus interest and penalties.

Because the regulation cross-references many other Acts, enforcement also involves those other agencies. For a planning fee under the Planning Act 2023, the Environment, Planning and Sustainable Development Directorate would hold records of payment. Coordination between agencies is necessary to verify claims.

The regulation's temporary nature also creates a risk of inadvertent non-compliance. If an operator claims an offset after the regulation has expired (after 1 April 2028), the claim would be invalid. The operator would be liable for the full amount of gaming tax without the offset, plus potentially penalties for underpayment. There may be a transitional provision in the principal Act, but the regulation itself provides none.

The value of a penalty unit at the republication date is relevant: $160 for an individual, $810 for a corporation. Offences under the principal Act may specify penalties in penalty units. For serious fraud, criminal penalties could apply.

In summary, the regulation imposes no direct penalties, but it is the foundation for determining which offsets are lawful. False claims based on non-prescribed fees or expired provisions could lead to penalties under the principal Act. Operators should maintain clear records linking each claimed offset to a specific payment under a prescribed provision.

The regulation is explicitly made under the Gaming Machine Act 2004, but its content consists entirely of cross-references to other ACT laws. Section 4(1)(a) lists six provisions from six different Acts: the Building Act 2004, Community Title Act 2001, Electricity Safety Act 1971, Gas Safety Act 2000, Unit Titles Act 2001, and Water and Sewerage Act 2000. Section 4(1)(b) lists eleven parts or divisions of the Planning Act 2023 and refers to its fee-setting provision (section 522). Section 4(1)(c) and (d) refer to amounts payable under the Planning Act 2023 for concessional lease variations and nominal rent lease variation charges. Section 4(1)(e) and (f) (now expired) referred to the Duties Act 1999. Section 5 prescribes the Duties Act 1999 itself.

Thus, the regulation ties the gaming machine tax system into the revenue streams of several other ACT regulatory schemes. The fees under those Acts are collected for their own purposes (building safety, planning approvals, electricity safety, etc.), but they also serve as potential offsets against gaming tax. This creates interdependence: if the fee under one of those Acts is changed (increased, decreased, or abolished), it directly affects the potential offset available to gaming operators. Conversely, the existence of the offset may affect how much the government sets those fees: a higher fee may be more palatable if operators can offset it against tax.

The regulation also interacts with the Legislation Act 2001. Section 3 notes that notes are explanatory and not part of the regulation. Section 6 of the regulation uses standard expiry language. The endnotes show that the regulation was amended by the Planning (Consequential Amendments) Act 2023, which updated references from the former Planning and Development Act 2007 to the new Planning Act 2023. This demonstrates how the regulation must be kept aligned with changes in other ACT legislation.

The interaction with the Duties Act 1999 is particularly notable. The regulation originally included duty under chapters 2 and 3 as offset amounts in section 4(1)(e),(f). Those provisions expired on 27 November 2025. However, section 5 (inserted by SL2024-31) now prescribes the entire Duties Act 1999 for paragraph (b)(viii). It appears that the expiry was intended to remove the specific chapter references and replace them with a broader prescription. This avoids the need to list individual chapters. However, the two provisions overlapped for a period, and now only section 5 remains. Practitioners must check whether section 5 fully covers all duty that was previously covered.

The regulation's expiry is tied to section 10H of the Gaming Machine Act 2004. That section itself may interact with other parts of the principal Act, including tax calculation provisions. The regulation does not define those interactions; it is purely a list.

Finally, the regulation has no interaction with Commonwealth laws or the laws of other states, as it is purely an ACT instrument referencing only ACT Acts.

The regulation was originally notified on 19 December 2018 as SL2018-27 and commenced retrospectively on 11 December 2018 (the same day the Gaming Legislation Amendment Act 2018 commenced, which inserted section 10H into the Gaming Machine Act). The commencement section (s 2) was later omitted as a formal amendment under the Legislation Act 2001.

The first major amendment came via the Planning (Consequential Amendments) Act 2023 (A2023-36), schedule 1 part 1.30, notified 29 September 2023 and commenced 27 November 2023. This amendment substituted references in section 4 from the earlier Planning and Development Act 2007 to the new Planning Act 2023. It also updated the list of provisions to reflect the new Act's structure: for example, references to the Territory Plan variation process became references to part 5.2, and references to environmental impact assessment became division 6.3.9. The amendment history notes "amdt 1.159, amdt 1.160" and paragraph renumbering by the republication.

The second amendment was the Gaming Machine (Offset Amounts) Amendment Regulation 2024 (No 1) (SL2024-31), notified 12 September 2024 and commenced 13 September 2024. This inserted a new section 5 prescribing the Duties Act 1999 for paragraph (b)(viii) of the offset amount definition. It also amended section 4 (though the exact amendment is not detailed in the amendment history; the note says "s 4 am ... SL2024-31 s 4", likely to add or modify the fee references). This amendment added the Duties Act as a directly prescribed Act, separate from the specific provisions in section 4(1)(e),(f).

The third amendment was the Gaming Machine (Compulsory Surrender) Amendment Act 2024 (A2024-50), schedule 1 part 1.2, notified 19 September 2024 and commenced 20 September 2024. This inserted a new provision that became section 5 (originally, then renumbered to section 6) dealing with expiry of the regulation. The amendment history shows "ins A2024-50 amdt 1.2" and then "renum as s 6 R4 LA". This added the expiry date tied to section 10H of the principal Act. Prior to that, the regulation had no express expiry provision (though the principal Act did). The republication note indicates that the regulation also had a note stating it expires 1 April 2028.

Additionally, section 4(1)(e) and (f) had their own expiry date of 27 November 2025, as stated in section 4(2). The republication R5 (28 November 2025) reflects that those paragraphs have expired.

The regulation has been republished five times: R1 (19 Dec 2018 original), R2 (27 Nov 2023 consequential amendments), R3 (13 Sep 2024 SL2024-31), R4 (20 Sep 2024 A2024-50), and R5 (28 Nov 2025 for expiry of provisions). This frequent republication indicates the instrument is actively maintained.

The regulation itself has no reported litigation history in the source. It is a subordinate instrument that has been in force only since 2018, and its subject matter (definition of offset amounts) is highly technical. Any litigation would likely arise under the principal Gaming Machine Act 2004 rather than this regulation directly. For example, a dispute about whether a particular fee qualifies as an offset amount would turn on the interpretation of the regulation. If the regulation's cross-references are ambiguous, a court may need to interpret the meaning of "fee determined for a matter under" a specific section.

The regulation's cross-references to other Acts may also generate interpretive litigation. If the Planning Act 2023 is amended and the regulation is not updated, a dispute may arise over whether a fee paid under a renumbered provision is still covered. The courts would apply standard principles of statutory interpretation, possibly including the Interpretation Act 1967 (ACT) or the Legislation Act 2001 on references to amended laws.

Given the regulation's expiry date, there could be litigation about whether an offset claimed before expiry but processed after expiry is valid. The principal Act's transitional provisions would be relevant.

No cases are cited in the source, and a general search would be necessary to identify any. The regulation's anonymity suggests it has not been the subject of judicial review, nor has any taxpayer challenged the Commissioner's decision about an offset amount. However, given that it affects revenue and tax liabilities, the potential for future litigation exists, particularly if an operator is denied a claimed offset.

The regulation is also likely to be considered in administrative appeals to the ACT Civil and Administrative Tribunal (ACAT) regarding gaming tax assessments. ACAT may need to interpret whether a particular fee is within the prescribed list. That would constitute "litigation" in a broad sense, but the source does not mention any such decisions.

In summary, the regulation has no known litigation history, but its interpretation could be tested in future disputes over offsets.

Several traps exist for the unwary:

1. Expiry of section 4(1)(e) and (f). These paragraphs, which covered duty payable under the Duties Act 1999 chapters 2 and 3, expired on 27 November 2025. Any duty paid on or after that date cannot be claimed as an offset under section 4. However, section 5 (prescribing the Duties Act 1999) is still in force. The relationship between the expired paragraphs and section 5 is unclear: section 5 prescribes the entire Duties Act for paragraph (b)(viii) of the definition. It appears intended to replace the expired paragraphs, but careful checking is required to confirm that all duty previously covered is still covered. If an operator relies solely on the expired provisions, they may miss the alternative path.

2. Overall expiry on 1 April 2028. The entire regulation expires on that date. Operators must cease claiming offsets under this regulation after that date, unless the principal Act is amended to extend it. There is no grace period.

3. Cross-reference changes. The regulation lists specific provisions of other Acts. If those Acts are amended and section numbers change, the regulation may become outdated. For example, the transition from the Planning and Development Act 2007 to the Planning Act 2023 required an amendment. If the Building Act 2004 is renumbered, the reference to section 150 may be wrong. Operators should monitor amendments to all referenced Acts.

4. Fee versus charge versus duty. The regulation uses "fees, charges and other amounts" in section 4(1) and "duty" in section 4(1)(e),(f) (expired) and section 5. Not every payment under the listed provisions may qualify. For example, a penalty or late payment fee under the Building Act may not be a "fee determined for a matter". The determination is key: only amounts determined under the specific section count.

5. Overlap and duplication. If an operator pays both a planning fee and a lease variation charge for the same transaction, both may be prescribed, but the operator must ensure they are not double-counting or claiming the same amount twice. The principal Act may have rules against double offsets.

6. Record-keeping. The regulation does not specify what evidence is needed. Operators must keep proof of payment and the basis for the fee. Without a clear audit trail, the offset may be disallowed.

7. Concessional lease removal amount. Section 4(1)(c) refers to an amount payable to vary a concessional lease to remove its concessional status "worked out under the Planning Act 2023, section 311". That amount may be a lump sum payment. Operators should verify they have correctly calculated it.

8. Section 5 versus section 4 expiry. Section 5 was inserted by two instruments almost simultaneously. The amendment history shows a note: "Note for s 5 s 5 also ins A2024-50 amdt 1.2". This suggests potential duplication or confusion at commencement. The renumbering resolved it, but practitioners should check that their version of the regulation accurately reflects the current text.

9. The regulation does not define "offset amount". It only prescribes amounts. If the principal Act is ambiguous about how offsets are applied, the operator may face uncertainty. The regulation provides no guidance on calculation, timing, or limits.

10. No equivalent Commonwealth or interstate provision. This is unique to the ACT. Operators with cross-jurisdictional experience may mistakenly assume similar treatment elsewhere.

Compliance with the Gaming Machine (Offset Amounts) Regulation 2018 is passive in the sense that it does not require filing or reporting directly under this instrument. However, any gaming machine operator who wishes to claim an offset under the Gaming Machine Act 2004 must ensure the offset amount is one prescribed by this regulation. The following practical steps are recommended:

Identify eligible payments. The operator should maintain a list of all fees, charges, and duties paid to the ACT government, and cross-reference each payment against the provisions listed in section 4(1)(a)-(d) and section 5. For each payment, note the specific Act, section, and date of payment. This is critical because many fees (e.g., building fees, planning fees) are routine and may be paid by staff who are unaware of the offset potential.

Verify current version of the regulation. Because the regulation has been amended and contains expiry provisions, operators should always rely on the latest republication from the ACT legislation register. As of the republication date (28 November 2025), section 4(1)(e),(f) are expired. Do not claim offsets under those provisions for payments made after 27 November 2025. Use section 5 for duty under the Duties Act 1999.

Track expiry dates. The regulation expires on 1 April 2028. After that date, no offsets under this regulation are available, unless extended. Plan for the transition: if you have pending fees or duties that you expect to offset, ensure they are paid and claimed before the expiry.

Maintain records. For each offset claimed, keep copies of the fee determination (e.g., notice of assessment for planning fees, receipt for building fee, duty assessment). The regulation does not prescribe record-keeping, but standard tax record-keeping rules under the Gaming Machine Act or the Taxation Administration Act 1999 (ACT) likely apply. Generally, keep records for at least five years.

Coordinate with internal departments. If an operator is a large club or hotel group, the gaming tax return may be prepared by a finance team, while fees are paid by development or property teams. Ensure those teams communicate so that eligible fees are flagged.

Check the principal Act. The regulation is only half the picture. Section 10H of the Gaming Machine Act 2004 sets out how offset amounts are applied, including any limits, order of application, and conditions. Read that section carefully. It may require that the offset amount be paid within a certain period before the tax return, or that it be claimed in a specific form.

Monitor future amendments. The regulation’s history shows it is amended when other ACT laws change. Subscribe to updates from the ACT legislation register. If a referenced Act is amended, check whether the regulation has been updated accordingly.

Seek professional advice. Given the complexity of cross-referencing multiple Acts and the interaction with the principal Act’s tax provisions, an accountant or lawyer experienced in ACT gaming tax should review the operator’s offset claims. Errors can lead to penalties.

Use the offset amount in returns. When completing the gaming machine tax return, include the prescribed offset amounts in the appropriate field, and attach supporting schedules. Keep a reconciliation of all claimed offsets to the underlying payments.