Sporting Venues Authorities Act 2008

The Act creates two distinct corporate bodies managing venues across NSW. The State Sporting Venues Authority (SSVA) is a corporation whose day-to-day affairs are managed by the Minister (s 6(1)). Venues NSW is a corporation subject to Ministerial control and direction (s 14) with a Board appointed by the Minister (s 15). Both are NSW Government agencies (s 5, s 13).

“Authority’s land” means, in relation to a sporting venues authority, land vested in or managed by that authority (s 3). “Venues NSW’s land” means land vested in or managed by Venues NSW and includes land described in Schedule 4A (s 3). Schedule 4A divides land into several categories. Scheduled lands (Part 1) comprise the Cricket and Sports Ground at Paddington (11.208 ha), Driver Avenue land (5,851 sq m), and the Army Engineers Depot at Moore Park (3.685 ha). Designated land (Part 2) is a portion of Moore Park described by metes and bounds, approximately 9.832 ha. Controlled land (Part 3) is another portion of Moore Park described by metes and bounds, approximately 3.2 ha. Part 4 lists venues by region: Illawarra Region (lots in deposited plans), Newcastle Region (many lots including Lots 31, 32, 3238-3245 etc), and Parramatta Region (Lot 963 in DP 42643).

The concept of “private subsidiary corporation” is important. A private subsidiary corporation is a private corporation (as defined in the Corporations Act 2001 of the Commonwealth) in which a sporting venues authority has a controlling interest (s 3). Such a corporation is not and does not represent the Crown (s 11(3), s 21(2)). This distinction means that activities carried out through a private subsidiary may not attract Crown immunity or privileges.

Part 4, Division 2A introduces the concept of Crown land management for scheduled lands. The scheduled lands continue as Crown land dedicated for public recreation (s 30AB). Venues NSW is taken to be appointed as Crown land manager for those lands, with modifications including that its appointment cannot be revoked and no other person can be appointed (s 30AC). Venues NSW is taken to be assigned as a category 1 non-council manager. Certain modifications remove the application of various provisions of the Crown Land Management Act 2016, such as Division 2.2, Division 2.4 (except sections 2.12 and 2.14), section 2.21, Division 3.2, sections 3.14-3.16, 3.18, 3.29-3.31, Division 3.6, section 3.45, sections 9.12 and 9.25, and Schedule 5 (s 30AC(2)(g)). If the Minister is not also the Crown land Minister, the Minister can exercise functions of the Crown land Minister under Part 2 of that Act instead, except functions prescribed by regulations (s 30AC(2)(d)).

Land use restrictions are a key concept. Section 30AI provides that despite any other provision of this Act or any other Act, no part of Venues NSW’s land other than controlled land may be used for residential accommodation, and no part other than designated land may be used for tourist and visitor accommodation. “Residential accommodation” means a building or place used predominantly as a place of residence but does not include tourist and visitor accommodation. “Tourist and visitor accommodation” means a building or place providing temporary or short-term accommodation on a commercial basis, including hotel accommodation and serviced apartments. This restriction preserves the intended character of the various land categories.

Advisory committees form another concept group. General advisory committees may be established by Venues NSW to provide advice or enable function exercise (s 21C). Members are honorary and no remuneration is payable (s 21C(3)). Mandatory advisory committees must be established for the Hunter and Wollongong regions within six months of commencement (s 21D). Membership advisory committees are established on commencement day for advice on membership of former SCG and Venues NSW board members (s 21E). The SCG Heritage Trust must be established within six months to advise on preservation and promotion of SCG history (s 21F). A membership advisory committee may be dissolved only after all former members of the relevant dissolved body who were appointed have completed their terms (s 21E(4)).

The concept of “transfer date” in Part 4 Division 1 is defined for land included in Schedule 4 by order under s 24 as the date of publication of the order on the NSW legislation website or a later date specified, and for land included by amendment made by an Act as the date the amendment takes effect (s 22). The Government may amend Schedule 4 by order published on the NSW legislation website to add, alter or omit land descriptions, but only if the land is land of a government agency including vacant Crown land and the appropriate consent has been obtained (s 24). The order can be made despite any requirement of any other Act or law relating to dealing with or disposing of land (s 24(5)).

The concept of “community service obligations” appears in the objects (s 3A(e)) and in Venues NSW’s functions (s 19(1)(l)). The Minister determines these from time to time. This provides a mechanism for ensuring that commercial management does not entirely override public benefit considerations.

The Act directly affects two primary statutory bodies: the State Sporting Venues Authority and Venues NSW. Their boards, executives and staff are governed by its provisions. The Minister responsible for the portfolio is directly affected, having day-to-day control of the SSVA (s 6(1)) and power to direct Venues NSW (s 14), appoint its Board (s 15) and Chief Executive Officer (s 16), and consent to various land dealings (s 26(2), s 28(3), s 35). The Minister also determines community service obligations (s 3A(e), s 19(1)(l)) and can approve development on designated land (s 30AD). The Crown Land Minister under the Crown Land Management Act 2016 may have some of their functions exercised by the Minister under this Act in relation to scheduled lands (s 30AC(2)(d)).

Government agencies are affected because land of a government agency (including vacant Crown land) may be transferred to a sporting venues authority by order under s 24, provided the appropriate consent is obtained (s 24(2)-(3)). This includes local authorities (with their consent) and other state agencies. When land is transferred, no compensation is payable (s 25(1)) and the transfer does not constitute a breach of contract or default (s 25(2)-(3)). This significantly affects the legal position of any government agency that previously held or managed such land.

Private sector entities are affected in several ways. Persons or corporations that contract with the authorities, including lessees, licensees, joint venturers and partners, are subject to the authorities’ statutory powers. The Act permits the authorities to enter into arrangements and to exercise functions through private subsidiary corporations (s 10, s 21A). Private corporations in which the authorities have a controlling interest are private subsidiary corporations (s 3). However, such corporations do not represent the Crown (s 11(3), s 21(2)), which may affect their legal status and potential immunities.

The Newcastle Agricultural, Horticultural, and Industrial Association is expressly given rights under s 34 to use the Showground land for its annual show free of rent or any fee, for a period and at a time agreed with Venues NSW, or determined by the Minister if no agreement. This provision overrides any contrary contract, lease or other arrangement unless the Minister directs otherwise (s 34(3)-(4)).

Former members of dissolved bodies are affected. The 2020 amendments dissolved the Sydney Cricket and Sports Ground Trust, the board of management of existing Venues NSW, and Local Venues Councils (Schedule 5 Part 6 Division 2). Abolished office holders cease to hold office and are not entitled to remuneration or compensation for loss of office (Schedule 5 cl 25(3)). However, they must be invited to become members of membership advisory committees if not appointed to the Board of reconstituted Venues NSW (Schedule 5 cl 25(4)). Those who accept are taken to be appointed for the balance of their former term and are entitled to remuneration determined by the Minister (Schedule 5 cl 25(5)).

Members of the public who attend or use venues are affected by regulations that may govern admission, conduct, parking, consumption of liquor, and removal of persons (s 40). Penalty notices may be issued by rangers (s 38). The Act does not itself create detailed offences but empowers regulation-making. Persons entering into agreements with the authorities should be aware that the Minister has power to determine that an agreement relating to scheduled lands ceases to be binding or is varied to enable work to be carried out (s 30AG). This affects lessees and licensees on scheduled lands.

Rangers appointed under s 37 are individuals affected: they must be provided with an identification card (s 37(3)-(4)) and must produce it on request when exercising functions (s 37(5)). The Chief Executive Officer may delegate appointment functions to a person employed in Venues NSW (s 37(6)).

Electoral matters affect voting SCG Members. Schedule 3 provides for elections of members of the membership advisory committee for former SCG Members. Voting SCG Members are entitled to vote in elections for committee members (Schedule 3 cl 4). The regulations prescribe the class of members who can vote. Voting is voluntary. Organisations that hold multiple memberships get one vote per membership, each exercised by a different authorised person (Schedule 3 cl 4(4)). Candidates must be voting SCG Members nominated by at least six other voting SCG Members (Schedule 3 cl 7). No material supporting candidates may be posted up, exhibited or distributed on scheduled lands, with a maximum penalty of one penalty unit (Schedule 3 cl 8).

The Act imposes a range of duties and confers rights on the sporting venues authorities, the Minister, and certain other persons.

For the State Sporting Venues Authority, the principal duties are to maintain and improve its land (s 9(1)(a)), to make all reasonable attempts to ensure new development accords with best practice environmental and planning standards (s 9(1)(g)), and to ensure proper asset management plans are in place and implemented for the authority’s land (s 9(1)(h)). It also has the duty to establish and manage sporting grounds, sporting facilities, recreational facilities, community facilities, facilities for sporting competitions, training and education, and to permit use of its land for sporting, recreational or community activities (s 9(1)(b)-(d)). It must encourage use and enjoyment of its land by the public and clubs, associations or other bodies where appropriate (s 9(1)(e)). It may do all supplemental, incidental or consequential acts necessary or expedient, including entering into contracts (s 9(3)).

For Venues NSW, similar duties apply: to maintain and improve its land (s 19(1)(b)), establish and manage sporting grounds, events grounds, associated facilities, community facilities, facilities for sporting competitions, training and education (s 19(1)(c)-(e)), permit use of its land for sporting, recreational or community activities (s 19(1)(f)), encourage use and enjoyment by the public (s 19(1)(g)), collaborate with public sector agencies and other bodies to promote commercial use (s 19(1)(h)), facilitate commercial and retail activities (s 19(1)(i)), make all reasonable attempts to ensure new development accords with environmental and planning laws, standards and best practice (s 19(1)(j)), contribute to proposals for design, development and management of neighbouring land (s 19(1)(k)), and meet community service obligations determined by the Minister (s 19(1)(l)). Venues NSW has a duty to provide advice to the Minister on the State’s entertainment and sporting venues management strategy and development of existing or new venues and precincts (s 19(1)(a)).

Both authorities have the right to acquire land. The SSVA may acquire land or any interest in land by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991 (s 29(1)). Venues NSW may acquire land or any interest only by agreement (s 29(2)). Both may acquire property by gift, devise or bequest and agree to carry out conditions (s 27). They may sell, lease, exchange or otherwise dispose of or deal with any land vested in them and grant easements or rights-of-way (s 26(1)). Venues NSW may take such action only with the consent of the Minister (s 26(2)). Property held subject to a condition may be sold, exchanged, given to an institution engaging in sporting, recreational, educational or cultural activities, or disposed of without consideration if of no commercial value (s 28). Venues NSW requires Minister consent for such dealings (s 28(3)).

The Minister has a duty to review the Act after five years from assent (s 43). The review must determine whether the policy objectives remain valid and whether the terms of the Act remain appropriate. A report on the outcome must be tabled in each House within 12 months after the end of the five-year period. The Minister also has duties in relation to advisory committees: to establish advisory committees for the Hunter and Wollongong regions within six months (s 21D), and to establish the SCG Heritage Trust within six months (s 21F).

Board members of Venues NSW have duties to disclose pecuniary interests (Schedule 1 cl 10). A member must disclose a direct or indirect pecuniary interest in a matter being considered or about to be considered at a Board meeting as soon as possible after the relevant facts come to their knowledge. The nature of the interest must be disclosed. Particulars must be recorded in a book kept for the purpose and open for inspection on payment of a fee determined by the Board. After disclosure, the member must not be present during deliberation or take part in any decision on that matter unless the Minister or Board otherwise determines. A member who has an interest may not be present or take part in the Board’s determination on whether that member can participate. A contravention does not invalidate any decision of the Board (Schedule 1 cl 10(7)). This is a standard pecuniary interest duty but with an important saving.

The Chief Executive Officer of Venues NSW has the right to attend and participate in Board discussions unless directed otherwise, but no right to vote (s 16(4)). The CEO is responsible for day-to-day management in accordance with Board policies and general directions (s 16(2)). Acts done by the CEO in the name of or on behalf of Venues NSW are taken to have been done by Venues NSW (s 16(3)). The CEO also has the power to appoint rangers (s 37(1)) and to delegate that function (s 37(6)).

Rangers have the right to exercise functions conferred by the Act or regulations (s 37(2)). They must produce their identification card if requested by a person affected by the exercise of a function (s 37(5)). Authorised officers (police or rangers) may issue penalty notices (s 38). The right to issue penalty notices is conditional on the officer believing a penalty notice offence has been committed.

Members of membership advisory committees are not personally subject to any liability for anything done in good faith and for the purpose of executing functions under the Act; liability instead attaches to the Crown (s 21E(5)-(6)). Similar protection applies to protected persons under Schedule 1 cl 12: the Board, a member of the Board, or a person acting under the direction of the Board is not personally subject to any liability for anything done in good faith and for the purpose of executing functions under the Act; liability instead attaches to the Crown. This protection covers both acts and omissions.

The Act itself does not create many specific offences, but it provides a framework for enforcement through regulations and penalty notices. Section 40(2) provides that a regulation may create an offence punishable by a penalty not exceeding 10 penalty units. As at the time of the Act, a penalty unit under the Crimes (Sentencing Procedure) Act 1999 is $110, so the maximum fine for a regulation offence would be $1,100. The regulations may cover a wide range of matters including care, control and management of land, protection of property, preservation of trees, use of land, admission of persons (including determination of admission charges and membership fees), regulation or prohibition of admission, removal of persons, regulation or prevention of liquor and intoxicants, parking, reservation of portions of land, closing of lands, and private trading (s 40(1)). The regulations may also deal with the admission to memberships that enable access to and use of areas reserved for members (s 40(1)(c1)).

Penalty notices may be issued by an authorised officer (a police officer or a ranger) if it appears that a person has committed a penalty notice offence, which is an offence against the Act or the regulations prescribed as a penalty notice offence by the regulations (s 38(1)-(2)). The Fines Act 1996 applies to penalty notices issued under this section (s 38(3)). That Act allows a person to pay the amount specified and avoid further proceedings. The amount payable under a penalty notice is the amount prescribed for the alleged offence by the regulations, not exceeding the maximum amount of penalty that could be imposed for the offence by a court (s 38(4)). This section does not limit the operation of any other provision relating to proceedings for offences (s 38(5)).

Proceedings for an offence under the Act or regulations may be dealt with summarily before the Local Court (s 39). This means the maximum penalty that can be imposed by the Local Court for a regulation offence is the maximum provided by the regulation, subject to the limit of 10 penalty units (s 40(2)). There is no provision for higher penalties on indictment because the Act does not create any indictable offences.

Schedule 3 creates a specific offence: a person must not post up, exhibit or distribute on the scheduled lands material in support of a candidate’s candidature at an election (Schedule 3 cl 8). The maximum penalty is 1 penalty unit ($110). This is a minor offence but is directly in the Act rather than in regulations.

Enforcement powers are supported by the ranger system. Rangers are appointed by the Chief Executive Officer of Venues NSW (s 37(1)). They have the functions, powers and duties conferred on them by the Act or regulations (s 37(2)). Each ranger must be provided with an identification card signed by the Chief Executive, stating that it is issued under the Act, giving the name of the person, describing the nature of the powers conferred, and stating the date of expiry if any (s 37(3)-(4)). In the course of exercising functions, a ranger must produce the identification card to any person affected who requests it (s 37(5)). The Chief Executive may delegate the function of appointing rangers (but not the power to delegate) to a person employed in Venues NSW (s 37(6)).

The Act also creates civil enforcement consequences for transfers of property. Section 25 provides that no compensation is payable to any person or body in connection with the operation of Part 4 Division 1 (vesting of land in authorities). The operation of that Division is not to be regarded as a breach of contract or confidence, a civil wrong, a breach of any contractual provision prohibiting assignment or transfer, or as giving rise to any remedy or cause for termination of an instrument because of a change in beneficial or legal ownership. It is not to be regarded as an event of default under any contract or other instrument. No attornment to the transferee by a lessee from a transferor is required (s 25(4)). Similar provisions apply for transfers under Part 4 Division 3 (Stadium Australia) and Schedule 5 (savings and transitional transfers). The competition authorisations in s 25A and s 30B provide that conduct authorised or required by the provisions is specifically authorised for the purposes of the Competition and Consumer Act 2010 (Cth) and the Competition Code of NSW, but only to the extent it would otherwise contravene Part IV of the Cth Act or the Code.

Personal liability protections in the Act are a form of enforcement shield. Protected persons (Board members, or persons acting under Board direction) are not personally subject to any liability for anything done in good faith and for the purpose of executing functions under the Act; liability instead attaches to the Crown (Schedule 1 cl 12). This protection extends to members of membership advisory committees (s 21E(5)-(6)). However, this protection does not apply to conduct that is not in good faith. The Act does not specify what constitutes good faith, but it would presumably be interpreted consistently with other NSW legislation.

The Act explicitly addresses its relationship with several other statutes. In relation to Crown land management, the Act provides that scheduled lands continue as Crown land dedicated for public recreation under the Crown Land Management Act 2016 (s 30AB). Venues NSW is taken to be appointed as Crown land manager for scheduled lands under that Act, but with a significant number of modifications (s 30AC). The modifications include that Venues NSW’s appointment cannot be revoked, no other person can be appointed, and Venues NSW is taken to be a category 1 non-council manager. Crucially, certain provisions of the Crown Land Management Act 2016 do not apply to the scheduled lands or Venues NSW, including Division 2.2 (Crown land management principles?), Division 2.4 (except ss 2.12 and 2.14), section 2.21, Division 3.2, sections 3.14-3.16 and 3.18, sections 3.29-3.31, Division 3.6, section 3.45, sections 9.12 and 9.25, and Schedule 5 (s 30AC(2)(g)). The Minister under this Act can exercise some functions of the Crown land Minister under Part 2 of the Crown Land Management Act 2016 instead of the Crown land Minister, except functions prescribed by regulations (s 30AC(2)(d)(i)). This is a significant carve-out from the general Crown land regime, giving the portfolio Minister substantial control.

The Environmental Planning and Assessment Act 1979 and the Local Government Act 1993 are excluded from applying to the approval of development on designated land by the Minister under s 30AD, the carrying out of that approved development by or on behalf of Venues NSW, and the use of that development (s 30AE). This is a temporary exemption: s 30AE defines “excluded laws” as those two Acts and instruments in force under them. However, the exemption ceases to apply to designated land if a State environmental planning policy provision applies to that land, in which case s 30AE stops applying except for development approved before the SEPP took effect or in response to an application made before that day (s 30AF(4)). This creates a mechanism for eventual transition to normal planning controls.

The Land Acquisition (Just Terms Compensation) Act 1991 applies to acquisitions by the State Sporting Venues Authority, which may acquire by compulsory process (s 29(1)). However, Venues NSW may acquire land only by agreement (s 29(2)). For the purposes of the Public Works Act 1912, any acquisition of land under this Act is taken to be an authorised work, and the acquiring authority is taken to be the Constructing Authority (s 29(3)). Sections 34, 35, 36 and 37 of that Act do not apply (s 29(4)), which would otherwise require ministerial consent for certain works.

The Duties Act 1997 is disapplied in two contexts. First, no duty is payable for or in respect of a vesting or transfer under the Act or in accordance with arrangements entered into under the Act, or anything certified by the Minister as having been done in consequence (s 36). Second, the Duties Act 1997 does not apply to any gift, devise or bequest made or to be made to a sporting venues authority (s 27(3)). This removes stamp duty costs from these transactions.

The Competition and Consumer Act 2010 (Cth) and the Competition Code of NSW are engaged through two competition authorisation provisions. Section 25A provides that conduct authorised or required by or under the provisions of Part 4 Division 1 (vesting of land) is specifically authorised for the purposes of those laws, but only to the extent it would otherwise contravene Part IV (restrictive trade practices) of the Cth Act or the Code. Section 30B provides the same for conduct under any prescribed arrangement to which Venues NSW is a party because of the operation of s 30A (Stadium Australia transfer). These provisions grant statutory immunity for what might otherwise be anti-competitive conduct, but only to the extent necessary to avoid contravention.

The Government Sector Employment Act 2013 governs the employment of staff for both authorities. Persons may be employed in the Public Service under that Act to enable the SSVA (s 9(4)) and Venues NSW (s 17) to exercise their functions. Section 47A of the Constitution Act 1902 precludes the authorities from employing staff directly. The note to s 9(4) explains that s 59 of the Government Sector Employment Act 2013 provides that persons employed (or whose services are used) may be referred to as officers, employees, or members of staff of the authority. Section 11 of Schedule 1 provides that the provisions of that Act relating to the employment of Public Service employees do not apply to a non-GSE member of the Board.

The Fair Work Act 2009 (Cth) is expressly preserved. Schedule 5 cl 36 provides that a provision of Division 6 (employees) has no effect to the extent of any inconsistency with the Fair Work Act 2009 of the Commonwealth. This applies to a provision that imposes or continues a term or condition of employment. However, this does not limit the application of the Part in relation to reconstituted Venues NSW if it is declared to be a non-national scheme employer under s 9A of the Industrial Relations Act 1996.

The Act also references the Registered Clubs Act 1976 in relation to the club established under the former Newcastle International Sports Centre Act 1967 (Schedule 5 Part 2 cl 9). The Hunter Region Sporting Venues Authority (now Venues NSW) is taken to be the governing body of the club responsible for management and is taken to have been elected annually by the full members. This overrides the usual requirements for club governance.

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act (s 3 note). The Oaths Act 1900 is referenced for the form of statutory declaration required for candidate information sheets (Schedule 3 cl 12(3)). The Public Works and Procurement Act 1912 is referenced in relation to consultation prior to the Minister approving development on designated land (s 30AD(2)(a)).

The Act has been amended multiple times. The original Act was assented to in 2008. The first set of amendments came through the Public Sector Restructure (Miscellaneous Acts Amendments) Act 2009 (No 56), which amended s 16, s 17, s 22, s 24, and Sch 1, and also repealed s 42. The Statute Law (Miscellaneous Provisions) Act 2009 (No 106) amended s 22 and s 39. In 2010, Sch 1 was further amended by an instrument registered as (2010) No 108 clause 3.

The most significant early amendment was the Sporting Venues Authorities Amendment (Venues NSW) Act 2011 (No 57). This amendment introduced Venues NSW as a new corporate entity, dissolved the Hunter Region Sporting Venues Authority, the Illawarra Venues Authority, and the Parramatta Stadium Trust, and transferred their assets to Venues NSW. It amended the definitions in s 3, replaced Part 3 (which previously dealt with regional authorities), inserted new sections including s 33A (advisory committees) and s 37 (rangers), amended s 3, s 7, s 14, s 21, s 37, s 40, and Sch 1, and inserted new transitional provisions in Sch 5 Part 4.

The Justice Legislation Amendment Act 2014 (No 88) amended s 3, s 9, s 21, and s 37. These were relatively minor amendments.

The Sporting Venues Authorities Amendment Act 2017 (No 7) inserted Part 4 Division 3 dealing with transfer of assets, rights and liabilities relating to Stadium Australia (Stadium Australia Trust, Stadium Australia Management Limited, etc). It added s 30A (vesting order power) and s 30B (competition authorisation), and inserted Sch 5 Part 5 with transitional provisions including preservation of rights of members of Stadium Australia Club Limited. The Statute Law (Miscellaneous Provisions) Act 2017 (No 22) substituted s 38 (penalty notices) with a new version that defines authorised officer as a police officer or a ranger.

The most extensive amendment was the Sporting Venues Authorities Amendment (Venues NSW) Act 2020 (No 29). This was a major reform that reconstituted Venues NSW, replaced Part 3 in its entirety, inserted Part 3A (advisory committees), inserted Part 4 Divisions 2A (Crown land management) and 2B (particular provisions for controlled land, designated land and scheduled lands), inserted s 3A (objects of Act), s 3(1) definition of controlled land, designated land, scheduled lands, Venues NSW’s land, and related definitions. It repealed former Part 5 (ss 31-33) and s 33A. It inserted Schedule 4A (Venues NSW’s land) and substituted Schedules 1, 2, 3 and parts of Schedule 5. It added new Part 6 to Schedule 5 containing extensive savings and transitional provisions consequent on the 2020 amendments. The amendments also added s 25A (competition authorisations for land transfers), s 30AA-30AJ, and new sections 21A, 21B-21F. Many existing sections were amended: s 3, s 3A (new), s 7, s 9, s 10, s 11, s 12-21 (replaced), s 26, s 28, s 29, s 30, s 34, s 37, s 40.

Most recently, the Statute Law (Miscellaneous Provisions) Act 2024 (No 35) made a minor amendment to Schedule 1.

The full list of amendment Acts can be found from the amendment notes throughout the legislation. Note that the Act has not been reviewed under s 43 (which requires review after 5 years from assent) but that has been overtaken by the 2020 amendments.

The Act itself does not cite any court cases or litigation. No specific proceedings are mentioned in the text, and the Act’s standard savings and transitional provisions are designed to minimise litigation risks. For example, s 25 provides that the operation of Part 4 Division 1 (land vesting) is not to be regarded as a breach of contract, confidence, civil wrong, or event of default, and no compensation is payable. Schedule 5 gives similar protections for transfers under that Schedule. Clause 28 of Schedule 5 Part 6 Division 4 is to the same effect. These provisions are clearly intended to prevent claims based on contractual or property law grounds when land is compulsorily transferred between government entities.

The competition authorisations in s 25A and s 30B are noteworthy. They authorise conduct that might otherwise contravene Part IV of the Competition and Consumer Act 2010 (Cth) or the Competition Code of NSW. This would come into play if a party alleged that the transfer of land or the arrangements arising from a Stadium Australia vesting order gave rise to anti-competitive conduct such as misuse of market power or exclusionary provisions. The statutory authorisation would provide a complete defence. However, the authorisation is limited to conduct that would otherwise contravene Part IV, and it does not authorise other unlawful conduct.

The personal liability protections in Schedule 1 cl 12 and s 21E(5) could be litigated if a third party sought to hold a Board member or advisory committee member personally liable for actions taken under the Act. The protections are limited to acts done in good faith and for the purpose of executing functions under the Act. If a person acts in bad faith or outside their functions, the protection would not apply. No cases are reported in the Act, but the provision is similar to standard NSW statutory office-holder protections.

The Act’s election provisions in Schedule 3 could be the subject of legal challenge. Clause 20 gives the Returning Officer final determination of formality or informality of ballot papers. Clause 23 provides that an election is not invalid merely because a voting SCG Member did not receive a voting pack or the Returning Officer did not receive a ballot paper sent by prepaid envelope before polling day. These provisions are designed to limit grounds for challenging election results. A challenge based on non-compliance with the strict terms of Schedule 3 would have to overcome these validating provisions.

The provisions allowing the Minister to vary or determine that an agreement relating to scheduled lands ceases to be binding (s 30AG) could be challenged as an acquisition of property other than on just terms, but s 25 provides that no compensation is payable. A court would need to consider whether this amounts to an acquisition within the meaning of s 51(xxxi) of the Commonwealth Constitution or s 20 of the NSW Constitution Act 1902. The Act does not address this point.

In practice, litigation under this Act has likely been minimal given the public sector nature of the parties and the clear legislative intention to facilitate transfers and management without court intervention. The Act does not confer any private right of action, so enforcement is primarily through regulatory means and penalty notices.

Several provisions in the Act are potential traps for practitioners and parties dealing with the authorities.

First, no compensation is payable for any land transfer under Part 4 Division 1 (s 25(1)). This applies even if the land was previously vested in a government agency with valuable improvements. The transfer is not a breach of contract, confidence, civil wrong, or event of default. This means a government agency whose land is transferred cannot claim compensation from the authority. The same rule applies to transfers under Schedule 5 (Schedule 5 cl 28). Any party contracting with a government agency that might be subject to transfer should be aware that the transfer can occur without compensation and without triggering contractual termination rights.

Second, the Minister has sweeping powers. The Minister has day-to-day management of the State Sporting Venues Authority (s 6(1)) and can direct Venues NSW (s 14). The Minister can consent to land dealings (s 26(2), s 28(3)), approve development on designated land (s 30AD), and determine that an agreement relating to scheduled lands ceases to be binding or is varied (s 30AG). Any agreement with Venues NSW over scheduled lands can be unilaterally altered by the Minister after receiving a report from Venues NSW recommending the alteration (s 30AG(2)). Notice must be given to parties in writing (s 30AG(3)). The agreement ceases to have effect or is varied from the date specified in the notice (s 30AG(4)). No compensation is payable under that provision (the Act does not state compensation in s 30AG). This is a significant risk for lessees and licensees on scheduled lands.

Third, the land use restrictions in s 30AI are absolute. No part of Venues NSW’s land other than controlled land may be used for residential accommodation. No part other than designated land may be used for tourist and visitor accommodation. This applies despite any other provision of this Act or any other Act or any instrument made under any Act. This means that even if a local environmental plan or development consent would permit such uses, they are prohibited unless the land is within the correct category. Controlled land is land described in Schedule 4A Part 3 (a 3.2 ha portion of Moore Park). Designated land is described in Schedule 4A Part 2 (a 9.832 ha portion of Moore Park). All other land in Schedule 4A (including the Cricket Ground, Driver Avenue land, Army Engineers Depot, and the various regional venue lots) cannot be used for either residential or tourist accommodation. Anyone proposing a development on Venues NSW’s land must first check which category the land falls into.

Fourth, private subsidiary corporations do not represent the Crown (s 11(3), s 21(2)). This means that activities conducted through a private subsidiary are not covered by Crown immunity or privileges. The subsidiary may be subject to the same laws as any other private corporation, including the Corporations Act 2001, taxation, and competition law. However, the Crown may still be liable for the subsidiary’s actions in some circumstances. Practitioners should verify the exact legal status of any entity with which they contract.

Fifth, the advisory committee provisions contain traps. General advisory committee members are honorary and no remuneration is payable (s 21C(3)). However, membership advisory committee members who were former members of dissolved bodies may be entitled to remuneration and allowances as determined by the Minister (Schedule 5 cl 25(5)(b)). This distinction could be overlooked. Also, membership advisory committees can only be dissolved after all former members of the dissolved body who were appointed have completed their terms (s 21E(4)). This could mean a committee continues for many years even if no longer needed.

Sixth, the election provisions in Schedule 3 are detailed and contain several deadlines and requirements. Candidates need at least six nominators who are voting SCG Members (Schedule 3 cl 7(1)(f)). No campaign material may be displayed on scheduled lands (cl 8), with a penalty of 1 penalty unit. Electronic voting procedures require the website to provide a warning message if there are errors (cl 16). The Returning Officer’s determination of formality is final (cl 20(4), cl 22(3)). These provisions are designed to be self-contained and to limit challenges.

Seventh, the Act has a strong anti-avoidance provision for competition law. Sections 25A and 30B provide that conduct authorised or required by the provisions is specifically authorised for the purposes of the Competition and Consumer Act 2010 (Cth) and the Competition Code of NSW, but only to the extent it would otherwise contravene Part IV. This means that if conduct goes beyond what is necessary to give effect to the provisions, it may still be caught by competition law. The onus would be on the authority to show that the conduct was within the scope of the authorisation.

Eighth, the Act provides that no duty under the Duties Act 1997 is chargeable for vestings or transfers under the Act (s 36) or for gifts to authorities (s 27(3)). However, this only applies to the stated matters. Other transactions that are not expressly exempted may be dutiable. For example, leases and licences granted by the authority to third parties would generally be subject to duty unless another exemption applies.

Ninth, employees transferred to reconstituted Venues NSW under the 2020 amendments retain their conditions of employment (Schedule 5 cl 35). Continuity of service is preserved. However, the Act is subject to the Fair Work Act 2009 (Cth) to the extent of any inconsistency (Schedule 5 cl 36). This means that if a condition of employment is inconsistent with a Commonwealth workplace law, the Commonwealth law prevails. Practitioners should verify whether the employee is covered by a modern award or enterprise agreement.

Tenth, the Minister may, by notice in writing, confirm a transfer of particular assets, rights or liabilities, and such a notice is conclusive evidence of that transfer (Schedule 5 cl 32). This means that a party who disputes a transfer must challenge it before the notice is given, or else the notice is conclusive and cannot be challenged in court. A similar provision appears in Schedule 5 cl 6 for earlier transfers.

Compliance with the Sporting Venues Authorities Act 2008 primarily falls on the sporting venues authorities themselves, their boards and staff, and the Minister. Third parties dealing with the authorities should take steps to protect their interests.

For the State Sporting Venues Authority and Venues NSW, compliance means exercising functions strictly within the scope set out in ss 9 and 19 respectively. The authorities must maintain proper asset management plans (s 9(1)(h)) and make reasonable attempts to ensure new development accords with best practice environmental and planning standards (s 9(1)(g), s 19(1)(j)). Venues NSW must meet the community service obligations determined by the Minister (s 19(1)(l)). Both authorities must ensure that any land dealings receive the required consents. Venues NSW must obtain the Minister’s consent before selling, leasing, exchanging or otherwise disposing of land (s 26(2)). The Minister’s consent is also required before Venues NSW can sell, exchange, give or dispose of property held subject to a condition under s 28 (s 28(3)). Any consent can be subject to conditions and may be withdrawn (s 35). The authorities should therefore document all consents in writing and comply with any conditions.

In relation to scheduled lands, Venues NSW must comply with its obligations as Crown land manager under the Crown Land Management Act 2016, subject to the modifications in s 30AC. It must ensure the lands continue to be used for the purposes of public recreation and otherwise in accordance with any State environmental planning policy that permits additional uses (s 30AF). Any proposal to vary or end an agreement relating to scheduled lands must be preceded by a report from Venues NSW recommending the alteration (s 30AG(2)). The authority should ensure that any agreements it enters into over scheduled lands are reviewed with awareness that the Minister has power to alter or end them.

For development on designated land, compliance with s 30AD is required. The Minister must approve proposals for carrying out development, and the approval must certify that the Minister has consulted the Ministers administering the Public Works and Procurement Act 1912 and the Environmental Planning and Assessment Act 1979. This approval exempts the development from the operation of those Acts and the Local Government Act 1993 (s 30AE). However, this exemption is temporary and ceases to apply if a State environmental planning policy provision applies to the land (s 30AF(4)). The authority should keep track of when the exemption ends and transition to normal planning processes.

Venues NSW must comply with the mandatory advisory committee requirements. It must establish advisory committees for the Hunter and Wollongong regions within six months of the commencement of Part 3A (s 21D). It must establish the SCG Heritage Trust within the same period (s 21F). The membership advisory committees established under s 21E must be maintained until all former members of the dissolved bodies have completed their terms. Venues NSW must ensure invitations are sent to all relevant former members (s 21E(2)).

The Board of Venues NSW must comply with the pecuniary interest disclosure requirements in Schedule 1 cl 10. A book of disclosures must be kept and open for inspection on payment of a fee determined by the Board. Any Board member who has an interest in a matter must not be present or vote on that matter unless the Minister or Board otherwise determines (cl 10(5)). The Board should also ensure that meetings are properly conducted with quorum being a majority of members (Schedule 1 cl 14), and that decisions are minuted. The Chairperson has a casting vote if there is an equality of votes (Schedule 1 cl 16(2)).

The Chief Executive Officer of Venues NSW must ensure that rangers appointed under s 37 are provided with proper identification cards that meet the requirements of s 37(4). The CEO may delegate the appointment function to a person employed in Venues NSW (s 37(6)). Rangers must produce their ID on request when exercising functions (s 37(5)). Penalty notices must be issued in accordance with the Fines Act 1996, with the amount set by regulations.

For third parties entering into contracts, leases, licences or joint ventures with the authorities, due diligence is important. They should verify that the authority has the power to enter into the arrangement (ss 9, 19, 26, 27, 28). They should check whether the land is scheduled land, designated land, controlled land, or other land, because this affects the risk of Ministerial variation of agreements (s 30AG) and the use restrictions (s 30AI). They should also confirm whether the arrangement requires Ministerial consent. If the arrangement involves a private subsidiary corporation (s 11, s 21), they should be aware that the subsidiary does not represent the Crown and may not have the same immunities.

For members of the public using venues, compliance is simple: follow the regulations made under s 40. The regulations may cover admission fees, conduct, parking, liquor, and removal. Rangers may issue penalty notices for breaches. Members of the public should also be aware of the restrictions on residential and tourist accommodation.

For former members of dissolved trusts who are invited to join membership advisory committees, they should respond promptly to accept the invitation. Under Schedule 5 cl 25(5), those who accept are taken to be appointed for the balance of their former term and may be entitled to remuneration determined by the Minister. They should note the personal liability protection in s 21E(5) which only applies to acts in good faith.

For the Minister, compliance involves exercising powers in accordance with the Act, including giving consent in writing, determining community service obligations, and completing the statutory review under s 43 within the required timeframe (5 years from assent, though the review was overtaken by the 2020 amendments). The Minister should also ensure that advisory committees are properly established within the statutory timeframes.

Overall, compliance with this Act is largely about ensuring that the authorities stay within their statutory functions and that all necessary consents and approvals are obtained before significant transactions. The Act gives the authorities broad commercial freedom but subjects them to Ministerial oversight and specific land use controls.