Unlawful Gambling Act 1998

The Act casts a wide net. At the broadest level it affects any person who participates in, organises, facilitates or profits from gambling that falls outside the exceptions in s 7. This includes:

• Players and participants: Section 14 makes it an offence to participate in or bet on an unlawful game (50 penalty units or 12 months imprisonment). Section 17 imposes a lesser but still criminal penalty (20 penalty units) on minors who gamble, while s 16 prohibits adults from gambling with minors or sending them inducements.

• Operators and organisers: Section 12 targets those who organise or conduct unlawful games or take a percentage of wagers. Section 9 prohibits unlicensed bookmaking and restricts even licensed bookmakers to authorised times and places. Section 33 prohibits organising gambling premises.

• Owners, occupiers and operators of premises: Once premises are declared, owners and occupiers commit strict liability-style offences if the premises continue to be used for gambling (ss 35–36), subject to limited defences of reasonable steps or lack of knowledge. Even before declaration, an owner or occupier who knowingly permits use as gambling premises commits an offence under s 31. Section 32 extends liability to any “operator” (defined broadly to include employees, managers or persons conducting business on the premises).

• Service providers and facilitators: Section 11A prohibits making remote-access betting facilities available in public places. Section 19 criminalises mere possession of unlawful gambling aids or documents connected with prohibited gambling.

• Financial stakeholders: Section 11 makes it an offence to hold a financial interest in an illegal bookmaking business knowing it contravenes the Act, although a due-diligence defence is available if the interest is divested promptly upon discovery.

• Police and courts: Senior police officers are given powers to file affidavits (s 20), effect service, publish notices, enter declared premises without warrant (s 41), seize property, and direct assistance with encrypted data (s 43(2)). The Local Court is the central decision-maker for declarations, revocations and submissions about business use (ss 20–28).

• Licensed operators in adjacent regimes: Although the Act does not directly regulate them, licensed bookmakers, totalizator operators, casino operators and gaming-machine licensees are indirectly affected because the exceptions in s 7 are defined by reference to their governing statutes. Any slippage outside those authorisations immediately exposes them to the prohibitions in this Act.

• Landlords and title holders: The requirement to notify the Registrar-General of declarations (s 29) affects conveyancing and mortgagees; a recorded declaration on title can render the property unsaleable or unlettable for business purposes until revoked.

• Minors and those dealing with them: Distinct obligations and defences apply (ss 16–17, 45).

Corporate officers are exposed to accessory liability under s 53, and the state of mind of officers can be attributed to the corporation under s 53A.

Duties are predominantly negative (refrain from prohibited conduct) but some positive obligations exist. Owners and occupiers must not knowingly allow premises to be used as gambling premises (s 31). Once a final declaration is in force, the prohibition on business use is absolute unless the Court orders otherwise (s 26). Police directions to provide assistance with accessing encrypted data must be obeyed (s 43(3)), subject to lawful excuse or incapacity defences. Licensed bookmakers must confine their activities to authorised venues or approved telephone betting (s 9(2)).

Rights include the ability of owners or occupiers to apply for revocation of interim or final declarations (ss 22, 28), to make submissions that business use should not be prohibited (s 25), and to seek cancellation of a notice to quit served by an owner under s 42. A person found on premises has a defence if they prove lawful purpose or excuse (ss 34(2), 37(2)). Defendants may rebut the presumption that a game with more than eight participants is unlawful (s 5(2)), may prove lack of knowledge that an article was an unlawful gambling aid (s 19(2)), or may establish due diligence in divesting a financial interest (s 11(2)). Witnesses who make full disclosure receive immunity from liability (s 50). Minors cannot be imprisoned for the offence of gambling (s 17(2)).

The Act also creates procedural rights: entitlement to personal service or affixation of notices, rights to appear before the Local Court on revocation applications, and the right to challenge evidentiary presumptions.

Penalties are graduated. Many first offences carry 50 penalty units or 12 months imprisonment (or both). Second or subsequent offences frequently rise to 500 penalty units or 2 years (or both). Corporations face higher monetary penalties (e.g. 1,000 penalty units for repeat bookmaking offences under s 9(2)). Daily continuing penalties apply to breach of the business-use prohibition on declared premises (20 penalty units per day under s 26(2)). Offences under s 51(3) are capped at 100 penalty units or 2 years when dealt with summarily.

Enforcement tools are robust. Search warrants under s 40 authorise entry, search of persons, arrest, seizure of gaming equipment, money, documents and computer records, and demands for names. For declared premises, s 41 grants warrantless entry at any time, power to break open doors, seizure and forfeiture to the Crown. Obstruction or giving of alarms is itself an offence (s 39). Unlawful gambling aids and connected documents may be seized on reasonable suspicion (s 43). Conviction triggers automatic forfeiture of seized items (s 44(1)); the court may order further forfeiture where bookmaking was involved (s 44(2)).

The declaration regime is the Act’s distinctive enforcement mechanism. An interim declaration can be obtained ex parte on affidavit (s 20); if not revoked it matures into a final declaration (s 24) that both triggers criminal liability for continued use and appears on land title (s 29). Penalty notices are available for prescribed offences (s 52).

Section 53 imposes accessory liability on directors and managers who aid, abet, induce or are knowingly concerned in corporate offences. Section 55 treats equivalent interstate offences as prior offences for recidivist penalty purposes. Section 54 permits the court to order reimbursement of NSW Police Force storage costs for seized devices.

The Act is deliberately not a standalone code. Section 7 lists nine exceptions that are wholly defined by reference to other statutes: the Totalizator Act 1997, Community Gaming Act 2018, Public Lotteries Act 1996, Gambling (Two-up) Act 1998, Casino Control Act 1992, Gaming Machines Act 2001 and Betting and Racing Act 1998. Any conduct falling inside those authorisations is lawful; anything outside is potentially caught.

Search and seizure powers under ss 40 and 41 are overlaid on the Law Enforcement (Powers and Responsibilities) Act 2002; s 40(3) expressly applies Division 4 of Part 5 of that Act to warrants. Evidentiary and procedural matters interact with the Criminal Procedure Act 1986 (election for indictable offences) and the Fines Act 1996 (penalty notices).

Land-title consequences engage the Real Property Act 1900 and the Conveyancing Act 1919 (s 29). The unenforceability of gambling agreements (s 56) interacts with general contract law. Minor-specific provisions intersect with child-protection legislation. The cheating offence (s 18) expressly does not limit other cheating offences in any other Act.

Amendments have repeatedly updated cross-references: for example, the substitution of references to the Gaming Machines Act 2001 and the insertion of s 11A to deal with remote betting facilities created by the Wagering Legislation Amendment Act 2010.

Because the provided text is a consolidated version, “recent” must be understood relative to the original 1998 enactment. The most significant post-commencement changes visible on the face of the text are:

• Insertion of s 11A in 2010 to prohibit remote-access betting facilities in public places, responding to the proliferation of computers and mobile telephones that could be used for illegal betting in clubs and hotels.

• Amendments to s 8 in 2010 and 2014 to refine the electronic-betting offences, clarify extraterritorial operation, and update terminology around “declared betting events” following reforms to racing regulation.

• Replacement of the corporate-liability provision in 2012 with the current ss 53 and 53A, aligning the Act with the model accessory-liability provisions adopted across New South Wales statute law to overcome difficulties in attributing mens rea to corporations.

• Multiple updates to s 7 to reflect the enactment of the Community Gaming Act 2018 and earlier replacement of the Lotteries and Art Unions Act 1901 with the Public Lotteries Act 1996, ensuring the boundary between lawful and unlawful gambling tracks contemporaneous licensing regimes.

• Amendment of s 6 in 2002 to refine the museum and amusement-device exceptions.

These changes were driven by technological change (internet betting), legislative restructuring of the gambling industry (new licensing Acts), and harmonisation of criminal-liability principles.

The review clause in s 61 (a five-year policy review) has not been updated, indicating that Parliament has preferred piecemeal amendment over wholesale re-enactment.

The source text contains no reported cases; therefore analysis is confined to textual features that have generated or are likely to generate litigation.

The rebuttable presumption in s 5(2) (more than eight persons) shifts the evidential burden and has been criticised for capturing legitimate private card games. The breadth of “unlawful game” in s 5(1)(h) (any game of skill or chance where a non-participant receives a benefit) can arguably catch fantasy sports or poker tournaments with house rake, although the exceptions in s 7 may protect authorised forms.

The declaration regime has been challenged on natural-justice grounds; the requirement to serve notice after an ex-parte interim declaration (s 21) and the right to apply for revocation (s 22) were inserted to mitigate such concerns. The recording of declarations on title (s 29) can have drastic commercial consequences and has produced disputes about whether a registered declaration survives revocation or sale to a bona-fide purchaser.

Evidentiary provisions in s 48 (presumptive proof that premises are gambling premises once any of seven listed features is present) and s 49 (evidentiary effect of allegations about declared betting events) reverse or ease the legal burden and have been the subject of constitutional arguments, although the text itself does not record outcomes.

Section 11A’s prohibition on remote-access facilities in “public places” (defined to include registered clubs and licensed premises) has raised questions about whether a club member using a mobile phone in a bar commits an offence by the provider or by the club itself.

The accessory-liability provision (s 53) and corporate-state-of-mind rule (s 53A) were introduced to overcome earlier judicial narrowing of corporate liability; their practical operation in gambling cases remains untested in the published text.

Most practitioners assume that if premises are not formally declared they are immune from prosecution; ss 31–33 and the evidentiary presumptions in s 48 show this is false—use as gambling premises can be proved by direct evidence or by the s 48 list of physical or behavioural indicators even without a declaration.

The “financial interest” offence in s 11 is not limited to equity holders; an entitlement to any income from the business (including rent calculated as a percentage of turnover) can trigger liability. The due-diligence defence requires both lack of knowledge at acquisition and prompt divestiture—mere resignation as a director has been held insufficient in analogous legislation.

Section 8(3) creates an offence for the bettor only; the bookmaker’s liability is dealt with under s 9. However, s 8(4A) makes the bettor’s offence extraterritorial if the bet is placed from New South Wales, exposing offshore operators’ customers to prosecution.

The presumption in s 5(2) applies in “any proceedings in relation to a game alleged to be an unlawful game referred to in subsection (1)(h)”. Defence counsel frequently overlook that the presumption is limited to paragraph (h) games, not the entire list.

Forfeiture under s 44(2) can extend to money and records not physically seized at the time of the offence if the court is satisfied they were used in connection with bookmaking. Courts have wide discretion once the factual nexus is proved.

Owners who serve a notice to quit under s 42 must be careful: if the occupier successfully applies to the Local Court to cancel the notice, costs may follow. Conversely, an owner who fails to act once aware of illegal use risks prosecution under s 35 once a declaration is in place.

The immunity certificate under s 50 is available only to witnesses examined before a court; it does not protect persons who volunteer information to police outside that process.

Finally, many practitioners forget that “premises” is defined to include vehicles and vessels (s 4). A limousine or yacht fitted with a roulette wheel can be declared gambling premises and seized.

Compliance begins with mapping all gambling-related activities against the s 7 exceptions and the s 5–6 definitions. Licensed operators should maintain detailed records demonstrating that every bet or game falls inside an authority under the Betting and Racing Act 1998, Totalizator Act 1997 or Gaming Machines Act 2001.

Premises owners and managers must implement policies to prevent knowing use as gambling premises. This includes regular inspections, clauses in leases prohibiting unlawful gambling, and prompt eviction procedures under s 42 when illegal activity is suspected. Once an interim declaration is received, immediate legal advice and preparation of a revocation application supported by affidavits denying current use is essential; undertakings offered under s 23(2) or s 28(5) should be realistic and enforceable.

Remote-access facilities must be disabled in any area that meets the broad definition of “public place” in s 11A(3). Clubs and hotels should have IT policies that block known illegal betting sites on public Wi-Fi and signage warning patrons.

Bookmakers must confine telephone and electronic betting to platforms authorised under s 16 of the Betting and Racing Act 1998; any “white-label” or offshore arrangement risks both the bettor (s 8(3)) and the bookmaker (s 9).

Organisations holding financial interests in any betting business should conduct due-diligence audits and maintain documented divestiture procedures to invoke the s 11(2) defence if illegality is later discovered.

For enforcement-facing entities, training on the s 43 data-access direction is required; failure to assist without lawful excuse carries its own penalty. Records of all seizures should be kept to resist later forfeiture applications.

Legal teams should maintain a register of any declared premises within their portfolio and monitor the Gazette and local newspapers for notices under ss 21, 27 and 28. Because declarations are recorded on title, conveyancing due-diligence checklists must include a search of the Register for any s 29 notifications.

Finally, because second or subsequent offences under key sections must be dealt with on indictment unless an election is made (s 51(2)), early advice on plea and election strategy is critical. Corporations should ensure directors and managers understand the personal accessory liability created by s 53 and the attribution rule in s 53A; robust compliance programs and contemporaneous file notes are the only practical mitigation.

Compliance is not static. Because the exceptions in s 7 are ambulatory (they follow changes in the cited licensing Acts), annual audits against the current versions of the Totalizator Act, Gaming Machines Act and Betting and Racing Act are indispensable.