Unlawful Gambling Regulation 2010

The core concept in section 4 is “play money”. Section 4(3) defines it as “something (other than real money) that on its face is stated to represent an amount”. This is a deliberately broad definition: it could include printed vouchers, tokens, chips or even a card marked with a value. The key elements are that (a) it is not real money (that is, not Australian currency or foreign currency in a form that functions as legal tender for everyday transactions) and (b) the amount it represents must be stated on its face - a plain token with no marked value would not qualify. The definition does not extend to digital representations such as on-screen points in an app, because those are not “something” that has a physical face. That limitation may create a gap: if a charitable organisation uses a digital token system, the “play money” definition might not be satisfied, risking non-compliance.

Another concept is “approval”. The regulation does not define it; it relies on the Act’s dictionary. Under the Unlawful Gambling Act 2009, an approval is a written permission given by the Gambling and Racing Commission to a charitable organisation to conduct a game that would otherwise be unlawful gambling. The regulation imposes conditions that attach to that approval. Importantly, the conditions under section 4 are not listed as “must” or “must not” in the condition itself; they are stated as “an approval … is subject to the following conditions”. That means the approval is granted subject to those conditions. If a condition is breached, the approval may become voidable or may cease to have effect, but the Act’s enforcement mechanisms (including possible prosecution for unlawful gambling) would kick in.

The concept of “charitable organisation” and “charitable purpose” are also defined in the Act, not in this regulation. The regulation itself does not limit who qualifies; it merely applies conditions. The concept of “exempt two-up game” in section 5 is likewise defined by the Act (section 22). The regulation adds only the record-keeping condition when a charge is imposed. The concept of “charge, commission or fee” in section 5 is not further defined; it would presumably include any monetary payment required to observe or play, such as an entry fee or a per-game fee, but not a voluntary donation.

A further concept is the distinction between the two categories of conditions in section 4. Subsection (1) deals with the conduct of the game itself - the play money rules. Subsection (2) deals with record-keeping. Both are mandatory. The note to section 4(2) cross-references the Act’s dictionary for definitions of approval, charitable organisation and charitable purpose. That note is explanatory only and not part of the regulation, but it guides interpretation.

In section 5, the concept of “condition” is identical in legal effect: it is a condition imposed on the person conducting the two-up game. The condition is not that the person must keep records generally, but that if they impose a charge, they must keep those specific records. The provision thus creates a contingent duty: no charge, no duty to record.

The regulation imposes direct duties on two distinct classes of persons: charitable organisations that hold an approval under the Act to conduct a game, and natural or legal persons who conduct an exempt two-up game and impose a charge for observation or participation.

For charitable organisations, the regulation adds operational constraints and administrative burdens. Any organisation that wishes to use a game (such as a raffle, bingo, or similar) as a fundraising tool under an approval must comply with the play money rules and the record-keeping obligations. The regulation does not apply to charitable organisations that conduct games without an approval (which would likely be unlawful) or that conduct games under a different authorisation (for example, under the Gaming Machine Act 2004 or a permit for a trade promotion lottery). The pool of affected organisations is limited to those seeking the specific approval under the Unlawful Gambling Act 2009.

For participants in such games, the regulation reduces choice. They cannot use real money to bet and cannot receive real-money prizes. The game is essentially a non-cash event where the only “stakes” are play money that cannot be converted back. Participants’ freedom to wager real money on charitable games is constrained, which may reduce the attractiveness of such events and thus the amount of fundraising possible. That is a direct trade-off: the regulation restricts the commercial appeal of charitable gaming in exchange for ensuring the game is not a disguised gambling operation.

For two-up game operators, the regulation imposes record-keeping duties only if they charge. Two-up games that are purely social (with no fee) are unaffected. However, many two-up events on Anzac Day or at clubs do charge an entry fee or a per-game fee; those operators must now maintain detailed records of all charges received and all payments or benefits given, along with the recipient entity and purpose. That is a compliance cost, particularly for informal or one-off events where record-keeping may be ad hoc.

Indirectly affected parties include the Gambling and Racing Commission, which must issue approvals and may need to monitor compliance with the conditions. The regulation does not impose any duties on the Commission directly, but the Act likely gives it powers to revoke or suspend approvals for non-compliance. Also affected are entities that receive payments or benefits from a two-up game operator (such as a charity or a community group), because the operator must record their name and the purpose; those entities may be asked to provide details or confirmation.

The regulation does not affect the general public or licensed gambling venues that operate under other legislation. Its scope is tightly confined to two specific exceptions to the general prohibition on unlawful gambling in the ACT.

The regulation imposes duties but creates no express rights. The duties are strict and affirmative: persons must comply with the conditions, or the underlying permission (approval or exemption) may be jeopardised. There are no statutory rights conferred on any person by this regulation itself. Any rights (such as the right to conduct a charitable game or an exempt two-up game) arise from the Unlawful Gambling Act 2009, not from the regulation. The regulation only adds conditions that limit the exercise of those rights.

For a charitable organisation holding an approval, the duties under section 4(1) are threefold. First, it must ensure that bets are placed only with play money provided by the organisation. That means no participant can use their own cash, chips from another game, or any other medium. Second, the organisation may give only one allocation of play money per person. If a participant runs out of play money, they cannot obtain a second allocation. That imposes a per-person cap, which prevents the game from becoming a high-volume betting exercise. Third, the organisation must not exchange play money for real money. There is no cash-out, no prize redemption, and no conversion. This effectively means the game has no real-money payout; prizes must be non-monetary or given without reference to the play money. The record-keeping duties under section 4(2) require the organisation to maintain documents showing the specified details. Those records must be kept for an unspecified period (the regulation does not set a retention term, but the parent Act or general law may imply a period). There is no duty to submit those records to anyone unless requested.

For a two-up game operator, the duty under section 5 is contingent: if they impose a charge, commission or fee, they must keep records showing the total amount, the recipient entity and purpose, the amount/value of each payment or benefit, and the date or period of each payment or benefit. This is a record-keeping obligation, not a reporting obligation. The operator does not need to submit the records unless an enforcement agency demands them.

The regulation does not impose any duties on participants. They have no obligation to ensure they only use play money; that duty lies with the organisation. Similarly, participants in two-up games have no duty under this regulation, although the Act may impose duties not to engage in unlawful gambling.

Because the regulation imposes only duties, the key right for affected persons is the right to be treated as complying if they fulfil those duties. Non-compliance does not automatically result in an offence under this regulation (as it creates no penalties), but it may lead to consequences under the Act, such as revocation of an approval or loss of the exemption for two-up games, potentially making the activity unlawful gambling.

The Unlawful Gambling Regulation 2010 does not itself create any criminal offences. Its provisions are phrased as conditions, not as prohibitions backed by a penalty. The applicable penalties arise from the parent Act, the Unlawful Gambling Act 2009. That Act contains offences for conducting unlawful gambling, which would apply if a person fails to comply with a condition and thereby loses the benefit of an approval or exemption.

The republication note on penalties states that at the republication date the value of a penalty unit for an offence against this law (meaning any offence created by the Unlawful Gambling Act 2009, as applied via the regulation) is $150 for an individual and $750 for a corporation. However, the regulation itself does not specify which sections attract a penalty. So enforcement is indirect. A charitable organisation that breaches a condition (for example, by allowing real-money betting) would likely be in breach of the approval conditions. The Act may provide that such conduct renders the game unlawful, and the organisation could then be prosecuted under the Act for conducting unlawful gambling. The maximum penalty for that offence would be found in the Act, not in this regulation. Similarly, a two-up operator who fails to keep records may lose the exemption, making the two-up game unlawful, with the same consequences.

Practical enforcement would be carried out by the Gambling and Racing Commission or by police. They may request records or conduct inspections. If records are not kept, the operator may be unable to prove they complied with the condition, and the evidentiary burden shifts. The regulation does not prescribe an enforcement mechanism; that is left to the Act’s investigatory powers.

The absence of direct penalties in the regulation means that the costs of non-compliance are largely the loss of legal protection and the risk of prosecution under the Act. That is a significant deterrent, but it also creates uncertainty: a minor record-keeping failure may not lead to prosecution, but it could still be used to revoke an approval. The compliance burden is therefore not trivial, especially for small charities or informal two-up games.

There is also the possibility of administrative enforcement: the Commission may suspend or cancel an approval if conditions are breached. That power is found in the Act, not this regulation. The regulation simply states the conditions; the Act provides the consequences.

The regulation sits entirely below the Unlawful Gambling Act 2009. It is made under sections 15(l) and 22(d) of that Act, which empower the Minister to make regulations prescribing conditions. Therefore, the regulation must be read together with the Act. Any term defined in the Act (such as “approval”, “charitable organisation”, “charitable purpose”) applies by incorporation. The regulation does not attempt to redefine those terms; it notes their source.

The regulation interacts with the Legislation Act 2001 in several ways. Section 127 of the Legislation Act provides that notes are explanatory and not part of the regulation, which affects how the note in section 4 is treated. The value of penalty units is set by the Legislation Act (section 133) at the relevant time, as noted in the republication. The amendment history also involves the Legislation Act’s part 11.3 on editorial changes, which allow for formal amendments without changing substance. Section 89(4) of the Legislation Act accounts for the omission of section 2 (commencement) from this republication.

The only known specific amending law is the Revenue Legislation Amendment Act 2017 (A2017-1), which amended section 4. That Act dealt with revenue matters; its connection to gambling regulation is not immediately obvious. It may have been a clean-up or a change to the record-keeping requirements. The regulation thus has a tangential link to revenue law, but no ongoing interaction.

There is no express interaction with other gambling-related legislation in the ACT such as the Gaming Machine Act 2004, the Casino Control Act 2001, or the Racing Act 1999. Those laws cover different forms of gambling, and this regulation only deals with two specific exceptions to the Unlawful Gambling Act. If a charitable organisation holds a licence under another Act, the conditions under this regulation may still apply if they also use the approval mechanism. Overlaps are possible but not addressed in this short instrument.

Commonwealth laws such as the Interactive Gambling Act 2001 may interact if the charitable game or two-up game is conducted online. The regulation does not mention online activities, and the play money definition’s requirement that something be stated “on its face” suggests physical tokens, so digital play money would likely not satisfy the regulation. That could create a gap where an online charitable game using virtual points may not be covered by the approval conditions, potentially making it unlawful under both ACT and Commonwealth law.

The Unlawful Gambling Regulation 2010 was originally notified on the ACT legislation register on 10 March 2010 as SL2010-6. Sections 1 and 2 commenced on the notification date; the remainder (sections 3, 4 and 5) commenced on 22 March 2010, coinciding with the commencement of the Unlawful Gambling Act 2009.

The only substantive amendment to the regulation occurred via the Revenue Legislation Amendment Act 2017 (A2017-1), schedule 1, part 1.13, by amendment 1.132. That amendment modified section 4 (Conditions of approval - Act, s 15(l)). The precise text of the amendment is not set out in this republication, but it took effect on 18 September 2017. The nature of the change is not discernible from the available document. It may have altered the record-keeping requirements, added or removed a condition, or adjusted the definition of play money. Without the amending law itself, the best that can be said is that the conditions for charitable gaming approvals were changed on that date. Practitioners relying on the regulation must ensure they use the version as at 18 September 2017 or later, not an earlier version. The amendment was part of a broader revenue legislation amendment, which suggests it may have been a technical correction rather than a policy shift.

Section 2 of the original regulation (commencement) was omitted by the Legislation Act 2001, section 89(4), which is an editorial change. This omission does not affect the substance. The regulation has otherwise remained unchanged since 2010 apart from that single amendment. There have been no further amendments, substitutions, or repeals as of the republication date.

The endnote on earlier republications shows that the first republication (R1) covered the period from 22 March 2010 to 17 September 2017 (before the 2017 amendment). R2 (the current republication) incorporates the amendment and is effective from 18 September 2017. Anyone researching a matter from before that date should consult R1.

There is no recorded litigation history specific to the Unlawful Gambling Regulation 2010. The regulation is a minor subordinate instrument that has been amended only once and has not been judicially considered in any published ACT court or tribunal decision as at the republication date. This is likely because the regulation does not create independent statutory rights or impose direct penalties; it merely conditions approvals and exemptions that arise under the parent Act. Any legal challenge to a condition would probably be brought under the Unlawful Gambling Act 2009 itself - for example, a judicial review of the Gambling and Racing Commission’s decision to impose or revoke an approval - and the regulation would be considered as part of the statutory framework.

The regulation could be the subject of interpretive litigation if a dispute arises over the meaning of “play money” or the scope of the record-keeping requirements. For instance, a court might need to decide whether a digital gaming token that displays an amount on a screen satisfies the requirement that the value be “stated on its face”. The current definition in section 4(3) uses the phrase “on its face”, which suggests a physical manifestation. That could be a point of contention. However, no such case has been reported.

The absence of litigation does not mean the regulation is unimportant; it may simply mean compliance has been effective or disputes are resolved administratively. The regulation has been in force for over a decade, and the lack of judicial scrutiny suggests that its conditions are relatively straightforward and uncontroversial in practice. However, that could change if the definition of play money is tested in the context of new technology.

Several aspects of the regulation may trap the unwary. First, the definition of “play money” in section 4(3) requires that the thing “on its face is stated to represent an amount”. A plain token, a chip without a denomination, or a digital credit that does not display a monetary amount on a physical surface would not meet this definition. Charitable organisations using electronic point systems or even scratch cards that do not show an explicit amount risk non-compliance. The condition does not allow for any approximation; the amount must be stated on the face.

Second, section 4(1)(b) limits a charitable organisation to giving “only one allocation of play money” to a person. There is no exception for circumstances where a participant loses their play money and wants to continue. This means the game ends for that participant when their initial allocation is exhausted. Organisations cannot offer top-ups, even if the participant pays for them (but note that paying real money for play money would likely contravene the play money rule anyway, because the play money must be given, not sold). The term “allocation” is not defined; an organisation could potentially give a large initial allocation but cannot replenish it.

Third, section 4(1)(c) prohibits exchanging play money for real money. This is absolute. It means prizes cannot be awarded in cash based on play money accumulation. Any prize must be independent of the play money, or the organisation risks breaching the condition. For example, a raffle where participants use play money to enter but the prize is drawn randomly might be acceptable, but a game where the winner gets real money equal to their play money balance would be prohibited.

Fourth, the record-keeping requirements in section 4(2) require the organisation to record “the number of tickets sold to the event at which the game was conducted”. This implies that the game must be held at an event where tickets are sold. If the game is held without a ticket (for example, at a free community fair), the organisation may not be able to comply with this condition, because there is no ticket to count. That could make the approval invalid. The condition assumes a ticketed event, which may not suit all fundraising activities.

Fifth, for two-up games, the condition in section 5 is triggered only if the person “imposes a charge, commission or fee”. A voluntary donation or an entry fee to the venue (separate from the game) may or may not be considered a charge for observing or participating. If an operator accepts a gold coin donation at the door for entry, but the two-up game is free, the condition may not apply. But if that donation is effectively required to access the game, it could be a charge. The line is blurry.

Sixth, the regulation does not specify the retention period for records. Organisations and operators must keep records for as long as the Act’s limitation period for enforcement actions (generally 2 to 6 years) or until the approval expires. There is no guidance, creating uncertainty.

Seventh, the regulation lacks any provision for electronic records. The definition of “play money” seems to require physical tokens. Two-up record-keeping could be done electronically, but the regulation is silent. That may not be a problem, but it is a gap.

Eighth, the note in section 4 reminds readers that definitions are in the Act’s dictionary, but notes are not part of the regulation. A court could theoretically disregard the note, though it would still be persuasive.

Compliance requires distinct steps depending on the activity. For a charitable organisation that has or seeks an approval from the Gambling and Racing Commission to conduct a game:

1. Obtain the approval in writing. Ensure it is current and unexpired.

2. Procure or create “play money” that meets the definition: a physical item (token, voucher, card) with a stated amount on its face. Do not rely on digital representations. Ensure the play money is clearly marked with its value.

3. At the game, give each participant exactly one allocation of play money. Do not give a second allocation even if the participant asks. Do not allow participants to use any other medium (cash, other tokens) to bet. Only the organisation’s play money may be used.

4. Do not exchange play money for real money under any circumstances. Prizes must be awarded separately and not based on a cash conversion of play money. Consider awarding goods, services, or a random draw unrelated to play money totals.

5. Create and maintain records for each approved game. The records must include: (a) the entity (name of the charitable organisation) and the specific charitable purpose for which the game was conducted; (b) the number of tickets sold to the event at which the game was held (if no tickets are sold, seek legal advice as this may be impossible to comply with); (c) a copy of any promotional material used, which must include the minimum percentage of event funds to be given to charity (as required by law) and the Commission’s approval number; (d) the total amount of funds raised by the event (not just the game); (e) the amount actually given to the charitable purpose and the date of that transfer. Keep these records for at least the duration of the approval and any potential enforcement period (recommended 7 years).

6. Ensure that the promotional material used for the event includes the minimum percentage of funds to be given to charity and the approval number. This is a condition, not just a good practice.

For a person conducting an exempt two-up game and imposing a charge, commission or fee:

1. Confirm that the two-up game is otherwise exempt under the Unlawful Gambling Act 2009 section 22 (for example, held on Anzac Day or under certain conditions). The regulation does not grant the exemption; it only adds conditions.

2. Determine whether you are imposing a charge, commission or fee for observing or participating. If yes, proceed to step 3. If no, no record-keeping is required under this regulation.

3. Maintain records showing: (a) the total amount of all charges, commissions or fees received from participants or observers; (b) for each payment or benefit given (including to charities, volunteers, or other recipients), the name of the entity and the purpose of the payment; (c) the amount or value of each payment or benefit; (d) the date when each payment or benefit was given, or if given over a period, the period over which it was given. These records should be accurate and contemporaneous. Keep them for at least 7 years given potential enforcement actions.

4. Do not assume that because the two-up game is exempt, you do not need to comply with this condition. Non-compliance may result in loss of the exemption, making the game unlawful.

In all cases, review the parent Act for any other conditions or obligations not covered by this regulation. Consult the Gambling and Racing Commission if in doubt. The regulation is short, but non-compliance can have serious consequences because it strips legal protection from the underlying activity.