Court of Appeal Clarifies Gambling Licence Transfers
Court of Appeal Clarifies Gambling Licence Transfers
Tuesday 11 March, 2025
The Court of Appeal has recently made important findings around the ability to transfer class 4 venue licences under the Gambling Act 2003 (“the Act”) when businesses relocate. The case concerned Gambling Machine Association of New Zealand Inc v Feed Families Not Pokies Aotearoa Inc (“GMA v FFNP”).
Class 4 venue licences are required to keep slot machines (colloquially known as “pokies”) on the premises. The ability to transfer a venue licence when shifting location is sometimes desirable for businesses. This is because licences allowing the operation of slot machines granted before 17 October 2001 permitted up to 18 machines in a venue. Meanwhile, any new licence granted can only permit up to nine machines per venue. Venue licences are granted in relation to a specific venue, meaning that relocating a business can result in a requirement to apply for a new licence.
The Historic Position
Historically, the ability to transfer venue licences when relocating a business was governed by the Waikiwi decision. That decision concerned a tavern being relocated to a different site in close proximity to the original. The owners sought to have the venue licence transferred along with the business.
The Waikiwi decision resulted in a wide interpretation of what is meant by “venue” under the Act. The Court held that “venue” did not relate to a specific address. The transfer of the venue licence was allowed because the change in location was not considered a change in venue due to:
- the new location being very close to the existing site;
- the tavern’s name, ownership, and management remaining the same; and
- local patrons and the general public regarding the tavern as having retained its venue for all intents and purposes, even if it had moved to a nearby site.
Waikiwi decision challenged
The Act was amended soon after the Waikiwi decison by the Gambling (Gambling Harm Reduction) Amendment Act 2013 (“the Amendment”). Following the Amendment, Courts generally interpreted the new provisions relating to venue and location as being consistent with Waikiwi. This has now been challenged by the recent Court of Appeal decision in GMA v FFNP.
The GMA v FFNP case concerned an appeal from the High Court, which ruled the Amendment meant Waikiwi relocations are no longer possible. The Court of Appeal upheld this ruling. It found that the distinction between “venue” and “location” set out in Waikiwi was untenable under the Amendment.
The Court of Appeal reached this conclusion by analysing the wording of relocation provisions inserted by the Amendment. An example of this was wording which stated the application for a licence needed to include “a description of the venue and its location”. This indicated that the Act treated the words “venue” and “location” as both referring the same physical place.
Additionally, the new provisions explicitly required consent from the territorial authority to relocate. The Court said that circumventing this requirement by applying Waikiwi to relocate the licence would directly undermine the purpose of the Amendment.
Conclusion
This recent decision has important implications for Councils. Prior to this decision, venue licence relocations which met the Waikiwi criteria were treated as exempt from needing Council consent to relocate. With the Waikiwi relocations now no longer possible, a change in the location of a venue licence will now require Council consent, regardless of how close it is to the original site.
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