Scrutiny of Acts and Regulations Committee
Alert Digest No 8 of 2008
The Bill was introduced into the Legislative Assembly on 16 April 2008 by the Hon. Tony Robinson MLA. The Committee considered the Bill on 5 May 2008 and made the following comments in Alert Digest No. 5 of 2008 tabled in the Parliament on 6 May 2008.
Property rights – Removal of entitlement and legitimate expectation to the grant of a licence – Agent or associate of the holder of a licence – Whether a human being
Charter s. 3 defines a ‘person’ to mean a ‘human being’. Charter s. 6(1) provides that ‘only persons have human rights’. Charter s. 20 provides that a person ‘must not be deprived of his or her property other than in accordance with law.’
The Committee notes that clause 26 inserts a new section 11.1.8 into the Gambling Regulation Act 2003 that provides that:
The Committee observes that this clause may remove an existing entitlement or legitimate expectation that a person would obtain a licence. The Committee also observes that the European Court of Human Rights has held that an analogous right to Charter s. 20 in the European Convention for the Protection of Human Rights and Fundamental Freedoms extends to a right not to be deprived of an existing legitimate expectation of a future claim to property (including a licence.)
Whilst the Committee observes that corporations do not have Charter rights, the Committee is concerned that one or more persons who are the subject of new section 11.1.8 (especially para. (c)) may be human beings.
The Committee will seek further information from the Minister as to whether any of the persons who are the subject of new section 11.1.8 are human beings. Pending the Minister’s response, the Committee draws attention to this provision.
I refer to your letter of 7 May 2008 regarding the Gambling Regulation Amendment (Licensing) Bill 2008 (“the Bill”) and, in particular, clause 26 of the Bill and its relevance to the property right recognised by the Charter of Human Rights and Responsibilities (“the Charter”).
“For the avoidance of doubt, a person does not have any entitlement to, or legitimate expectation of, the grant of a wagering and betting licence or ken0 licence only because the person is or was–
(a) the holder of the wagering licence and gaming licence that were issued on 15 August 1994, or
(b) the holder o f a gaming operator's licence; or
(c) an agent or associate of a person described in paragraph (a) or (b).”
No Existing Legitimate Expectations
The Committee has observed that this clause may remove an existing entitlement or legitimate expectation that a person would obtain a licence.
The Government has performed a comprehensive review of the wagering, betting and keno arrangements in Victoria and has decided to establish a licensing regime for the grant of a new wagering and betting licence and the grant of a new keno licence. The new wagering and betting licence will not be attached by legislation to the licence to operate gaming machines. The new keno licence will also not be attached by legislation to a gaming operator's licence.
In the context of establishing new licensing regimes, it is the Government's view that all interested parties should be permitted to apply for the new licences on an equal footing, without being able to rely, as far as possible, on any benefits of having previously held some form of gambling licence under the Gambling Regulation Act 2003.
For this reason, the current holder of the wagering licence and gaining licence and the current holder of a gaining operator's licence should be afforded the same rights as any other interested entities, but need not be afforded any other special rights merely because they currently hold such licences. The licences they hold are not the same licences as the proposed new wagering and betting licence and keno licence that are the subject of the Bill.
Clause 26 does not remove an existing entitlement or legitimate expectation that a person would obtain one of the new licences; it clarifies, for the avoidance of doubt, that an existing entitlement or legitimate expectation does not exist.
Property Rights for a Human Being
You have asked whether, by use of the word “person”, clause 26 of the Bill would deprive a human being from his or her property other than in accordance with law, especially in relation to paragraph (c) of the clause.
The proposed section 4.3A.3(3) in clause 9 of the Bill and proposed section 6A.3.3(3) in clause 18 of the Bill both provide that only a person who is not a natural person (i.e. a human being) may register an interest, and therefore be eligible to be invited to apply for, a wagering and betting licence or a keno licence (“a relevant licence”).
As the entities referred to in paragraphs (a) and (b) of the proposed section 11.1.8 of the Act are corporate entities, the property right for human beings recognised by the Charter does not apply to them.
Similarly, any person to which paragraph (c) of the proposed section 11.1.8 would apply, whether an agent or an associate of the current licensees, may not be a natural person in order to be eligible to register an interest in a relevant licence and hypothetically claim an existing entitlement or legitimate expectation of obtaining a relevant licence. As the entities referred to in paragraph (c) of the proposed section 11.1.8 of the Act must necessarily not be a natural person, the property right for human beings recognised by the Charter does not apply to them.
HON TONY ROBINSON MP
11 June 2008
The Committee thanks the Minister for her response.