Thursday, 9 June 2022
Bills
Casino and Liquor Legislation Amendment Bill 2022
Casino and Liquor Legislation Amendment Bill 2022
Introduction and first reading
The PRESIDENT (18:09): I have a message from the Assembly:
The Legislative Assembly presents for the agreement of the Legislative Council ‘A Bill for an Act to amend the Casino Control Act 1991, the Gambling Regulation Act 2003, the Liquor Control Reform Act 1998, the Victorian Gambling and Casino Control Commission Act 2011 and other Acts in relation to casino regulation, to provide further for the Victorian Gambling and Casino Control Commission, to establish the Victorian Liquor Commission and for other purposes’.
That the bill be now read a first time.
Motion agreed to.
Read first time.
Mr LEANE: I move, by leave:
That the second reading be taken forthwith.
Motion agreed to.
Statement of compatibility
Mr LEANE (Eastern Metropolitan—Minister for Local Government, Minister for Suburban Development, Minister for Veterans) (18:10): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:
In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the ‘Charter’), I make this Statement of Compatibility with respect to the Casino and Liquor Legislation Amendment Bill 2022.
In my opinion, the Casino and Liquor Legislation Amendment Bill 2022, as introduced to the Legislative Council, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.
Overview
The Bill amends the Victorian Gambling and Casino Control Commission Act 2011 (VGCCC Act), Casino Control Act 1991 (CCA), Gambling Regulation Act 2003 (GRA) and the Liquor Control Reform Act 1998 (LCRA) to fully establish the Victorian Gambling and Casino Control Commission (VGCCC) and the Victorian Liquor Commission (VLC). It also implements recommendations of the Royal Commission into the Casino Operator and Licence (Royal Commission) and the Government’s Independent Policy Review of Casino Regulation.
Human Rights Issues
The human rights protected by the Charter that are relevant to the Bill are the right to:
• protection from torture and cruel, inhuman or degrading treatment (section 10);
• privacy and reputation (section 13);
• a fair hearing (section 24); and
• certain protections in criminal proceedings (section 25).
Section 10—Protection from torture and cruel, inhuman or degrading treatment
Section 10 of the Charter states that a person must not be treated or punished in a cruel, inhuman or degrading way. Amendments that provide new powers or increase existing powers for police or inspectors may engage this right.
Casino and gambling inspectors
New section 107 of the CCA at clause 8 of the Bill extends the existing powers of casino and gambling inspectors to require them to report to the regulator any observations they make of money laundering, loan sharking or the sale or supply of illicit drugs at the Melbourne casino. Under new section 107(2), the VGCCC must, in turn, refer these observations to the appropriate law enforcement agencies. While the amendments may engage the rights protected by section 10, they fall outside the meaning of ‘cruel, inhuman or degrading treatment’. This increase in inspectors’ powers is a reasonable and necessary response to the Royal Commission’s finding that money laundering and other criminal financial activity were regularly occurring at Crown Melbourne. The inspectors will be required to report observations of reportable conduct to the regulator, not to directly intervene where reportable conduct occurs. It is worth noting that these powers are further safeguarded by existing provisions in the VGCCC Act which require inspectors to be of good reputation, with regard to character, honesty and integrity and to undergo criminal records and probity checks before they can be appointed as an inspector.
Liquor inspectors
New section 172ZA of the LCRA in clause 22 of the Bill provides for the appointment of liquor inspectors and new section 172ZC empowers them to perform their functions, including bringing proceedings for offences against liquor legislation. While these provisions may engage section 10 of the Charter, they do not come under the definition of torture and cruel, inhuman or degrading treatment.
Inspector appointments will be limited under new section 172ZA to people who are competent and demonstrate good character, honesty and integrity. Further, new section 172ZB provides for persons being considered for appointment as an inspector to undergo a criminal records check before appointment. Accordingly, these amendments do not limit the right to protection under section 10.
Section 13—Privacy and reputation
Section 13 of the Charter provides that every person has a right to freedom from unlawful or arbitrary interference with their privacy. This freedom may be subject to reasonable limitations under section 7 of the Charter, provided the limitations are clearly defined in law.
Casino and gambling inspectors
New section 108 of the CCA in clause 9 of the Bill engages the right to privacy by giving inspectors the power to access and use surveillance equipment in a casino. This would, on the face of it, interfere with the privacy of casino patrons and personnel. However, this interference is neither unlawful nor arbitrary.
New section 108(2) limits these powers to where an inspector is carrying out functions under casino or gaming legislation and where there is a reasonable suspicion of reportable conduct (which includes loan sharking, money laundering and supplying illicit drugs).
Further, safeguards are provided at new section 108(2)(c) which requires the inspector to obtain the written consent of the regulator before accessing surveillance equipment. These amendments have been introduced to address widespread criminal activity at the casino which were in part due to a failure of the casino to appropriately use its surveillance capabilities. The amendments constitute a reasonable limit on the right to privacy.
Establishing the Victorian Liquor Commission
The new liquor regulator provisions include disclosure requirements that engage the right to privacy.
New section 172P of the LCRA in clause 22 of the Bill compels a commissioner and the Chairperson of the Commission to disclose any interest in a matter being considered by the Commission. Subsections (3) and (4) require the Commission to make guidelines specifying the types of interests that must be disclosed.
New section 172ZB requires a potential liquor inspector to have their photograph, fingerprints and palm prints taken and provided to both the regulator and the police. New subsections (4) and (5) safeguards inspectors’ personal information, by mandating that the Commission keeps it no longer than necessary, and destroys their photographs, fingerprints and palm prints within six months.
While these amendments may engage the Charter right to privacy, they are neither unlawful nor arbitrary. Rather, they are included to prevent conflicts of interest arising in Commission decisions and protect the integrity of the liquor inspector appointments process.
Section 24—Fair hearing
Section 24 of the Charter provides the right to a fair and public hearing. Under this right, parties to a civil proceeding are entitled to be heard by a competent, independent and impartial court or tribunal. This right may be subject to reasonable limits under section 7 of the Charter where the limits are demonstrably justified in a free and democratic society.
New Part 9A of the LCRA in clause 22 of the Bill establishes a new liquor regulator, the Victorian Liquor Commission. An amendment which creates a new court or tribunal is likely to engage the right to a fair hearing. The Commission will have powers to make licensing decisions, conduct inquiries and investigations, take disciplinary action against licensees and permit holders and conduct an internal review process where licensing decisions are appealed.
New section 172E of Part 9A provides the new Commission with the powers necessary to perform its functions. Other sections promote the right to a fair hearing by providing that:
• the Commission is bound by the rules of natural justice (section 172W) and that specified inquiries be heard in public (section 172Z); and
• Commissioners must have certain skills and experience, including legal qualifications and experience in the health sector (section 172G).
New section 172V of Part 9A will provide the Minister with a power to issue directions to the Commission. However, this power will be limited to directions relating to the Commission’s objectives and functions, and will exclude decisions and other operational matters under the LCRA. In this way, the Commission’s independence is preserved.
Section 25—Rights in criminal proceedings
The Charter provides:
• a right to be presumed innocent until found guilty (subsection 25(1)); and
• that a person charged with a criminal offence is entitled to certain guarantees outlined in the Charter right (subsection 25(2)).
New section 108 of the CCA at clause 9 of the Bill introduces two new offences for refusing an inspector access to security and surveillance equipment, books and records and failing to assist an inspector gain access to the security and surveillance equipment.
These offences will include the officer in charge of a casino and any officer, employee or agent. They support the new powers giving inspectors increased access to the casino. Clause 9 does not breach the Charter as the offences do not reverse the onus of proof or place the evidential burden on the accused. Even if this offence was to engage the Charter right, it would be justifiable on the basis that it is a necessary and proportionate response to the casino operator’s systemic failure to cooperate with the regulator. The offences will ensure that inspectors are able to effectively address the risks of harm in the casino.
For the reasons set out above, I consider that the Casino and Liquor Legislation Amendment Bill 2022 is consistent with the Charter of Human Rights.
Hon Shaun Leane MP
Minister for Local Government
Minister for Suburban Development
Minister for Veterans
Second reading
That the second-reading speech be incorporated into Hansard.
Motion agreed to.
Mr LEANE: I move:
That the bill be now read a second time.
Incorporated speech as follows:
The Casino and Liquor Legislation Amendment Bill 2022 (the Bill) marks the next stage in the Victorian Government’s response to the Royal Commission into the Casino Operator and Licence (the Royal Commission) and the overhaul of gambling regulation. The Royal Commission revealed widespread misconduct on the part of the casino operator, including persistent efforts to obstruct the regulator.
When the Government tabled its response to the Royal Commission last October it committed strengthen oversight of the casino to prevent the kind of misconduct that had been documented in the Royal Commission. It immediately introduced the first tranche of reforms with the Casino and Gambling Legislation Amendment Act 2021. These laws went beyond the Royal Commission’s recommendations by providing for automatic cancellation of the licence should Crown fail to become suitable as well as increasing the maximum fine for disciplinary action under the Casino Control Act 1991 (CCA) to $100 million. This legislation also established the Victorian Gambling and Casino Control Commission (VGCCC) and gave it the powers required to hold the casino operator to account.
The new VGCCC was established to be a stand-alone gambling regulator, with a dedicated casino regulation division focused on holding Melbourne’s casino operator to account. The VGCCC, alongside the special manager and the acquittal of the royal commission recommendations, will result in the most thorough set of regulation and oversight of the casino in the state’s history.
Since it commenced in January this year the VGCCC, led by inaugural Chair and CEO, Fran Thorn and Annette Kimmitt respectively, has initiated disciplinary action against the Casino for conduct uncovered by the Royal Commission. The VGCCC is also protecting Victorians from serious financial crimes, having signed a new Memorandum of Understanding with federal anti-money laundering body AUSTRAC to improve coordination across agencies.
I now turn to the provisions of the Bill before the House, which will ensure the VGCCC has the powers and governance model it needs to continue this critical work.
The VGCCC was established by this government on 1 January 2022 in the first tranche of legislation following the Royal Commission into the Casino Operator and Licence. This Bill will complete the VGCCC’s transition, providing it with further functions and powers required to effectively regulate the casino. It will also separate liquor regulation from the casino and gambling regulator, enabling the VGCCC to focus on the casino and the gambling industry more broadly.
The Bill will ensure that minimising gambling-related harm is part of the core business of the VGCCC. The legislated functions and objectives of the VGCCC will be amended to clarify its role in minimising harm from gambling and enhance its ability to regulate gambling providers. The Royal Commission highlighted the significant harms caused by gambling. The Bill will insert these objectives into the VGCCC Act with a particular emphasis on harm minimisation. It will also expand the regulator’s existing education function to include educating the public about its regulatory practices and requirements, as well as delivering activities which minimise gambling harm. By embedding harm minimisation in the core functions and objectives of the VGCCC, this Bill will ensure that it shapes every decision being made by the regulator and protect Victorians from gambling-related harm.
In response to the Royal Commission, the Bill will also confer new powers on casino inspectors and expand their role to include reporting certain activities that they observe within the Melbourne casino. The Royal Commission identified consistent failures on the part of the casino operator to use its surveillance equipment to detect money laundering and other crime. To address this, the VGCCC inspectors will be given further access to the casino, including unfettered access to all security and surveillance equipment, as well as books and records, wherever they are located. Penalties will be introduced for interfering with an inspector’s performance of their functions. Where inspectors observe money laundering, loan sharking, or the sale or supply of illicit drugs, they will be required to report this to the VGCCC which, in turn, will be required to refer the reports to the relevant law enforcement authority or authorities. These measures will ensure that inspectors have the powers they need to do their job and support the VGCCC in safeguarding the casino to be free from criminal influence.
Further to this, the Bill will specify the key skills required by VGCCC Commissioners while retaining flexibility in making appointments. It will provide that the Commissioners must have, as far as practicable, a mix of regulatory experience, financial acumen and legal qualifications. At the same time, the Minister will be able to assess an applicant for Commissioner in light of the skills and experience needed by the VGCCC’s board. The Bill also provides for limits on which functions Commissioners may delegate to staff to ensure decisions are being made at the appropriate level.
The Bill will allow the Minister to provide high level directions to the VGCCC to ensure the regulator’s overarching priorities are consistent with the Government’s. This new direction power will allow the Minister to issue written directions on matters of general application, relating to the VGCCC’s objectives or functions. To preserve the independence of the regulator, the ministerial powers expressly exclude making directions on any specific regulatory functions of the VGCCC. In the interests of public transparency, ministerial directions, including a statement of reasons, will be published in the Victorian Government Gazette.
New provisions around disciplinary proceedings will give the regulator additional tools to regulate the casino. The VGCCC will be able to accept a written undertaking from a casino operator, following a breach or potential breach of casino or gambling legislation. If the casino operator breaches that undertaking, a court may direct them to comply. The breach of an undertaking will also become a ground for disciplinary action under the CCA.
Further to this, the grounds for disciplinary action will be expanded to include a single breach of the Responsible Gambling Code of Conduct (Code of Conduct) by the casino operator, where previously the law required multiple breaches. These measures will bolster the ability of the VGCCC to take a strong position on breaches of the Code of Conduct and signal the Victorian Government’s clear intent to address harm at the casino.
The Bill separates the regulation of liquor from the VGCCC’s functions and establishes a new liquor regulator. The Victorian Liquor Commission (VLC) will consist of independent commissioners performing the same functions in relation to liquor as they do currently, supported by Department of Justice and Community Safety (DJCS) staff. As with the VGCCC, Commissioners will have a mix of relevant skills and experience including health sector, regulatory and legal experience. The Minister will also be given the ability to direct the Victorian Liquor Commission on its functions and objectives. Transferring the regulation of liquor to DJCS will allow the VGCCC to maintain focus on upholding the highest standards in the regulation of the casino and broader gambling industry.
Finally, the Bill introduces all of the savings and transitional provisions necessary to set up the new liquor regulatory arrangements. This will ensure continuity for, and minimise any disruption to, the liquor industry during the transition.
This Bill is the next step in the reform of casino regulation in Victoria.
I commend the Bill to the house.
Mr ONDARCHIE (Northern Metropolitan) (18:11): I move:
That the debate be adjourned for one week.
Motion agreed to and debate adjourned for one week.