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Gambling Amendment Bill (No 3) (Consistent) (Section 27(2)) [2014] NZBORARp 14 (30 April 2014)

Last Updated: 24 March 2019

Gambling Amendment Bill (No 3)

30 April 2014

Hon Christopher Finlayson QC, Attorney-General


Legal Advice

Consistency with the New Zealand Bill of Rights Act 1990: Gambling Amendment Bill (No 3) Purpose


  1. We have considered whether the Gambling Amendment Bill (No 3) (PCO 17613/1.8) (‘the Bill’) is consistent with the rights and freedoms affirmed in the New Zealand Bill of Rights

Act 1990 (‘the Bill of Rights Act’).


  1. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act. In reaching that conclusion, we have considered the consistency of the Bill with s 27(2) (right to judicial review). Our analysis is set out below.

The Bill


  1. The Bill proposes a number of amendments to the Gambling Act 2003 (“the Act”). The key aims of the Bill are to—

Consistency of the Bill with the Bill of Rights Act


Section 27(2) – right to judicial review


  1. Clause 17 of the Bill seeks to insert a new s 235A into the Act. The new section would limit the right of class 3 and 4 gambling operators to apply for judicial review of licensing decisions by the Secretary for Internal Affairs. Operators would be required to exhaust their statutory right of appeal to the Gambling Commission before they could apply for judicial review.
  2. Under s 27(2) of the Bill of Rights Act, any person whose legal rights, obligations or

interests are affected by a determination of a public authority has the right to apply, “in accordance with law”, for judicial review of that determination.

  1. The use of the phrase “in accordance with law” in s 27(2) demonstrates that regulation of the right to judicial review is permitted, provided the right is not removed or denied.1 The proposed s 235A would not remove or deny the right to judicial review. Rather, it would regulate the right by delaying the ability to exercise it until any rights of appeal to the Gambling Commission had been exhausted. We therefore consider that the proposed s 235A is consistent with s 27(2) of the Bill of Rights Act.
  2. Alternatively, if the proposed s 235A does limit the right to judicial review, the limitation is justifiable.
  3. We understand that s 235A is intended to ensure that gambling licensing matters are considered by an efficient and specialist appellate body. This was the original policy objective behind the establishment of the Gambling Commission.
  4. The limitation on judicial review only applies where there is a statutory right of appeal. Accordingly, s 235A would not deprive gambling operators of an avenue for recourse against adverse decisions. It simply recognises the desirability of having licensing decisions considered by a specialist body in the first instance. Operators would still be able to apply for judicial review after any appeal had been finally determined.
  5. In Tannadyce Investments Limited v Commissioner of Inland Revenue, the Supreme Court considered a provision in the Tax Administration Act 1994 (TAA) restricting taxpayers’ right to judicial review.2 Under the TAA, tax assessments can only be disputed through a statutory challenge procedure. The Supreme Court found that there was no need to strain the interpretation of the TAA in order to uphold taxpayers’ right to judicial review. The provision did not deprive taxpayers of access to justice, because there was an alternative statutory challenge procedure available to them.3
  6. Similar reasoning applies to the new s 235A proposed in the Bill. Any adverse impact the section would have on gambling operators’ ability to access justice would be minimal. We consider that any limitation on the right to judicial review is proportionate to the objective of ensuring efficient and effective consideration of licensing decisions by a specialist body.
  7. For these reasons, we conclude that any limits the Bill would place on the right to judicial review are justifiable in the statutory context.

Conclusion


  1. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act.

Tania Warburton


Acting Chief Legal Counsel Office of Legal Counsel

Footnotes

  1. Geoffrey Palmer "A Bill of Rights for New Zealand: A White Paper" [1984-1985] I AJHR A6 at 111.
  2. Tannadyce Investments Limited v Commissioner of Inland Revenue [2011] NZSC 158, [2012] 2 NZLR 153.

3 At [56]-[61].


Disclaimer

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Gambling Amendment Bill (No 3). It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.


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