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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
- 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’).
- 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
- The
Bill proposes a number of amendments to the Gambling Act 2003 (“the
Act”). The key aims of the Bill are to—
- increase
transparency of grant-making from the proceeds of class 4 gambling;
- reduce potential
conflicts of interest between class 4 gambling operators, venues and grant
recipients;
- improve
transparency around management companies that provide services (such as contract
negotiation and financial management) to
gambling operators;
- simplify
compliance and reduce compliance costs for gambling operators and venue owners
in some areas; and
- ensure the
efficiency of the appeals process is not undermined.
Consistency of the Bill with the Bill of Rights Act
Section 27(2) – right to judicial review
- 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.
- 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.
- 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.
- Alternatively,
if the proposed s 235A does limit the right to judicial review, the limitation
is justifiable.
- 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.
- 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.
- 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
- 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.
- 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
- 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
- Geoffrey
Palmer "A Bill of Rights for New Zealand: A White Paper" [1984-1985] I AJHR A6
at 111.
- 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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