Below we have a round-up of some recent issues we’ve been made aware of and questions we often receive. These clarify responsibilities and provide some recommendations for good practice.
What is your gambling area?
Recently we have become aware of a number of issues regarding defined and undefined gambling areas. The definition of “gambling area” in the Gambling Act (s4) dictates where gaming machines can be placed in a venue and has important implications for gambling operators. The Act states that for pubs and clubs, the whole venue is the gambling area, unless there is a defined gambling area on the licence.
There have been occasions where gaming machines have been moved outside of the defined gambling area without any amendment made to the licence. If a venue has a defined gambling area, it is a breach of the licence to operate machines outside of that area.
There have also been some cases of ATMs being put into venues that have no defined gambling area. This is a breach of the Gambling (Harm Prevention and Minimisation) Regulations 2004.
If a venue has no defined gambling area:
• ATMs are prohibited from the venue
• Excluded people are excluded from the entire venue. An excluded gambler cannot use the bar or other facilities at the venue.
• A licence amendment is not required to move machines. However, the Department strongly recommends that societies contact their liaison officer before moving machines to ensure there are no issues around access or supervision of the machines.
If a venue has a defined gambling area:
• The gaming machines must not be moved outside the gambling area without an amendment to the venue licence. If they are moved outside the gambling area the operation of the machines is illegal and the machines may be shut down.
• Excluded gamblers are excluded only from the gambling area - they can still use other facilities in the venue.
Applications to specify or amend a gambling area must include a floor plan that:
• is clear and simple
• is drawn to scale
• clearly delineates the gambling area(s)
• is signed by both the venue operator (or their authorised representative) and a trustee or other officer of the corporate society.
The floor plan should clearly show the following:
• All doors and access points to the gambling area (including access points kept locked or alarmed)
• Primary employee work stations
• Devices such as CCTV cameras, sensors, swipe card systems
• Any other measure that may prevent minors and problem gamblers from accessing the gambling area.
Floor plans must be drawn with enough accuracy and precision that we can clearly assess the size of the gaming area relative to the rest of the venue, and determine whether there appear to be any issues around access and monitoring that might mean we need to visit the venue before approving the gaming area. A rough drawing will not be sufficient and is likely to mean your application will be delayed.
We encourage societies to talk to their liaison officer if they have any questions about defining a gambling area, or if they wish to move gaming machines within a venue.
Rounding of gaming machine prizes
We have recently had some complaints about venues refusing to pay anything other than whole dollar amounts for gaming machine prizes. For example, if the prize is $200.45 the venue will only pay $200. The game rules provide that prizes must be rounded to the nearest 10c as that is the smallest denomination of coin. There is no authority for a venue to round a prize to the nearest whole dollar. Patrons are entitled to receive the full amount of their payout and venues that withhold even a small amount are withholding money that belongs to their patrons.
Complainants have also told us that they have been asked to sign receipts for the full amount of the prize even though that was not the amount that they were paid. We are concerned at suggestions that venues may be asking patrons to sign false receipts.
Although the amounts involved for each individual prize are very small, this goes to the fairness and integrity of gambling. The Department takes the integrity of gambling very seriously and may question the suitability of venue operators and managers who unlawfully withhold prize money or ask patrons to sign false receipts. We expect societies to ensure that their venues pay the full amount of prizes in all cases.
Licence conditions relating to gaming room access
We have had a number of enquiries about removing licence conditions relating to access to the gaming room. Licence conditions are considered on a case by case basis and depend on the particular layout and circumstances of the venue. In general, a long-standing licence condition would only be removed if something had changed at the venue. Usually there would need to be a change to the layout or the defined gaming area that addressed the original access concern before we would consider removing the licence condition.
The Gambling Commission’s decision in the case of the Riversdale Tavern is often cited as justification for removing a licence condition relating to access. The Riversdale case is helpful in setting out some of the factors that must be considered. However, the decision was made in the context of the particular circumstances of the venue and does not create a blanket rule for all venues.
Retention of records
We have been asked how long venues can or should retain records of exclusion orders after they have expired. The Privacy Act states that personal information must not be kept for longer than is required for the purpose for which it was collected. In the case of exclusion orders, personal information about the excluded person is collected for the purpose of issuing and enforcing the order. Once the order has expired, a venue must consider whether it is necessary to continue to hold the information.
There is no hard and fast rule about this. Venues must make their own judgement about how long to retain information about expired exclusion orders, bearing in mind the provisions of the Privacy Act. However, you should only keep expired exclusion orders if it is necessary to do so. Keeping records of previous orders because they might be useful in the future is highly unlikely to meet the provisions of the Privacy Act.
If a venue decides to destroy information about expired exclusion orders they must make sure that the information is disposed of in such a way that there is no risk of it being disclosed e.g. confidential waste destruction rather than simply putting it in the rubbish.
The same principles apply whether records are electronic or on paper. Electronic records must not be held longer than necessary and societies must ensure that the records are destroyed from the system and not simply archived.
Venue transfers or sale
It has come to our attention that exclusion orders are sometimes removed from a venue (along with other business documentation) when the venue is sold or transferred. This means a new venue operator or society may not have a full list of excluded gamblers which is a major concern. Exclusion orders apply to a venue regardless of who is operating gaming machines at the venue and the current venue owner has a legal obligation to enforce them.
Exclusion orders belong to the venue, not the society. It is vital that the records of existing exclusion orders are kept in the venue so that the venue can meet its obligations. If your venue does change hands or is transferred to another society please ensure that all exclusion information (including photos and exclusion orders) are passed onto the incoming venue operator/society. If a venue keeps a harm minimisation logbook detailing signs of potential problem gamblers, this should also be handed over to assist the new operator in tracking gambling behaviour over time.
Protecting the Privacy of Excluded People
A recent complaint received by the Department has highlighted the responsibility for class 4 venues to have processes in place to protect the privacy of excluded gamblers. Being identified as a problem gambler is a very personal issue to those involved and public disclosure can affect counselling efforts.
As an example of a privacy breach, in November a Waikato venue employed the services of a tradesman. While at the venue, the tradesman saw the venue’s board of excluded people. Without the knowledge of the venue, the tradesman took a photo of the board (which included 20 excluded people) and later posted this on social media, highlighting an individual that he knew.
As a result of the privacy breach, the venue has banned the tradesman from the venue and has raised their concerns around the breach of privacy with the tradesman’s employer. In addition, all excluded people were notified of the breach and the right to make a complaint to the Privacy Commissioner.
While the venue was let down by the tradesman, venues are responsible for protecting any personal information they hold, and must take all reasonable steps to do this. We encourage venues to have ready access to photos of excluded gamblers to make it easier for staff to recognise them.If you do display the photos you must make sure the display is in an area that only staff can access.
To protect your venue, we recommend:
• Restrict access – make sure photos of excluded gamblers are displayed in an area where only staff have access;
• Cover or remove the photos before allowing tradesmen or any other non-staff into that area.
You can find more information about the obligations around personal information on the Privacy Commission website www.privacy.org.nz