Statutes Amendment (Gambling Measures) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 3 June 2015.)

Mr GRIFFITHS (Goyder) (17:28): I confirm that I am the lead speaker on the Statutes Amendment (Gambling Measures) Bill. We shall not be an overly long time. There is one other speaker, but there are some issues that I will pose to the minister acting on behalf of minister Gago that have been put to the opposition only in recent days. I acknowledge from the start that there has been good support from the minister's office in replying to requests for information, and the opposition certainly appreciates that.

When I was first provided with this bill folder I thought that it would be relatively quick, that it should not take very long to get through it, but there have been issues raised by—and I will quote this—the SA Texas Hold'em Association when it comes to poker. I will be repeating some direct words just to put in place their thoughts on the bill.

The bill was introduced by minister Gago on 26 March 2015. The bill proposes a series of amendments to the Gaming Machines Act, the Independent Gambling Authority Act, the Lottery and Gaming Act and the Problem Gambling Family Protection Orders Act. The major issues proposed are:

a new offence for a person to purchase, or enter into a contract or agreement to purchase, a gambling machine unless licensed;

the removal of prohibition of EFTPOS facilities in gaming areas;

giving the Liquor and Gambling Commissioner the power to seek input from the SA police about any gaming employee;

reducing red tape by removing the requirement for the Liquor and Gambling Commissioner to approve the layout of gaming machines in a gaming area;

clarifying the law so that it is clear that it is unlawful to play poker in a public place whilst allowing tournament poker to occur, and that will be the issue that we will talk about at some length; and

staff of the Independent Gambling Authority are to become Public Service employees.

I am advised that the Gambling Reference Group, which includes representatives of the AHA, Clubs SA and Relationships Australia support all these amendments. I am aware that the Hon. John Darley from the other place proposed amendments, but I do not believe they were supported. I confirm that the Liberal Party does support the bill.

With those words, I just want to put on the record for the benefit of the minister some background to the area on which I will be seeking some clarification when it comes to the committee stage. As I say, this email correspondence only started to arrive this week, so it is relatively fresh. Mr Michael Cane of the SA Texas Hold'em Association sought clarification on some concerns, and on behalf of his association, he says:

Our main concern is that the bill states (from Hansard records): 'amends the definition of unlawful gaming to include playing at or engaging in a game of poker in a public place'.

He goes on to say:

This would mean any poker played outside of the casino where money is paid for entry is illegal, including for both cash or tournament style games.

Currently tournament poker relies on the entrant paying a buy in which gets them a stack of tournament chips. These chips have no intrinsic value, and are representational only. As players are eliminated, prizes are paid until there is a winner.

On the cash side of things, currently it is not illegal to host a game of poker in a public place providing the organisers or venue do not profit from the game of poker itself: the income derived is from the sale of food and beverage, or players using other gaming facilities often on site.

In response to this email, the office of the Hon. Rob Lucas, the shadow minister, replied:

…[that's] not my understanding of what this Bill will do. The Government has publicly said that 'it is the government's intention to make a regulation to clarify the definition of tournament poker and to ensure that tournament poker that does not involve gambling is not an unlawful game.' Therefore, tournaments where players pay a fee to enter, with the money going into a prize pool, (ie players not gambling cash) will not be made illegal. This has been confirmed by the Hotels' Association (which was part of the Gambling Reference Group, which led to this legislation being introduced) as well as the Government.

In response to that, Mr Cane from the Texas Hold'em Association quotes from the Hon. Mr Piccolo's second reading explanation:

A lack of clarity exists as to whether gambling on poker is prohibited under the Lottery and Gaming Act.

Tournament poker that does not involve gambling is a popular activity and is undertaken by many hotels, clubs and other not-for-profit associations. There is, however, concern that some poker games being conducted in public places, under the guise of being tournament poker, may involve gambling and are being conducted without any integrity or responsible gambling regulation.

The Bill proposes to make it unlawful to play at, or engage in, a game of poker in a public place. It also proposes to provide the Minister with the power to make a regulation to prescribe the circumstances in which playing, or engaging in, a game will, or will not, constitute unlawful gaming.

It is the Government's intention to make a regulation to clarify the definition of tournament poker and to ensure that tournament poker that does not involve gambling is not an unlawful game.

Following on from that, the Texas Hold'em Association goes on to say:

As far as the poker community is concerned, allowing the minister to have powers to determine or not if a game is illegal is very open to corruption and enticement by unethical operators.

The proposed amendments do not indicate what will and will not be legal under the act. The issue for this is how do we—

the Texas Hold'em Association—

know it if it is or is not illegal until SAPOL or [the Office of Consumer and Business Services] or the [Office of the Liquor and Gambling Commissioner] storm in and disrupt a tournament of [up to] 150 people when they are 'acting on advice of the minister'?

As previously stated, we have no issue with regulation being passed around the responsible operation of poker, what we do have is an issue with it being made illegal at the whim of the minister.

The Hon. Mr Lucas's staff member has replied to that which resulted in a further response from the SA Texas Hold'em Association as follows:

Our concerns are that providing the venue does not profit from/charge for the playing of poker itself, that this should be legal. This is how we understand the current legislation to be, and after inspections from SAPOL previously they have ascertained that no such practice exists within the organisations and leagues I am representing. We would certainly seek clarification on this matter, as we read it any poker that you even pay to enter would be illegal, irrespective of the venue or league profiting from the game.

We are unsure how this bill amendment changes anything if what you are saying is correct? If what you presume of tournament being protected, why is there mention of this in the amendments? I once again must draw attention to this particular phrase from Hansard:

'The Bill proposes to make it unlawful to play at, or engage in, a game of poker in a public place. It also proposes to provide the Minister with the power to make a regulation to prescribe the circumstances in which playing, or engaging in, a game will, or will not, constitute unlawful gaming.'

Mr Cane goes on to say:

And the phraseology of the amendment itself:

'17—Amendment of section 4—Interpretation

Subclause (1) amends the definition of unlawful gaming to include playing at or engaging in a game of poker in a public place. The regulations may prescribe circumstances in which playing at or engaging in a game of poker will or will not constitute unlawful gaming. The amendment in subclause (2) is consequential on the amendment in subclause (1).'

The Texas Hold'em Association goes on to say:

I am not sure of there is any room for interpretation when the phrase of 'amends the definition of unlawful gaming to include playing at or engaging in a game of poker in a public place.'

One might have assumed that that was it, but it is not. There is more that follows on from this. I will put this on the record because I think it is important because it relates to the response provided by minister Gago's staff via the Hon. Rob Lucas which was forwarded to the Texas Hold'em Association:

Here is the response I have received from the Minister's Office. Please let me know your thoughts:

The Lottery and Gaming Act prohibits a range of activities associated with lotteries, gaming and betting, unless authorised by another Act, such as the Casino Act 1999. Tournament Poker is undertaken by many hotels, clubs and other not-for-profit associations. It does not involve gambling. A lack of clarity exists as to whether gambling on poker is prohibited under the Lottery and Gaming Act.

In Police v Jones, Police v Ravesi (2008) SAMC 62, Magistrate Kossiavelos considered whether a Texas Hold'em Poker Tournament conducted by the Australian Poker Association (APA) was unlawful gaming under the Lottery and Gaming Act. Members of the APA, some of whom signed up before the tournament began, were able to participate in the tournament. Each participant was given chips with a face value of $1,000 and was able to purchase additional credits for a fee. The prize was seat/s in a further tournament. Magistrate Kossiavelos found that the game being played was not an unlawful game under section 59 of the Lottery and Gaming Act and was not unlawful gaming under section 4. Magistrate Kossiavelos also found that the game did not contravene section 51 as it was not a game or pretended game of chance. Rather, Magistrate Kossiavelos appeared to accept expert evidence that poker involved some skill.

as it certainly does—

While it is considered that other sections of the Lottery and Gaming Act could address gambling on poker in a public place, the Government is taking the approach to implement a clear and direct prohibition on playing poker in a public place in the Act.

It should be noted, however, that it is not the intention to outlaw the playing of poker in a public place that does not involve gambling. The proposed section of the Bill enables Regulations to be made that specify circumstances where poker in a public place is not unlawful. This is similar to the approach taken under the Lottery and Gaming Act for exempt lotteries. The Government has now prepared draft regulations—

which has been tabled—

… that propose to maintain status quo in respect to Tournament Poker currently played in hotels and clubs where there is no gambling. To ensure that these regulations are appropriate, the Government has provided them to a number of key stakeholders for a short period of public consultation.

Some listening to this may question why I have read so much into the Hansard, but I thought it important for the clarification of this group and when we come to the committee stage I will read into the record their frustration that they were not a part of the group that was consulted on the legislation. They have asked that it be put there for clarification purposes. This is all about ensuring that for those who have to operate under the legislation as it will be passed, because the government and opposition certainly support it, there is a knowledge that exists.

I will not hold up the debate much more. There is another member who wishes to make a contribution, but I do confirm that I would wish to go into committee to talk about one clause in particular.

Mr BELL (Mount Gambier) (17:40): Most of the points I had written down have been covered. It is fair to say that this has caused a flurry of emails to my office as well. It is around the definition and interpretation of section 4, which we will flesh out a lot more in the committee stage where I will read some stuff in there as well.

The other point I would like to seek some clarification on is the EFTPOS versus the ATM section. There does not seem to be too many problems with the rewriting, I suppose, of EFTPOS being a transaction that can take place but I would have serious concerns about ATMs being a part of gambling sections—as I said, the organisations that have contacted me in some form are: Poker SA, 888poker and IPT poker—the definition of tournament poker and the impact on RSL clubs in the South-East and jobs being taken into serious consideration at a time when many of these organisations are looking for other revenue and also, I guess, the impact this will have in terms of people diverting back to poker machines as, I think, a much more destructive form of entertainment, if that is indeed the correct word.

It was interesting that it was put on the record that in the British High Court poker has been recognised as a sport, and that was also backed up with some cases in Australia that the member for Goyder has read out, so I will not go through those again. I will progress this debate in the committee stage. Thank you.

The Hon. A. PICCOLO (Light—Minister for Disabilities, Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (17:42): My understanding is that we are going to go into committee. I would like to thank the members for their contributions. As noted in the second reading explanation, the bill seeks to finetune the statutory framework applied to gaming. The amendments are focused on providing greater (believe it or not) clarity and certification for businesses and customers.

The Lottery and Gaming Act prohibits a range of activities associated with lotteries, gaming and betting, unless authorised by regulations or other acts, and that is very important—unless authorised by regulations—and that is what we seek to do and will clarify in a moment. The bill before us proposes a direct prohibition on playing poker in a public place but allows that regulations be made that specify circumstances where poker in a public place does not fall within the definition of unlawful gaming. The regulations are currently being drafted by parliamentary counsel and I understand that draft copies have been circulated to members of the opposition.

Key stakeholders are being consulted to ensure that games of poker that do not involve gambling, including popular forms of tournament poker currently played in hotels and clubs, can continue to be lawfully played in a public place, but it is also important that those people who currently try to get around the law by doing it this way cannot do so. Again, I thank honourable members for their contributions and support and look forward to dealing with this in an expeditious manner through the committee stage.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 8 passed.

Clause 9.

Mr BELL: The concern is around the easing of access to cash within the confines of a poker machine area. It has been well documented that breaking the concentration, breaking the audio and visual stimulation that poker machines provide, in some instances provides an opportunity for people not to resume gambling, and of course this is most relevant to those who have an addiction or a problem with gambling. My concern is around the safeguards for problem gamblers with this amendment.

The Hon. A. PICCOLO: Unlike ATMs, EFTPOS facilities provide a degree of human interaction at point of cash withdrawal. Currently, gamblers would be required to leave the gaming room and withdraw cash using EFTPOS facilities outside the gaming area. The gambler may not be able to be observed or served by trained gaming area staff while undertaking the EFTPOS transaction. If the EFTPOS facility is located in the gaming area, there is a better chance of the appropriate intervention, where a gambler is being observed by a trained gaming manager or employee. This situation currently exists in the Adelaide Casino.

What we are saying is that, even though you may think it is better for a gambler to go outside, go to a machine and take out money, by having the machine inside, the person will actually get to understand their behaviour, and they are trained people who would then talk to people and provide counselling or support.

Mr BELL: Just to be clear, when we are talking about the machine, we are not talking about ATMs, we are talking about EFTPOS machines, aren't we?

The Hon. A. PICCOLO: That is correct.

Mr BELL: The main intent of this, I understand, is the face-to-face interaction which, of course, I would endorse, but is a secondary element due to planning and spreading out the process for the planning requirements in terms of layouts for poker machine facilities? Is that also a major reason why this needs to be implemented?

The Hon. A. PICCOLO: The advice I have received is that this matter is quite independent of the development approval process—quite independent.

The CHAIR: You have had three, but we will pretend you can have four.

Mr BELL: Thank you. Is that also to do with the reconfiguration of existing premises? I thought I read somewhere that having the EFTPOS facility in the venue made the planning requirements a little bit more flexible. Have I misread that?

The Hon. A. PICCOLO: I am advised that the member is right; there was some wording about that, but the two things are separate issues and they are not interrelated.

Clause passed.

Clauses 10 to 16 passed.

Clause 17.

Mr GRIFFITHS: In referring to Mr Michael Cane before from the SA Social Texas Hold'em Association, I will clarify that he is representing Scomic Poker, NPL, NPPL, SE 4 Leagues, Poker SA, Full House Group, APL, 888 Poker, Rivered Poker League and 5 Diamond Poker. I did not know that many existed.

The Hon. A. Piccolo: You have got a full hand there.

Mr GRIFFITHS: Boom, boom! Mr Cane, on behalf of all those groups there, states—and this is from a meeting that was only held last night, so it is relatively fresh:

We had a very fruitful meeting last evening, and it appears as though the wider South Australian, and indeed Australian Poker Community have the same thoughts on this matter.

I will go into the questionnaires, but I just want to put some of the context of this first.

We do believe these abovementioned parts of the legislation need to be addressed, as they will not allow us to continue in the current format, and will result in major changes to how the leagues currently operate.

As a group, we strongly oppose the statement that appropriate consultation has taken place as the AHA and Casino do not represent the poker community. We believe that our group, representing over 2000 poker players, and employing in excess of 100 full time and numerous part time staff, need to be consulted on this matter prior to any bill being passed. We also feel that the concerns we have need to be ratified in the amendment bill itself, rather than being open to ministers discretion.

Before being passed, this bill must be consulted with the relevant people that are affected by it, and at this stage no organisation that I represent—

and I quoted the seven or eight that he does—

has had any direct contact from any member of the joint committee or any of the government ministers regarding this.

I note that the regulation that I have been provided is dated 10 August; I presume that is the version we are talking about. On that, I have five question areas. The first one relates to 2(a).

The regulations will only protect the 'deep stack' style tournament where there is no rebuy and no add-on facility, as outlined in 2(a) of the regulations. This does not in my opinion sit well with most free roll pub poker players, as the rebuy and add-on are a key part of that style of game. The low cost nature of entry in these events (normally between [up to $50 in range]) allows for re-entering or re buying of a starting stack of chips. This regulation would affect the vast majority of poker venues and leagues in SA.

I just seek clarification on that.

The Hon. A. PICCOLO: I have to admit that I have never played poker in my life, but I think I can answer this question and following questions in the following way. Behind the questions are two things: one is the lack of consultation, therefore, the regs may not be right; and, secondly, the issues around a minister's discretion.

First of all, under the proposed bill and regulations, there will not be a minister's discretion: it will be regulated. In other words, the regulations will actually say what types of poker-related activities will be exempt from being an unlawful event. So, it is not a case of the minister granting an exemption event by event, the regulations will cover that, so the issue that is then raised about corruption is not a valid one.

In terms of the consultation, the member is quite right. Those groups have not been consulted. They have sort of come out of the woodwork since the regulations. However, the minister is more than happy to consult with these groups and other groups prior to adopting the final form of the regulations. So, if there is more finessing or word changing required to make it practical, the minister is more than happy to engage with those groups.

I should say that these are only draft regulations, so if there are things which any group thinks may not be workable, now is the time to engage with the minister because they are not the final regulations and have not been enacted. The minister will not put these before the house until such time as she has had a chance to engage with the various groups.

Mr GRIFFITHS: I thank the minister for clarifying that and confirming the willingness of the minister to actually be involved in that, and I think that will short-circuit what we do now. I will be very quick about this, but I will just read into the record some of the points which I think will help the minister to prepare for the consultation that needs to occur. This flowed on in a contact from Mr Cane, and I quote:

There is no opportunity for 'early entrants' to gain an advantage from a chip perspective as outlined in 2(b) of the regulations. Currently venues and leagues offer bonus chips for early entries: i.e. if you arrive and pay your entry fee by a certain time before the commencement of the poker game, you receive bonus chips. Particularly for ongoing weekly events, this detracts from the profit centres of food, beverage and gaming machines, as this is a hook to get people in earlier.

The next point states:

Prizes must be determined prior to commencement of the tournament as per 2(d) of the regulations. This would mean no opportunity for late entrants, and would drastically reduce the size of games held. This needs to be rewritten.

And I can sort of understand the emphasis here. I continue:

A great example of payout structures can be seen in the likes of the ANZPT [and I do not know what that means but it is a tournament] where they have a published percentage payout structure based on entrants at the start of the season. This allows for no limit on the amount of entrants in a tournament, but does not publish the actual payout amounts in dollars, rather a percentage.

That is logical to me. The next point states:

There is no regulation or amendment regarding cash games where the venue does not take rake or profit from the game itself. Currently this is legal, as the players are playing amongst themselves for money, and the venue charges a food and beverage charge of similar and offers complimentary soft drinks and food, etc. As previously discussed, this style of poker is legal as the venue is not profiting from the game of poker itself.

The last point I make on Mr Cane's behalf is:

As has previously been proven in the South Australian Magistrates Court, along with British High Court [as referred to by the member for Mount Gambier], poker is not gambling and is a sport. We believe that the use of the word 'gambling' in association with poker is not appropriate, and if you use the term 'gambling' with poker, it must also be used in any tournament where prize money is awarded based on a game involving both skill and luck. This would include any sports played where prize money is awarded for winning a tournament, such as tennis. This is very different to games that involve luck or chance and no skill, such as bingo, blackjack and 2 up. We believe that it is discriminatory to single out poker over other games of skill, particular mind sports as defined by the International Mind Sports Association. These include the likes of backgammon, bridge and chess, none of which are considered gambling but for some reason the game of poker in South Australia is.

I rest the opposition's case.

The Hon. A. PICCOLO: I think that the answer to the issues raised is that, one, the organisations need to write to the minister and put their concerns and engage in the process of consultation. Having said that, I would wish to make it very clear that it is not the government's intention to impose a regulatory burden on legitimate poker tournaments that do not involve gambling. It is the government's intention to make it clear that gambling on poker in a public place will be unlawful, though. I think that those legitimate concerns can be raised through the final regulations.

Clause passed.

Remaining clauses (18 to 22), schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. A. PICCOLO (Light—Minister for Disabilities, Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (17:58): I move:

That this bill be now read a third time.

Bill read a third time and passed.

At 17:58 the house adjourned until Wednesday 23 September 2015 at 11:00.