Industry Alert - Update to Guideline 16

Earlier this year, the NSW Independent Liquor and Gaming Authority (the Authority) updated Guideline 16, which governs the way in which it assesses applications that increase access to post-midnight gaming.  

The Guideline formerly applied to any application that, if approved, would result in increased availability of gaming machines after 12 midnight at a venue located in a Band 3 SA2, or after 2am at any venue. Now, it applies to any application that, if approved, would result in increased availability of EGMs after 12 midnight at any venue.

The catalyst for the update was the case of ILGA v Whitebull and Ors [2023] in the NSW Court of Appeal, which highlighted the Authority’s responsibilities and powers regarding late-night gaming and with regard to Guideline 16.  The changes come after a 2023 Roy Morgan Survey, commissioned by the NSW Responsible Gambling Fund, added to the increasing volume of academic and statistical research considered by the Authority in assessing these types of applications.

The changes emphasise the fact that public interest considerations now weigh heavily in any decision to impose a condition under s 53 of the Liquor Act. They also add that licensees should be aware that conditions may be imposed under s53 at any time, irrespective of whether any particular application or matter relating to the licence is before the Authority.

The updated Guideline adds the following to the non-exhaustive list of relevant data it considers for its decisions on these matters:

-        Crime statistics for the suburb and LGA;

-        The venue’s compliance history and disciplinary history of current and previous licensee/s;

-        Especially in regional areas, evidence of the social value of sporting clubs; and

-        The applicant’s history and business objectives.

The changes also place greater emphasis on a venues Gaming Plan of Management (GPOM) when assessing a late-night gaming related application. The Authority now considers, among other things, “the robustness of harm minimisation measures in place at the applicant venue, including the strength of the proposed GPOM.”

Businesses and applicants should understand that late-night gaming related applications are often contentious types of applications to succeed before ILGA. Guideline 16 now states that:

-          Applicants should expect to discuss harm minimisation if the Application results in additional late-night gaming;

-          The Authority looks to evidence of harm minimisation in the venue and may be influenced by Applicant’s submissions; and

-          The Authority will continue to have regard to Guideline 6 and consider the CIS and other relevant factors. It will continue to consider applications case-by-case on individual merit.

Advice to Applicants

Importantly, the updated Guideline 16 asserts that evidence that the potential for gaming related harm after midnight and especially 2am has been acknowledged and will be effectively mitigated is particularly influential. In including advice to applicants and businesses, it states:

-          Applicants should turn their minds to the evidence and information noted in the Updated Guideline when making submissions.

-          Reference should be made to the Office of Responsible Gambling fact sheet “Responsible Conduct of Gambling for Venues”.

-          Applicants should generally be able to demonstrate at minimum they have all the Foundational Level strategies in place.

-          Applicants with higher risk applications should demonstrate they have most Intermediate and at least some Advanced level strategies in place.

What this means for your business

If you intend to lodge a late-night gaming related application with the Authority, it is important to understand that the Guideline 16 changes reflect an increasing volume of research which emphasises post-midnight gaming related harm, and therefore signals an emergent opposing stance by the Authority. The Authority has stated, in publishing this updated Guideline 16, that it “in the face of the evidence” it intends for “venues offering gaming facilities will recognise the risks and themselves introduce effective measures to protect their members and customers from harm.”

As such, it is crucial that businesses respond to the Authority’s shift in being thorough and precise with their application to ensure that harm-minimisation measures are clearly set out and address specific areas of the Guideline as required. The update Guideline clarifies the Authority’s position that it is unlikely to approve these types of applications without effective conditions, such as limiting operating hours to decrease the risk of gaming-related harm.

To learn more about the updated Guideline, you can view it using the link here.

To get started on putting in place harm-minimisation measures to give your application the best chance of success, please visit the Responsible Conduct of Gambling page here.

Having experienced, precise advice for these types of applications is fundamental to success before the Independent Liquor and Gaming Authority. If you are considering your own application for late-night gaming related trade, please do not hesitate to contact BSV’s licensing team via email at licensing@bsvliquorlicence.com.au, or via telephone on (02) 8530 0333.

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