Part 5Miscellaneous
34Delegation
(1)
The Minister may delegate to any public servant,
or to any person (or class of persons) prescribed by the regulations, any
function conferred on the Minister under this Act other than—
(a)
this power of delegation.
(b)
(2)
The Secretary of the Department of Enterprise,
Investment and Trade may delegate the exercise of any function of the
Secretary under this Act (other than this power of delegation)
to—
(a)
any person employed in the Public Service,
or
(b)
any person, or any class of persons, authorised
for the purposes of this subsection by the
regulations.
s 34: Am 2018 No 7,
Sch 1.1 [19]; 2019 No 14, Sch 1.1; 2022 No 59, Sch 3.2.
35Proceedings for offences
Proceedings for an offence under this Act are to
be dealt with summarily before the Local Court.
s 35: Am 2007 No 94,
Sch 4.
35AAPenalty notices
(1)
An authorised officer may issue a penalty notice
to a person if it appears to the officer that the person has committed a
penalty notice offence.
(2)
A penalty notice offence is an offence against
this Act or the regulations that is prescribed by the regulations as a penalty
notice offence.
(3)
The Fines Act
1996 applies to a penalty notice issued under this
section.
Note—
The Fines Act
1996 provides that, if a person issued with a penalty
notice does not wish to have the matter determined by a court, the person may
pay the amount specified in the notice and is not liable to any further
proceedings for the alleged offence.
(4)
The amount payable under a penalty notice issued
under this section is the amount prescribed for the alleged offence by the
regulations (not exceeding the maximum amount of penalty that could be imposed
for the offence by a court).
(5)
This section does not limit the operation of any
other provision of, or made under, this or any other Act relating to
proceedings that may be taken in respect of offences.
(6)
In this section, authorised
officer means a police officer or an
inspector.
s 35AA: Ins 2018 No
7, Sch 1.1 [20].
35ARemedial orders
(1)
A court that finds a person guilty of an offence
against this Act or the regulations, being an offence prescribed by the
regulations for the purposes of this section, may, in addition or as an
alternative to any penalty that it may impose for the offence, make either or
both of the following orders—
(a)
an order requiring the person to publish, or
cause to be published, an advertisement correcting any information contained
in any betting information or advertisement published by the person that the
court is satisfied on the evidence before it is false, misleading or deceptive
and giving directions (if any) that the court considers appropriate as to the
time, form, extent and manner of publication,
(b)
an order requiring any one or more of the
following—
(i)
the person,
(ii)
if the person is a corporation, a director of the
corporation or a person concerned in the management of the
corporation,
(iii)
an employee of the
person,
to undertake any specified course of training that the
court considers will promote responsible practices in the conduct of betting
activities by the person.
(2)
A person who, without lawful excuse, fails to
comply with an order under this section is guilty of an
offence.
Maximum penalty—20 penalty
units.
s 35A: Ins 1999 No
49, Sch 5 [1]. Am 2018 No 7, Sch 1.1 [21].
36Evidence
(1)
In any proceedings for an offence under this Act,
any allegation in the information in respect of the offence that—
(a)
any race meeting mentioned in the information was
held at a place and on a date specified in the information,
or
(b)
a warning off or disqualification by a racing
controlling body in respect of a person is in
force,
is evidence of the truth of the allegation concerned
unless the contrary is proved.
(2)
If an advertisement referred to in Part 4 refers
to a person as being the person—
(a)
by whom or on whose behalf the advertisement is
published, or
(b)
who is prepared to make or receive bets,
or
(c)
by whom or on whose behalf information or advice
has been or will be provided,
the person so referred to is, in the absence of proof to
the contrary, taken to have caused the advertisement to be
published.
(2A)
If a written publication or communication
(including on the Internet) of NSW race field information refers to a person
as being the person by whom or on whose behalf the publication or
communication is made, the person so referred to is, in the absence of proof
to the contrary, taken to have published or communicated the
information.
(3)
For the purposes of subsections (2) and (2A), a
person is taken to be referred to in such an advertisement or written
publication or communication if the person is mentioned or referred
to—
(a)
by name, or
(b)
by any other name or designation—
(i)
that is used or assumed by the person,
or
(ii)
by which the person is usually known,
or
(iii)
that is usually applied to the person’s
business or business premises.
(4)
If such an advertisement or written publication
or communication refers to a telephone number, post office box or an address,
the person renting the telephone or post office box, or the occupier of the
premises to which the address, is, in the absence of proof to the contrary,
taken to have caused the advertisement or written publication or communication
to be published.
s 36: Am 2008 No 96,
Sch 1 [16]–[18]; 2014 No 25, Sch 1 [4].
36ADisclosure of information
(1)
Any information acquired by a person in the
exercise of functions under this Act may be disclosed to the Chief
Commissioner of State Revenue.
(2)
This section does not limit the other persons to
whom information may be disclosed.
s 36A: Ins 2001 No
43, Sch 1 [4].
36AALiability of directors etc for offences by
corporation—offences attracting executive
liability
(1)
For the purposes of this section, an executive liability
offence is—
(a)
an offence against any of the following
provisions of this Act that is committed by a corporation—
(i)
section 18C,
(ii)
section 19,
(iii)
section 33H,
(iiia)
section 33HA,
(iv)
section 33I,
(v)
section 33J,
(vi)
section 33JA,
(vii)
section 33JB,
(viii)
section 33JC, or
(b)
an offence against the regulations—
(i)
that is prescribed by the regulations as an
offence to which this section applies, and
(ii)
that is committed by a
corporation.
(2)
A person commits an offence against this section
if—
(a)
a corporation commits an executive liability
offence, and
(b)
the person is—
(i)
a director of the corporation,
or
(ii)
an individual who is involved in the management
of the corporation and who is in a position to influence the conduct of the
corporation in relation to the commission of the executive liability offence,
and
(c)
the person—
(i)
knows or ought reasonably to know that the
executive liability offence (or an offence of the same type) would be or is
being committed, and
(ii)
fails to take all reasonable steps to prevent or
stop the commission of that offence.
Maximum penalty—The maximum penalty for the
executive liability offence if committed by an
individual.
(3)
The prosecution bears the legal burden of proving
the elements of the offence against this section.
(4)
The offence against this section can only be
prosecuted by a person who can bring a prosecution for the executive liability
offence.
(5)
This section does not affect the liability of the
corporation for the executive liability offence, and applies whether or not
the corporation is prosecuted for, or convicted of, the executive liability
offence.
(6)
This section does not affect the application of
any other law relating to the criminal liability of any persons (whether or
not directors or other managers of the corporation) who are accessories to the
commission of the executive liability offence or are otherwise concerned in,
or party to, the commission of the executive liability
offence.
(7)
In this section—
director has the same
meaning as in the Corporations Act 2001 of the
Commonwealth.
reasonable steps, in
relation to the commission of an executive liability offence, includes, but is
not limited to, such action (if any) of the following kinds as is reasonable
in all the circumstances—
(a)
action towards—
(i)
assessing the corporation’s compliance with
the provision creating the executive liability offence,
and
(ii)
ensuring that the corporation arranged regular
professional assessments of its compliance with the
provision,
(b)
action towards ensuring that the
corporation’s employees, agents and contractors are provided with
information, training, instruction and supervision appropriate to them to
enable them to comply with the provision creating the executive liability
offence so far as the provision is relevant to them,
(c)
action towards ensuring that—
(i)
the equipment and other resources,
and
(ii)
the structures, work systems and other
processes,
relevant to compliance with the provision creating the
executive liability offence are appropriate in all the
circumstances,
(d)
action towards creating and maintaining a
corporate culture that does not direct, encourage, tolerate or lead to
non-compliance with the provision creating the executive liability
offence.
s 36AA: Ins 2018 No
7, Sch 1.1 [22]. Am 2019 No 24, Sch 1[8] [9].
36BLiability of directors etc for offences by
corporation—accessory to the commission of the
offences
(1)
For the purposes of this section, a corporate offence is
an offence against this Act or the regulations that is capable of being
committed by a corporation.
(2)
A person commits an offence against this section
if—
(a)
a corporation commits a corporate offence,
and
(b)
the person is—
(i)
a director of the corporation,
or
(ii)
an individual who is involved in the management
of the corporation and who is in a position to influence the conduct of the
corporation in relation to the commission of the corporate offence,
and
(c)
the person—
(i)
aids, abets, counsels or procures the commission
of the corporate offence, or
(ii)
induces, whether by threats or promises or
otherwise, the commission of the corporate offence, or
(iii)
conspires with others to effect the commission of
the corporate offence, or
(iv)
is in any other way, whether by act or omission,
knowingly concerned in, or party to, the commission of the corporate
offence.
Maximum penalty—The maximum penalty for the
corporate offence if committed by an individual.
(3)
The prosecution bears the legal burden of proving
the elements of the offence against this section.
(4)
The offence against this section can only be
prosecuted by a person who can bring a prosecution for the corporate
offence.
(5)
This section does not affect the liability of the
corporation for the corporate offence, and applies whether or not the
corporation is prosecuted for, or convicted of, the corporate
offence.
(6)
This section does not affect the application of
any other law relating to the criminal liability of any persons (whether or
not directors or other managers of the corporation) who are concerned in, or
party to, the commission of the corporate offence.
s 36B: Ins 2002 No
15, Sch 4 [5]. Am 2011 No 2, Sch 1.29 [1] [2]. Subst 2012 No 97, Sch
1.35.
36BAEvidence as to state of mind of
corporation
(1)
Without limiting any other law or practice
regarding the admissibility of evidence, evidence that an officer, employee or
agent of a corporation (while acting in his or her capacity as such) had, at
any particular time, a particular state of mind, is evidence that the
corporation had that state of mind.
(2)
In this section, the state of mind of a
person includes—
(a)
the knowledge, intention, opinion, belief or
purpose of the person, and
(b)
the person’s reasons for the intention,
opinion, belief or purpose.
s 36BA: Ins 2012 No
97, Sch 1.35.
36CGiving of notices and other documents
(1)
For the purposes of this Act, a notice or other
document may be given to a person (or a notice or other document may be served
on a person)—
(a)
in the case of an individual—
(i)
by delivering it personally to the individual,
or
(ii)
by posting it, addressed to the individual at the
individual’s residential address, business address or address for
service of notices, or
(iii)
by leaving it with a person apparently aged 16
years or more at the individual’s residential address or business
address, or
(iv)
by sending it by means of electronic
communication or facsimile transmission, addressed to the individual at the
individual’s address for service of electronic communications or
facsimile transmissions, in accordance with the individual’s information
technology requirements with respect to the receipt of electronic
communications or facsimile transmissions, or
(b)
in the case of a corporation—
(i)
by delivering it personally to a person concerned
in the corporation’s management, or
(ii)
by posting it, addressed to the corporation at
the corporation’s business address or address for service of notices,
or
(iii)
by leaving it with a person apparently aged 16
years or more at the corporation’s business address,
or
(iv)
by sending it by means of electronic
communication or facsimile transmission, addressed to the corporation at the
corporation’s address for service of electronic communications or
facsimile transmissions, in accordance with the corporation’s
information technology requirements with respect to the receipt of electronic
communications or facsimile transmissions.
(2)
A reference in this section to a person’s
address of any particular kind includes a reference to the address of that
kind—
(a)
as last known to the Secretary,
or
(b)
as nominated by the person and provided to the
Secretary.
(3)
In this section, business address in
relation to a person includes the address of any racecourse of which the
person is the licensee.
s 36C: Ins 2006 No
91, Sch 1.2 [5]. Subst 2018 No 7, Sch 1.1 [23].
37Regulations
(1)
The Governor may make regulations, not
inconsistent with this Act, for or with respect to any matter that by this Act
is required or permitted to be prescribed or that is necessary or convenient
to be prescribed for carrying out or giving effect to this
Act.
(2)
A regulation may apply, adopt or incorporate the
provisions of any code or other publication, with or without modifications,
either as in force as at a particular day or as in force for the time
being.
(3)
The regulations may make provision for or with
respect to requiring or encouraging the adoption of responsible practices in
the conduct of betting authorised by or under this Act.
(4)
In particular, the regulations may make provision
for or with respect to the following—
(a)
restricting or prohibiting the conduct of
promotions or other activities (including advertising),
(b)
the standards to be observed for the conduct of
responsible gambling activities,
(c)
the notices to be displayed with respect to the
availability of counselling in respect of financial, social or other problems
that may arise in connection with gambling activities,
(d)
the inclusion on each ticket, coupon, token or
other thing sold or issued to a person for the purposes of placing a bet by a
licensed bookmaker of—
(i)
a warning notice about gambling,
and
(ii)
the name and contact details of a gambling
counselling service specified, or of a kind specified, by the
regulations,
(e)
the period for which accounts, documents and
records used by a bookmaker in connection with the bookmaker’s business
are to be retained,
(5)
The regulations under this section may create
offences punishable by a penalty not exceeding 50 penalty
units.
s 37: Am 1999 No 17,
Sch 1 [2]; 1999 No 49, Sch 5 [2]; 2001 No 43, Sch 1 [5].
38Savings and transitional provisions
Schedule 1 has effect.
39Review of Act
(1)
The Minister is to review this Act to determine
whether the policy objectives of the Act remain valid and whether the terms of
the Act remain appropriate for securing those
objectives.
(2)
The review is to be undertaken as soon as
possible after the period of 5 years from the date of assent to this
Act.
(3)
A report on the outcome of the review is to be
tabled in each House of Parliament within 12 months after the end of the
period of 5 years.
40Certificate evidence
In proceedings for an offence under section 33, a
certificate purporting to be given by a relevant racing control body
certifying that—
(a)
a specified betting service provider or other
person was or was not the holder of a race field information use approval at a
specified time or during a specified period, or
(b)
specified information is NSW race field
information,
is admissible and is prima facie evidence of the
particulars certified in and by the certificate.
s 40: Am 2008 No 96,
Sch 1 [19]; 2014 No 25, Sch 1 [19].