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2022
THE
LEGISLATIVE ASSEMBLY FOR THE
AUSTRALIAN CAPITAL
TERRITORY
GAMING MACHINE (CLUB REFUGE) AMENDMENT
BILL 2022
EXPLANATORY
STATEMENT
and
HUMAN RIGHTS COMPATIBILITY
STATEMENT
(Human Rights Act 2004, s
37)
Presented by
Shane Rattenbury
MLA
Minister for Gaming
GAMING MACHINE (CLUB REFUGE) AMENDMENT BILL 2022
The Bill
is not a Significant Bill. Significant Bills are bills that have been
assessed as likely to have significant engagement of human rights and require
more detailed reasoning in relation to compatibility with the Human Rights
Act 2004.
This explanatory statement relates to the Gaming Machine
(Club Refuge) Amendment Bill 2022 as presented to the Legislative Assembly.
It has been prepared to assist the reader of the Bill and to help inform debate
on it. It does not form part of the Bill and has not been endorsed by the
Assembly. The statement is to be read in conjunction with the Bill. It is not,
and is not meant to be, a comprehensive description of the Bill.
The purpose of the Gaming Machine (Club Refuge) Amendment Bill 2022 is to create the legislative framework to support clubs to become heat and smoke refuges for local communities.
The Bill amends the Gaming Machine Act 2004 and Gaming Machine Regulation 2004 in the Minister for Gaming’s portfolio.
CONSULTATION ON THE PROPOSED APPROACH
A number of ACT Government Directorates and independent agencies were consulted on the amendments in the Bill.
The Heat and Smoke Refuge Working Group, a sub-group of the Community Clubs Ministerial Advisory Council, was also consulted on the draft Bill.
The proposed amendments reflect comments and feedback received from the stakeholders consulted.
SUMMARY OF AMENDMENTS
Gaming Machine Act 2004
The Bill amends the Gaming
Machine Act 2004 to insert a new section 166B into the Act to provide that
the Minister may declare a club to be used as a refuge in relation to an
emergency or other hazard if the Minister considers it necessary and desirable
to do so. A hazard may include a smoke or extreme heat event.
The impact of heat stress has been identified as a current and ongoing issue
for Australians:
• in Protecting human health and safety during
severe and extreme heat events: A national framework (Commonwealth
Government, November 2011) noted that “heatwaves kill more Australians
than any other natural disasters;” and
• in an article
published by the Australian National University (25 February 2021) it was noted
that “one of the most confronting impacts of climate change is the risk of
more deaths from hot weather. Heat stress can exacerbate existing health
conditions including diabetes, kidney disease and heart disease. Older people
are particularly vulnerable.”
In the ACT the bushfire smoke of
2019-20 was both severe and long lasting. For many people it was impossible to
keep smoke out of their homes. The University of Canberra Living Well in the ACT
Region 2020 survey found that 67% of survey respondents had a lot of smoke in
their homes, and 36% also experience a lot of smoke in the workplace. Including
appropriate clubs as a place of respite for community members may reduce health
risks if a similar event was to occur.
This research indicates the
importance of providing a safe space for vulnerable members of the community to
attend during extreme heat or smoke events, to reduce to risk of heat and smoke
related illness.
ACT clubs are well-placed to provide a space for refuge
for the community during extreme weather events as many club venues are able to
provide access to Heating Ventilation and Air Cooling (HVAC) systems and/or air
conditioning during heat and smoke events that people might not ordinarily have
in their homes. Additionally, clubs generally have long operating hours which
supports their ability to provide a space for community members to attend for
respite during an emergency or other hazard.
The Bill provides that the
Minister may declare a club to be a refuge. New section 166B provides the
legislative basis for clubs to be used as refuges during an emergency or a
hazard for the period that a club refuge declaration is in place. The Bill
also provides that the Minister must take into account any advice of the
emergency services commissioner in making the club refuge declaration. The
requirement to take into account the advice of the emergency services
commissioner is to ensure that the declaration is
consistent with the ACT Emergencies (Emergency Plan) 2014 (No 1), which
is prepared and monitored by the emergency services commissioner pursuant to
section 147 of the Emergencies Act 2004.
The Bill also amends the
sign-in and temporary membership requirements by inserting a new section 54A
(1A) into the Act. Section 54A (1A) allows people (local guests, noting there is
not a membership requirement for interstate guests) to enter the Club without
obtaining a membership while a club refuge declaration is in force for the club.
The purpose of this amendment is to enable people to access the venue as a
refuge during the emergency or hazard when a club refuge declaration is in
force, without requiring them to have a membership or to be signed into the club
to access the venue during that period.
Part 12 of the Gaming
Machine Act 2004 (the Act) provides for community
contributions. A licensee that is a club is required to make community
purpose contributions of at least eight per cent of the net gaming
machine revenue that the club receives in a reporting year.
Community purpose contributions include contributions made by a licensee that is
a club to a stated recipient for a community purpose.
Community purpose
is defined in section 166 of the Act to mean assisting the community or part of
the community in one or more of the ways listed in the Act, such as supporting a
charitable cause. The Bill amends the definition of community purpose in section
166 (1) of the Act to provide that community purpose includes the provision of a
club venue as a refuge while a club refuge declaration is in force. Under
section 165 of the Act, the community includes people living in the ACT
or surrounding region.
The amendment to section 166 (1) of the Act is
intended to support the amendments made to the Gaming Machine Regulation
2004 which allow clubs to claim certain expenses associated with the use of
the club as a refuge while a club refuge declaration is in force, as community
purpose contributions under the Act.
Gaming Machine Regulation 2004
The Bill amends the Gaming Machine Regulation 2004 to enable clubs to claim as community purpose contributions, the expenses associated with:
a) the provision of free non-alcoholic drinks to the club’s members or patrons only while a club refuge declaration is in place, and
b) the cost of forgone membership fees, as a result of the club providing the venue as a club refuge, only while a club refuge declaration is in place.
The provision of free, non-alcoholic drinks to people attending the club refuge a safety measure to ensure that people are hydrated during an extreme weather event such as a heatwave and encourage the consumption of non-alcoholic beverages. It is intended to support the operation of the venue as a refuge to provide respite for vulnerable members of the ACT community during an emergency or other hazard.
International human rights law places obligations on governments to “respect, protect and fulfil” rights. The obligation to respect means governments must ensure its organs and agents do not commit violations themselves; the obligation to protect means governments must protect individuals and groups from having rights interfered with by third parties and punish perpetrators; and the obligation to fulfil means governments must take positive action to facilitate the full enjoyment of rights.
Rights engaged and supported
The amendments to Gaming Machine Act and Gaming Machine Regulation promote the right to life in section 9 of the Human Rights Act 2004 (HRA). Section 9 of the HRA provides that everyone has the right to life. In particular, no-one may be arbitrarily deprived of life. In some circumstances the right to life may give rise to a positive obligation on government to protect those within its jurisdiction from identifiable risks to life, particularly vulnerable cohorts. Where a government is aware of a real and immediate risk to life, it must take reasonable action to protect individuals. This can include an obligation to take reasonable measures and have legal and administrative frameworks in place to provide protection to the community in life-threatening situations, such as in industrial or environmental disasters.
The amendments to the Gaming Machine Act and Gaming Machine Regulation support the right to life by seeking to enhance the availability of basic needs, such as shelter and water in a potentially life threatening emergency. It does this by enabling the Minister to declare clubs to be refuges during an emergency. The amendments allow clubs to be accessible by the ACT community during an emergency (by waiving the membership requirement), and support clubs to provide free non-alcoholic beverages to those using the club while it is a refuge.
The Bill does not limit any rights.
In accordance with section 37 of the Human Rights Act 2004 I have examined the Gaming Machine (Club Refuge) Amendment Bill 2022. In my opinion, having regard to the Bill and the outline of the policy considerations and justification of any limitations on rights outlined in this explanatory statement, the Bill as presented to the Legislative Assembly is consistent with the Human Rights Act 2004.
..........................................................
Shane Rattenbury MLA
Attorney-General
Part 1 Preliminary
This clause provides that the name of the Act is the Gaming Machine (Club Refuge) Amendment Act 2022.
This clause provides for the commencement of the Act. The Act commences on a day fixed by the Minister by written notice.
This clause identifies the legislation that will be amended is the:
• Gaming Machine Act 2004; and
• Gaming Machine Regulation 2004.
Part 2 Gaming Machine Act 2004
New Section 54A (1A)
This clause provides that the requirement for local guests to be a club member or signed in by a member to enter the club, does not apply while a club refuge declaration is in force. This is to allow the public, not just club members or guests, to access the venue while the club is operating as a refuge.Section 166 (1), definition of community purpose, new paragraph (ca)
Under section 166 of the Act, a community purpose contribution includes a contribution made by a licensee for a community purpose. The community purposes are defined in section 166 (1) and include measures such as supporting a charitable cause.
This clause amends the definition of community purpose to include that providing relief or assistance to the community by allowing access to a club for refuge while a club refuge declaration is in force is also a community purpose under the Act.
This clause is intended to create the legislative framework to allow clubs to claim certain expenses relating to the venue’s operation as a club refuge as community purpose contributions under the Act.
This clause inserts a new section into the Act to define the term ‘club refuge declaration’. The new section 166B provides the legislative basis for clubs to become refuges during an emergency or a hazard.
Specifically, the clause provides that the Minister may declare a club to be a refuge in relation to an emergency or a hazard if the Minister considers it necessary or desirable to do so. This declaration by the Minister is referred to as a ‘club refuge declaration’ in the new section 166B (1).
The clause provides that the Minister must take into account any advice of the emergency services commissioner when making the declaration. The requirement to take into account the advice of the emergency services commissioner is to ensure that the declaration is consistent with the ACT Emergencies (Emergency Plan) 2014 (No 1), which is prepared and monitored by the emergency services commissioner pursuant to section 147 of the Emergencies Act 2004.
The clause also provides that the club refuge declaration is a disallowable instrument, has effect for the period stated in the declaration and may be subject to any conditions declared by the Minister.
This clause inserts the new definition of ‘club refuge declaration’ into the Act and provides that ‘club refuge declaration’ is defined at section 166B (1) of the Act.
Part 3 Gaming Machine Regulation 2004
This clause inserts a new section 66A into the Gaming Machine Regulation to
allow club licensees to claim the following contributions as community purpose
contributions if their venue is activated as a club refuge for the period that a
club refuge declaration is in force:
a) the cost of providing free
non-alcoholic drinks to those attending the club venue; and
b) the cost of
foregone membership fees for allowing non-members to access the club venue.
The provision of free, non-alcoholic drinks to people attending the club refuge a safety measure to ensure that people are hydrated during an extreme weather event such as a heatwave. It is intended to support the operation of the venue as a refuge to provide respite for vulnerable members of the ACT community during an emergency or other hazard.
New section 67 (3)
Sub-section 67 (1) (f) of the Gaming Machine Regulation provides that money spent providing free or subsidised meals, snacks, other food or non‑alcoholic drinks to the club’s members or patrons is a business activity by the licensee and therefore is not a community purpose contribution.
This clause inserts a new section 67 (3) into the Gaming Machine Regulation to provide that subsection 67 (1) (f) does not apply for a club used as a refuge while a club refuge declaration is in force. This clause supports the operation of section 66A in the Regulation to allow clubs to claim the cost of providing non-alcoholic drinks as community purpose contributions for the period that a club refuge declaration is in force.
This clause inserts the new definition of ‘club refuge declaration’ into the Regulation and provides that ‘club refuge declaration’ is defined at section 166B (1) of the Act.