On 25 June 2021, the Victorian Commission for Gambling and Liquor Regulation heard an application by Jayeesar Pty Ltd to increase the number of pokies at the Robin Hood Hotel (City of Ballarat) from 20 to 28.
The City of Ballarat opposed the application but did not appear at the hearing.
On 19 July 2021, the commission refused the application.
On 16 August 2021, the commission published the reasons for its decision to refuse the application.
Under section 3.4.20(1)(c) of the Gambling Regulation Act 2003, the Commission is required to weigh the likely positive social and economic impacts of an application against the likely negative social and economic impacts. The test will be satisfied if, following the weighing of any likely impacts, the Commission is satisfied that the net economic and social impact of approval on the well-being of a relevant community will be either neutral or positive. This is known as the 'no net detriment' test.
After considering the economic benefits of the application and balanced against the economic disbenefits, the commission considered there was likely to be a neutral to slightly positive economic impact if the application was granted.
After considering the social benefits of the application balanced against the social disbenefits, the commission considered there was likely to be a slightly positive social impact if the application was granted
After consideration of the material before it, including the evidence provided at the hearing, the commission was satisfied that the social and economic impact on the well-being of the Ballarat community would not be detrimental. Accordingly, the pre-condition set out in section 3.4.20(1)(c) of the Gambling Regulation Act 2003 was satisfied.
Under the Gambling Regulation Act 2003, the commission retains an ultimate discretion whether to grant or refuse an application, once the mandatory preconditions set out in section 3.4.20(1) have been found to be satisfied.
In exercising its discretion whether or not to approve an application, the commission may take into account relevant matters. These include broader policy considerations, drawn from the content and objectives of the Gambling Regulation Act 2003 as a whole.
The commission noted that the 'policy context' of the Gambling Regulation Act 2003 is referenced through a number of principles set out in the second reading speech for the Bill, including:
- accepting gambling is a valid activity for many Victorians who are entitled to expect ongoing high standards of service, transparency and accountability from the gambling sector
In deciding whether to exercise its discretion to refuse to grant its approval to the application, the Commission considered it not only may, but should, give appropriate weight to relevant events in the past and to stated intentions for the future.
In this particular application, the commission referred to the undertaking made by the applicant as part of its 2012 application (to install 20 pokies at the Robin Hood Hotel) to pay community contributions in the amount of $50,000 per year. Since 2012/13, the applicant had made community contributions of approximately $120,000, which represents an underpayment of the promised community contributions of approximately $280,000.
The issue of this underpayment was raised at the hearing, together with any commitment by the applicant to repay these outstanding arrears. Overall, and in considering the applicant’s evidence as a whole, the commission found that the applicant did not make any commitment to pay the outstanding amounts of community contributions as part of this application. The applicant only committed to make payments of the Existing Contribution on a prospective, rather than retrospective, basis.
In making its decision to exercise its discretion, the commission "considers that those who operate in the gambling sector do so pursuant to a social, as well as a regulatory, licence. This failure to meet its social, if not legal, obligations to pay the Existing Contributions, together with a non-commitment to rectify such a failure as part of this Application, is found, on balance, to be contrary to the broad policy principles of the Gambling Regulation Act 2003 outlined in the second reading speech ..."
Further, "... in the present circumstances the Commission has come to the view that the level of accountability Victorians are entitled to expect of a licensee in the position of the Applicant is greater than has been demonstrated. Accordingly, the Commission considers that the exercise of its discretion to refuse to approve the Application is consistent with furthering the objects of the Gambling Regulation Act 2003 and the broader policy principles underpinning it. Having regard to these above considerations, the Commission considers that this is one of those relatively rare or exceptional cases where the ultimate discretion militates against an approval despite the ‘no net detriment’ test having been satisfied."
On the material that was put before it, the commission determined that, despite the mandatory pre-conditions for approval set out in section 3.4.20(1) having been satisfied, it was appropriate for the commission to exercise its discretion in this matter and refuse the application.