Statutory interpretation – Gambling Act 2003 – natural justice – class 4 venue licence – Invercargill Licensing Trust Foundation v Secretary for Internal Affairs [2013] NZHC 1330 (Waikiwi) – Interpretation Act 1999 – Gambling (Gambling Harm Reduction) Amendment Act 2013 – Legislation Act 2019

Feed Families Not Pokies Aotearoa Incorporated v Secretary for Internal Affairs [2024] NZHC 217.

Feed Families applied successfully for a declaration that the Waikiwi approach wasn’t available following an amendment in 2013 to the Gambling Act 2003. Feed Families is an incorporated society with the purpose “to rid Aotearoa New Zealand of pokie machines as soon as possible, forever, by peaceful and lawful means”.

The Act regulates gaming machines commonly known as pokies in New Zealand. The Secretary for Internal Affairs administers the Act. Operators of pokie machines must have a class 4 gambling licence and a class 4 venue licence. While the secretary grants the licences, the Act requires the relevant territorial authority (TA) to consent to the venue licence and to adopt a policy on class 4 venues. This policy must have regard to the social impact of gambling within its district and specify whether such a venue might be established and its location, and may specify any restrictions on the maximum number of gaming machines that can operate.

The Act originally did not provide for these policies to cover the relocation of venues so the secretary determined this question under a venue’s existing licence. In 2013, the ILT Foundation wished to build a new tavern close to its existing tavern, so it applied for the secretary to make a minor amendment to its licence, noting the changed location of the venue. Retaining the existing licence would mean ILT could operate 18 machines at the new venue rather than nine under a new licence.

ILT sought declarations that the existing venue licence would apply to the new location. The 2013 decision is known as Waikiwi, in which Collins J held that venue and location were not synonymous and the location change was minor. Therefore, the ILT Foundation would not have to apply for a new licence for the venue. The only change would be the building, and the public would think of it as the same venue.

On 14 September 2013, Parliament amended ss 98 and 101 of the Act and inserted s 97A by:

• Introducing a relocation policy to TA policies;
• defining relocation policy;
• establishing the mechanics of the grant of a relocation; and
• requiring TA consent to change a venue.

Despite the amendment, the secretary continued to apply the Waikiwi approach to minor changes until 2018 when they stated it “would not be available where a TA had adopted a relocation policy”. On appeal of a secretary’s decision, the Gambling Commission determined it was bound to apply Waikiwi. Waikiwi relocation requests continued to be approved.

In 2023, Feed Families applied for five declarations clarifying the status of Waikiwi following the 2013 amendment of the Act and a declaration nullifying relocations granted by applying Waikiwi since 14 September 2013.

Applicable principles: purpose and context important to statute interpretation – interpretation of amending legislation includes parent legislation – Select Committee findings relevant to interpretation – those prejudiced must have opportunity to respond to challenges – Ririnui v Landcorp Farming Ltd [2016] NZSC 62.

Held: The Waikiwi approach is not available under the Act as amended in 2013.

The court’s declaration did not invalidate the amended licences granted by the secretary since then.

After 14 years as general counsel for a local authority, Andrea Hilton is now a sole practitioner practising local government law.

Feed Families Not Pokies Aotearoa Incorporated v Secretary for Internal Affairs [2024] NZHC 217.