The Court of Appeal upheld the High Court’s declaration that a non-statutory process that allowed pokie machine operators to relocate was unlawful under the Gambling Act 2003.
The Gambling Act 2003 (“Act”) imposes established stringent regulations on businesses offering ‘Class 4 gambling machines’ commonly known as pokies. Among other things, these business must hold both an operator licence and avenue licence.
The Act is intended to minimise gambling harm by controlling the growth of gambling. Reflecting this harm reduction imperative, venue licences limit the number of pokie machines that can operate within a venue.
However, venue licences granted before the commencement of the Act can continue on the same terms as they did prior to the Act, which in many cases allows a greater number of pokie machines to operate than the Act allows. This arrangement is known colloquially as ‘grandparenting’.
There was no provision in the Act for venue relocation at the time of enactment. The only apparent means of relocating avenue was through an application for a new venue licence. Because the venue was new, the benefits of grandparenting would inevitably be lost, thereby discouraging relocations.
The High Court decision ILT Foundation v Secretary for Internal Affairs [2013] NZHC 1330 (“Waikiwi Decision”) clarified this position. In that case, the owner sought a declaration that they could move their premises 200 metres to a neighbouring section via a change to their existing venue licence rather than a new licence application. The court granted the declaration, holding that minor relocations were not changes in “venue” under the Act and could therefore be completed without a new venue licence application. The Waikiwi Decision relied on highly technical distinctions between the definition of “venue”, “place”, and “location” within the scheme of the Act as it stood at the time.
Shortly after the Waikiwi Decision, Parliament amended the Act to provide for local authorities to have the final say over venue relocations under new venue relocation policies (“2013 Amendments”). The amendments were made in apparent ignorance of the Waikiwi Decision.
Subsequently, a number of venue relocations were approved under the criteria set out in the Waikiwi Decision (“Waikiwi Relocations”). 34 applications were made between 2013 and the date of the appeal, with 25 being approved. The average relocation distance was 138m, with one relocation to a site 600m away (on the other side of the Christchurch CBD).
Following a number of changes in approach to Waikiwi Relocations by the responsible regulator, non-profit organisation Feed Families Not Pokies Inc applied to the High Court for a declaration that the Waikiwi Decision had not survived the 2013 Amendments. The Gaming Machine Association Inc (“GMA”) opposed the application.
The High Court granted declarations sought, ruling that Waikiwi Relocations were inconsistent with the intent of the Act following its amendments, which expressly delegated relocation decisions to local authorities. The court reserved its position on how the declaration would apply to venues who had successfully obtained Waikiwi Relocations in the past.
GMA appealed the High Court’s decision to the Court of Appeal.
GMA argued that the High Court misinterpreted the Act and sought a declaration affirming the continued legality of Waikiwi Relocations after the 2013 Amendments. The Court of Appeal rejected this argument and dismissed the appeal, upholding the High Court’s declaration.
The Court clarified that the Waikiwi Decision was a narrow, case-specific exception, not a general framework for venue movement. The test proposed in that decision was too vague to govern broader applications and was never intended to serve as a relocation code.
Before 2013, distinguishing between “venue,” “place,” and “location” was legally viable. The 2013 Amendments, however, introduced a detailed relocation regime that meant this distinction was no longer tenable. In the amended legislation, Parliament intended “venue” to mean the physical place where gambling occurs, and any change in location (however minor) must now follow the statutory relocation process.
Permitting Waikiwi Relocations would undermine the 2013 Amendments’ purpose: enabling local authorities to control venue relocations, particularly to reduce gambling in high-deprivation areas. Waikiwi Relocations bypassed that oversight, relying on criteria far less rigorous than those mandated in local policies. They could allow movement within high-deprivation zones to more commercially attractive sites, contrary to legislative intent. In some cases, they could enable an increase in gaming machines, an outcome fundamentally inconsistent with the Act’s core purpose.
The Court also dismissed GMA’s argument based on the interpretive presumption that Parliament does not overturn the common law without express language to that effect. It explained that this presumption typically applies where legislation might infringe upon established common law rights. In this case, however, grandparenting benefits were rights created entirely by statute, and could be altered accordingly.
The Court dismissed GMA’s appeal, meaning the High Court’s declarations stand. This means that Waikiwi Relocations (whenever they occurred) are unlawful. While the High Court had reserved the position for venues that had Waikiwi Relocations approved prior to judgment, those venue licences are now at risk of judicial review.
As GMA has not sought leave to appeal from the Supreme Court within time, the Court of Appeal’s decision on the matter is final.
For further information on this case or similar issues, please contact Director, Brigitte Morten.
