A second High Court challenge linked to pokies and so-called sinking lid policies has been filed against the Internal Affairs department
The anti-pokie lobby group Feed Families Not Pokies Aotearoa claims the Department of Internal Affairs has allowed venues to hold onto licences to operate the machines when, under the law, they should have been terminated.
“The Gambling Act says that a Class 4 venue licence must be surrendered when a corporate society (or pokie trust) has not conducted Class 4 gambling at a pokie venue for more than four weeks,” spokesperson Colin Bridle said.
“After the licence is surrendered, if any pokie trust cannot get a new venue licence for that venue within six months, it will need a territorial authority consent. If the local authority has a sinking lid policy, it won’t grant the consent and that venue cannot re-open.” READ MORE: * Internal Affairs and Gambling Commission face legal action over pokie relocations * Internal Affairs expands pokie probe with dozens now asked for a ‘please explain’
Bridle said that was how a sinking lid policy was supposed to work but that the Secretary of Internal Affairs frequently used discretionary powers to extend the licence – preventing the sinking lid from having its intended effect.
“We have evidence that the secretary almost always grants these extensions without considering the local authority’s sinking lid policy ... as a result, New Zealand currently has many more pokie venues than it should.”
The same group filed similar proceedings earlier this year linked to the department’s decision to allow venues to relocate and take their existing Class 4 licence with them.
Informally referred to as the Waikiwi precedent, the group's argument is that more than a dozen pokie venues that relocated since 2013 should have been forced to give up at least half of the machines they originally had.
The action relates to a 2013 High Court decision to relocate the Waikiwi Tavern in Invercargill.
However, since the Waikiwi application was filed, Internal Affairs has agreed the relocations were unlawful.
"We haven't got the answers or the outcomes that we've desired and basically, I feel we've been forced into a corner to have to take them to the High Court.” – Colin Bridle
The department's deputy gambling director Ben Gamboni has told licence holders they have until September 21 to file an application if they want it to be considered under the Waikiwi precedent.
“The secretary will not apply the Waikiwi precedent to any application received after 21 September 2023 unless an applicant can establish that they have been unfairly prejudiced by the secretary’s change of position.
“An example of unfair prejudice would be significant costs already incurred by a licence holder at the date of this notice, which the licence holder incurred in anticipation of making an application that relies on the Waikiwi precedent.”
And while it appears the department would not be contesting the argument from Feed Families Not Pokies, the Gaming Machine Association of New Zealand, which represents pokie operators, has since joined as a party.
It has not yet decided if it would also join the new case.
This Waikiwi case will be heard in November, but it’s not yet known whether the court would hear the fresh case at the same time.
Bridle said the group had felt “backed into a corner” when it came to taking the court action.
“Since 2018, I've been dealing with regulatory matters or trying to get answers to a number of cases on things that, from a public health perspective and protecting our community, we haven't got the answers or the outcomes that we've desired and basically, I feel we've been forced into a corner to have to take them to the High Court.”
Bridle had seen the harm from gambling first hand and said it was tragic that policies local councils put in place to try and minimise harm were being ignored.
“When the law is not used to protect but is used as a vehicle to get around something, so that the big boys – the alcohol companies and the pubs and clubs – can work their way around the law with clever lawyers and the department allows them to get away with that, that's shocking; there's no other way to describe it
“They've got money, they've got resources, they've got power, and they have access and for people like myself, we’re shut off to the corners and ... treated like the gum on the bottom of somebody's shoe.”
The group has legal representation via Te Ara Ture, a legal “broker” which puts people in need of assistance in touch with lawyers able to do pro bono work.
Te Ara Ture also assisted in securing representation for the Waikiwi case.
The court has been asked to provide a declaratory judgment for each case, which would clarify and establish the legal rights and obligations for both relocations and the extension of licences.
