Appendix F

Appendix F

Bergin Inquiry recommendations

It is recommended that:

1. Section 4A of the Casino Control Act be amended to include an additional object of: Ensuring that all licenced casinos prevent any money laundering activities within their casino operations.
2. The Independent Casino Commission (ICC) be established by separate legislation as an independent, dedicated, stand-alone, specialist casino regulator with the necessary framework to meet the extant and emerging risks for gaming and casinos.
3. The ICC have the powers of a standing Royal Commission comprised of Members who are suitably qualified to meet the complexities of casino regulation in the modern environment.
4. The Casino Control Act be amended to make clear that any decision about a casino licence and any disciplinary action that may be taken against a licensee is solely that of the ICC, and that any term of a regulatory agreement that has been entered into by the Government or the Authority is of no effect to the extent that it purports to fetter any power of the ICC arising under the Casino Control Act.
5. The Casino Control Act be amended to ensure that the casino supervisory levy is paid to the ICC or recognised in the budget of the ICC.
6. The Casino Control Act be amended to make provision for each casino operator to be required to engage an independent and appropriately qualified Compliance Auditor approved by the ICC, to report annually to the ICC on the casino operator’s compliance with its obligations under all regulatory statutes both Commonwealth and State in particular the Casino Control Act, the Casino Control Regulation and the terms of its licence.
7. The Casino Control Act be amended to make provision in respect of the Compliance Auditor’s obligations in line with the following:
   • If the Compliance Auditor, in the course of the performance of the Compliance Auditor’s duties, forms the belief that:
     1. activity within the casino operations may put the achievement of any of the objects of the Casino Control Act at risk; or
     2. a contravention of the Casino Control Act or the regulations or of any other Commonwealth or New South Wales Act regulating the casino operations has occurred or may occur;

     the Compliance Auditor must immediately provide written notice of that belief concurrently to the casino operator and to the ICC.

8. Consideration be given to an amendment to the Casino Control Act to include a provision similar to Singapore legislation for the concurrent reporting by the casino operator of suspicious transactions to AUSTRAC and the ICC.
9. The Authority consider amendment to casino operators’ licences to impose an obligation to monitor patron accounts and perform heightened customer due diligence, the breach of which provisions will be regarded as a breach of the Licence and give rise to possible disciplinary action.
10. The Casino Control Act be amended to impose on casino licensees an obligation that they require a Declaration of Source of Funds for any cash over the amount as determined by the ICC modelled on the reform introduced in British Columbia discussed in Chapter 5.1.
11. The Casino Control Act be amended to prohibit casino operators in New South Wales from dealing with Junket operators.
12. The Casino Control Act be amended to impose on any applicant for a casino licence an express requirement to prove that it is a suitable person by providing to the ICC ‘clear and convincing evidence’ of that suitability. This should apply to all suitability assessments under the Casino Control Act, including in the context of retaining a casino licence or in any five yearly review or for approval as a close associate.
13. The definition of ‘close associate’ under the Casino Control Act be repealed and replaced to mean:
    1. any company within the corporate group of which the licensee or proposed licensee (Licensee) is a member;
    2. any person that holds an interest of 10 per cent or more in the Licensee or in any holding company of the Licensee (‘holding company’ as defined in the Corporations Act 2001 (Cth) so as to capture all intermediate holding companies);
    3. any director or officer (within the meaning of those terms as defined in the Corporations Act) of the Licensee, of any holding company, or of any person that holds an interest of 10 per cent or more in the Licensee or any holding company; and
    4. any individual or company certified by the Authority as being a ‘close associate’.
14. The Casino Control Act be amended to include a provision that the cost of the investigation and determination of the suitability of any close associate of any applicant for a casino licence or any existing casino licensee be paid to the ICC in advance of the investigation and determination in the amount assessed by the ICC. Such amendment should include a provision for repayment of any over-estimate or payment of any shortfall against the estimate made by the ICC before the publication of the ICC’s determination.
15. Item 4 of Schedule 1 of the Casino Control Act be amended to ensure that any transaction involving the sale or purchase of an interest in an existing licensee or any holding company of a licensee which results in a person holding an interest of 10 per cent or more in a licensee or holding company of the licensee is treated as a ‘major change’ event.
16. The Casino Control Act be amended to provide that a person may not acquire, hold or transfer an interest of 10 per cent or more in a Licensee of a casino in New South Wales or any holding company of a Licensee without the prior approval of the ICC.
17. An amendment be made to section 34 of the Casino Control Act to permit the regulator to apply to the Court for an injunction to restrain ‘any person’ in respect of a breach of the above recommended provision or to obtain appropriate orders in connection with an interest acquired, held or transferred in breach of the provision.
18. The ‘gaming and liquor legislation’, as defined in section 4 of the Gaming and Liquor Administration Act 2007 (NSW) be reviewed for the purpose of considering amendments to ensure clarity and certainty in relation to the powers to be given to the new independent specialist casino regulator and consequential enactment of amendments to relevant legislation.
19. In any legislative review and/or consideration of legislative powers for the ICC, it would be appropriate to consider an express provision to include ASIC as one of the relevant agencies to which the ICC may refer information. It would also be appropriate to consider the inclusion of any other relevant agency not already expressly included in the legislation.