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Jim Evans: Casino deal is against spirit of law

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Ad hoc amendments will make one law for one set of people, while having another for others.

The SkyCity casino/convention centre deal may be against the spirit of our constitution depending on how it is handled.
The SkyCity casino/convention centre deal may be against the spirit of our constitution depending on how it is handled.

From the first announcement, John Key has not been very forthcoming about how he proposes to implement the SkyCity deal. However, it now seems that he will introduce a bill to Parliament.

A brief look at the existing law makes clear that a statute is necessary. The deal couldn't be carried out just by contract, for any such contract would be either illegal or ineffective under current law.

Section 10 of the Gambling Act 2003 says bluntly, "No new casino venue licences may be granted under this act", Section 11 says "A person must not increase the opportunities for casino gambling". It seems likely the Crown would count as a person under this act, since to exclude it would undermine the point of the act.

In any event, under existing law it is not the Crown or any minister of the Crown that can grant licences for gambling. Minor licences can be granted by the Secretary of Internal Affairs - who, for this purpose must act as an independent officer and not under the authority of a minister. However, the sort of licences the casino would need would fall within the ambit of the Gambling Commission - except that they could not be granted because of the two provisions I have mentioned above.

The Gambling Act 2003 is a carefully worked out statute that seeks a balance of different concerns. Broadly, it seeks to prevent and minimise the harm caused by gambling - including problem gambling - while allowing some gambling under various systems of control.

The Government has two choices. But each of them would need to emasculate the carefully worked out structure of the Gambling Act 2003.

The first is to create a new Gambling Act, striking a different balance between the relevant concerns. One would expect that to be done after careful consultation with all relevant parties. One would also expect the statute to apply impartially to all those who might want to seek licences. It would be very hard to draft a statute of this sort that would enable the Government to approve the conference centre/casino proposal. Among other things, a good statute would not leave it up to the Government itself to decide who should get licences and under what terms.

However, the Government doesn't seem to be gearing up for a major review of the current statute; so the second alternative seems more likely.

The second alternative is to pass a special act making ad hoc amendments to the current act that are sufficient to legitimise just this one deal. But that will inevitably be to make one law for one set of people, while having another for others.

I do not, of course, suggest that such a statute would be unlawful. Under our constitution Parliament can make any law it chooses. But I do think that it would be contrary to the spirit of our constitution.

We expect members of Parliament to make laws they believe are a considered and measured response to the problems they address. Of course there is party discipline. But the members of parties, and those who lead them, should also believe that they are proposing laws that are appropriate responses to the problems they are addressing. Additionally, we expect Parliament to make laws that are impartial between different citizens.

Someone will surely ask here: "What about the benefits of the deal? Are these not relevant considerations to be weighed?" The answer is that they are the wrong sort of considerations to weigh in making a general law.

Assume the Government believes it is good for New Zealand as a whole to open the country to more gambling so as to improve the economy. Suppose it thinks that this good outweighs any harm that extra gambling will do. If it believes these things firmly enough it should pass a general statute that would have that effect.

If the Government proposed a statute of that sort, I would not think it wise. But I would not object to it as against the spirit of our constitution. What is wrong with the sort of statute I think is likely to be proposed is that it will make law just to promote one particular deal. Simply put, the capacity of a government to get bills through a Parliament should not be used as a bargaining chip to promote a commercial deal. As an administration, the Government sometimes has to bargain. As a proposer of laws, it should propose and defend impartial measures that it believes are for the common good.

That is why I think that the casino/convention centre deal is against the spirit of our constitution.

Jim Evans is emeritus professor of law at the University of Auckland.

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