A ministerial edict forcing the state’s independent gaming regulator to stop prioritising harm minimisation is an overreach of political power and invalid if implemented, according to legal advice delivered to the NSW government.
The embarrassing legal warning has emerged as the Minns government prepares to unveil its long-awaited poker machine policy following years of sustained pressure to curb surging losses, which are due to hit $10 billion in pubs and clubs for the first time later this year.
The government’s impending reform package will rely heavily on some form of facial recognition technology and other voluntary measures. However, it will stop short of endorsing mandatory cashless gaming as recommended by the NSW Crime Commission in 2022.
Poker machines are also expected to be at the centre of a political fight at NSW Labor’s annual conference this weekend, with senior figures from the party’s left and right pushing the government to take the issue more seriously.
Ahead of that showdown, a legal warning commissioned by a leading Sydney charity claims Gaming and Racing Minister David Harris overstepped his powers last July when slapping down Independent Liquor and Gaming Authority chair Caroline Lamb for saying pubs and clubs had “no social licence to rape and pillage the community”.
Her remarks triggered a blunt response from Harris in the form of a rare written ministerial directive.
The directive ordered the authority not to prioritise harm minimisation above several other objectives – including the “balanced development” of the industry – when determining applications by venues to own more poker machines or vary trading hours.
In later remarks in parliament, Harris claimed the authority sometimes “dissuades people from making an investment” and said it was not giving enough consideration to the “viability of the industry”.
The directive was widely seen as a rebuke for Lamb and an attempt to muzzle the regulator from further criticism of the politically influential sector, which pulls billions from NSW punters each year.
The order was leaked to The Daily Telegraph, which proclaimed the minister had slapped down ILGA and Lamb.
However, two pieces of legal advice commissioned by Wesley Mission suggest the ministerial directive is at odds with the overriding Gaming Machines Act because that legislation requires harm minimisation to be a top focus. The advice says the act, not a ministerial directive, is the final word on how the authority makes its decisions.
The advice was provided by leading firm Thomson Geer and silk Dominique Hogan-Doran from 5 Wentworth Chambers.
Wesley Mission chief executive Stu Cameron has written to Harris twice to raise the legal concerns but did not receive a response to his last letter.
The Wesley Mission advice mirrors a recent decision by the NSW Civil and Administrative Tribunal, which shot down the government’s view that ILGA must not prioritise harm minimisation.
Pub operator Blairgrove Pty Ltd claimed in the tribunal that the authority had “erroneously” relied on harm minimisation in knocking back an application to boost poker machines at the Grand Shanghai Hotel in Burwood from 20 to 30.
Refusing the increase, the authority cited a likely increase in gambling harm and abuse due to the high level of gaming intensity and addiction rates in Burwood.
In an apparent challenge to Harris, the authority stated in court the minister’s edict would not influence its decisions on gaming licence applications. It argued the directive could not take the place of overriding legislation, which gives it the right to prioritise harm minimisation if it wishes.
In her judgment, tribunal member Reg Graycar rejected the government’s view that harm minimisation must only be given equal weight to other objectives.
Cameron said NSW Labor had a record of downplaying harm reduction measures.
“The government has all the reasons in the world to prioritise harm minimisation, and for that to drive forward gambling reform in a state where poker machine losses are going to break through $10 billion for the first time ever this calendar year,” Cameron said.
“There isn’t a lack of power. The power is there. It needs to be applied in practice.”
Asked about the Wesley-commissioned legal advice, a spokesperson for the gaming minister said Harris expected the gaming authority would consider and balance all objectives, including harm minimisation, when exercising its functions.
But the spokesperson did not repeat the 2025 ministerial directive’s language that the government wants the authority to give “equal weight” to all objectives when deciding pokie applications.
“ILGA is required to undertake its statutory functions in a manner that promotes public confidence in its decision-making and the conduct of its members,” the spokesperson said.
The authority’s response to questions also suggests it is ignoring the controversial directive. A spokesperson told the Herald: “As ILGA considers each matter on a case-by-case basis, the relevance and weight given to each specific factor will vary depending on the application, the facts and the evidence.”
Gambling reform emerged as a major issue before the last state election after former premier Dominic Perrottet committed to making all poker machines in NSW cashless.
Bevan Shields is a senior writer, and former editor of The Sydney Morning Herald.Connect via email.
