Wagering and Gaming Contracts in New Zealand

Abstract

The law of gaming and wagering contracts in New Zealand has a long and complex history which pre-dates the birth of this nation by almost two centuries. The Gaming Act 1908 (N.Z.) is a consolidating statute, but ss.69, 70 and 71, the enactments having specific application in this area, fall far short of providing a complete code of the law. English statutes enacted in the reigns of Charles II (1664), Anne (1710) and William IV (1835) have always been, and continue to be in force in this country, and indeed, their survival here has been more complete than in England where many of their provisions have been excised by the process of legislative repeal. The New Zealand law of gaming and wagering contracts is very much a product of the English experience for the English enactments in force here are in turn supplemented by New Zealand provisions which have been largely copied from English Gaming Acts of 1845 and 1892. But the New Zealand Legislature has not been completely lacking in imagination. Section 71 of the Gaming Act 1908 (N.Z.) has no counterpart in the English statutes, and sections 69 and 70 of the New Zealand Act both contain subtle, but significant differences, to their English equivalents. However, although New Zealand law in this area is modelled on that of England, there the similarity ends. English law in existence and applicable to the circumstances of the Colony of New Zealand on the 14th of January 1840 was declared to be in force in New Zealand by the English Laws Act, 1858 (N.Z.). That Act did not, however, apply subsequent English enactments, and substantial reforms to the law of gaming and wagering contracts effected by the gaming Act, 1845 (U.K.) were not adopted in New Zealand until the colonial Gaming and Lotteries Act was enacted in 1881. The English Act of 1845 replaced the gaming contract provisions of the Act of Anne (1710) and repealed all but those securities provisions of that Act that had been modified by the Gaming Act, 1835 (U.K.) Thus, within a period of five years from the inception of the colony, New Zealand was applying English gaming laws that were more than two centuries old whilst the English Courts were faced with the prospect of construing a brand new Act. Thirty six years later the colonial legislature adopted verbatim the contract provisions in the Imperial Act of 1845. But by an apparent over-sight the colonial draftsman failed to effect the substantial repeals of the Acts of 1664 and 1710 the English Act had done. But that was only the first of the colonial errors. A further English Act in 1892 was copied and enacted by the colonial legislature in 1894 but with an appendage that demonstrated that the New Zealand legislature had not fully understood the full import of the English measure. This created difficulties of interpretation which were only compounded by a further error of the draftsman of the 1881 Act when he mistakenly copied s.6 of the Betting Houses Act 1853 (U.K.) into s.34 of the former Act without realising the significance of doing so. The 1894 Act also introduced what is now s.71 of the 1908 Act, a provision the reason for the enactment of which has remained unexplained to the present day. When a consolidation of the Colonial Acts was effected by the Gaming Act 1908 the law of gaming and wagering contracts was already in a state of considerable confusion. That confusion was, of course, carried into that Act, but it did not end there and indeed can be said to have gained a new dimension when, as recently as 1970, the New Zealand legislature enacted the Illegal Contracts Act. The New Zealand law of gaming and wagering contracts is largely a product of misunderstandings and errors that occurred when legislative attempts were made to re-enact and effect modifications of the English statutes in this country. In this work the writer seeks to identify the points of departure and to find a rational basis for the law of gaming and wagering contracts and this investigation proceeds in the context of a recognised need for proposals for reform. To this end, in chapters 1 and 2 the social climate in which the Acts of 1664, 1710, 1835 and 1845 are enacted, and their purpose and scope, is identified. In chapter 3 the case for the proposition that the Acts of 1664, 1710 and 1835 are in force in New Zealand is made out and this is followed in chapter 4 by an attempt to explain the motivation behind the enactment of the colonial Acts of 1881 and 1894. Included in this chapter is an outline of the difficulties inherent in both the language of these Acts, and the construction applied to them by the Courts, Chapter 5 is devoted to ascertaining the actual scope of the law of gaming and wagering contracts in New Zealand today and in the penultimate chapter the Impact upon, and the implications for that law, of the Illegal Contracts Act 1970 is discussed. Each section is, where appropriate, accompanied by specific proposals for reform, and those proposals are brought together in summary form in chapter 7.