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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Casino (Burswood Island) Agreement
Amendment Bill 2003
CONTENTS
1. Short title 1
2. Commencement 2
3. The Act amended 2
4. Section 3 amended 2
5. Section 4D inserted 3
6. Section 10 amended 3
7. Sections 11 to 17 inserted 3
8. Schedule 9 inserted 8
page i
215--1
Western Australia
LEGISLATIVE ASSEMBLY
Casino (Burswood Island) Agreement
Amendment Bill 2003
A Bill for
An Act to amend the Casino (Burswood Island) Agreement Act 1985.
The Parliament of Western Australia enacts as follows:
1. Short title
This Act may be cited as the Casino (Burswood Island)
Agreement Amendment Act 2003.
page 1
Casino (Burswood Island) Agreement Amendment Bill 2003
s. 2
2. Commencement
This Act comes into operation on the day on which it receives
the Royal Assent.
3. The Act amended
5 The amendments in this Act are to the Casino (Burswood
Island) Agreement Act 1985*.
[* Reprinted as at 5 April 2002.]
4. Section 3 amended
(1) Section 3 is amended in the definition of "the Agreement" as
10 follows:
(a) by deleting "and" at the end of paragraph (b)(ii);
(b) by inserting at the end of paragraph (b)(iii) --
" and ";
(c) by inserting after paragraph (b)(iii) the following
15 subparagraph --
"
(iv) the Eighth Supplementary Agreement;
".
(2) Section 3 is amended by inserting after the definition of "the
20 Agreement" the following definition --
"
"the Eighth Supplementary Agreement" means the
Eighth Supplementary Agreement, a copy of
which is set out in Schedule 9;
25 ".
page 2
Casino (Burswood Island) Agreement Amendment Bill 2003
s. 5
5. Section 4D inserted
After section 4C the following section is inserted --
"
4D. Eighth Supplementary Agreement ratified and
5 implementation authorised
(1) The Eighth Supplementary Agreement is ratified and
its implementation is authorised.
(2) Without limiting or otherwise affecting the application
of the Government Agreements Act 1979, the Eighth
10 Supplementary Agreement is to operate and take effect
despite any other Act or law and, to the extent that it
amends the entrenched provisions (within the meaning
of section 10), despite section 10.
".
15 6. Section 10 amended
Section 10(2)(b) is amended by deleting "Seventh" and
inserting instead --
" Eighth ".
7. Sections 11 to 17 inserted
20 After section 10 the following sections are inserted --
"
11. Interpretation in sections 12 to 17
(1) In sections 12 to 17 --
"approved company" means a company approved
25 under clause 17A of the Agreement;
"Commission" has the same meaning as in the Casino
Control Act 1984;
"probity approval notice" means a notice issued by
the Commission under section 14.
page 3
Casino (Burswood Island) Agreement Amendment Bill 2003
s. 7
(2) For the purposes of sections 12 to 17 a person has a
relevant interest in a share if, under sections 608
and 609 of the Corporations Act 2001 of the
Commonwealth, the person has a relevant interest in
5 the share.
12. Certain shareholdings to be notified to the
Commission
(1) If a person becomes the holder of a relevant interest in
more than 10% of the voting shares of an approved
10 company, the approved company must notify the
Commission in writing.
(2) The notice must be given to the Commission within
30 days after the day on which the company becomes
aware that the person has become the holder of a
15 relevant interest in more than 10% of the shares.
Penalty: $10 000.
13. Certain shareholders to be approved by the
Commission
(1) A person must not have a relevant interest in more than
20 10% of the voting shares of an approved company unless
the person holds a probity approval notice issued --
(a) within 90 days before; or
(b) within 90 days after,
the day on which the person becomes the holder of a
25 relevant interest in more than 10% of the shares.
(2) The Commission may extend the period in
subsection (1)(b) before it expires.
(3) If the Commission extends the period in
subsection (1)(b) it must promptly notify the approved
30 company of the fact.
(4) A contravention of subsection (1) is not an offence.
page 4
Casino (Burswood Island) Agreement Amendment Bill 2003
s. 7
14. Probity approval notices, application for etc.
(1) A person who is or intends to become the holder of a
relevant interest in more than 10% of the voting shares
of an approved company may apply for a probity
5 approval notice.
(2) The application must be made to the Commission in a
form approved by the Commission.
(3) The applicant must provide the Commission with any
information that the Commission reasonably requires
10 when dealing with the application.
(4) The Commission may make any investigations it
considers necessary or desirable for the purposes of
dealing with the application.
(5) Without limiting the matters that the Commission may
15 investigate under subsection (4) the Commission may
investigate any matter it considers necessary or
desirable to inform itself of the reputation and financial
status of the applicant.
(6) The Commission may require an applicant to pay the
20 reasonable costs of the Commission's investigations in
connection with dealing with the application.
(7) The Commission may issue the applicant with a
probity approval notice if it is satisfied that the
applicant is a suitable person to hold a relevant interest
25 in more than 10% of the voting shares of an approved
company.
(8) The Commission may refuse to issue a probity
approval notice if the applicant has not provided
information required under subsection (3) or has not
30 paid the costs required under subsection (6).
page 5
Casino (Burswood Island) Agreement Amendment Bill 2003
s. 7
(9) If the Commission issues a probity approval notice it
must promptly give the approved company a copy of
the notice.
15. Probity approval notice, cancellation of
5 (1) If --
(a) after a probity approval notice is issued to a
person; and
(b) before the person becomes the holder of a
relevant interest in more than 10% of the voting
10 shares of an approved company,
the Commission is not satisfied the person is a suitable
person to hold a relevant interest in more than 10% of
the voting shares of an approved company, the
Commission may cancel the probity approval notice.
15 (2) If the Commission cancels a probity approval notice it
must immediately serve the person with a written
notice of the cancellation.
(3) The cancellation of a probity approval notice has effect
when a notice is served under subsection (2).
20 (4) If the Commission cancels a probity approval notice it
must promptly notify the approved company of the
fact.
16. Intention to order disposal of shares, notice of
(1) If the Minister is of the opinion that the power under
25 section 17(1) should be exercised in respect of a
person, the Minister must serve the person with a
written notice --
(a) stating that the Minister proposes to exercise
the power;
30 (b) specifying the reasons for the Minister's
opinion; and
page 6
Casino (Burswood Island) Agreement Amendment Bill 2003
s. 7
(c) advising the person of the person's entitlement
under subsection (2) and the requirement under
subsection (3).
(2) A person served with a notice under subsection (1) may
5 serve the Minister with written reasons as to why the
power conferred on the Minister under section 17(1)
should not be exercised.
(3) The reasons must be served on the Minister within
14 days after the day on which the person is served
10 with the notice under subsection (1).
(4) The Minister must consider any reasons served under
subsections (2) and (3).
17. Certain shareholders may be ordered to dispose of
shares
15 (1) If the Minister, on the advice of the Commission, is
satisfied --
(a) that a person has contravened section 13(1); or
(b) that the holder of a probity approval notice is
no longer a suitable person to hold a relevant
20 interest in more than 10% of the voting shares
of an approved company,
and the Minister has complied with section 16, the
Minister may serve the person with a written notice
requiring the person --
25 (c) to dispose of as many of the shares as are
necessary to reduce the number of shares in
which the person has a relevant interest to not
more than 10% of those voting shares; and
(d) to do so within the period specified in the
30 notice.
(2) A notice issued to a person under subsection (1) must
be served on the person within 28 days after the day on
page 7
Casino (Burswood Island) Agreement Amendment Bill 2003
s. 8
which the person was served with a notice under
section 16.
(3) A person served with a notice under subsection (1)
must comply with the notice.
5 Penalty: $30 000.
Penalty for each separate and further offence
committed by the person under section 71 of the
Interpretation Act 1984: $30 000.
(4) If the Minister issues a notice under subsection (1) the
10 Minister must promptly give the approved company a
copy of the notice.
(5) If the Minister issues a notice under subsection (1) a
report of the matter must be included in the annual
report submitted by the accountable authority of the
15 Commission under section 66 of the Financial
Administration and Audit Act 1985.
".
8. Schedule 9 inserted
After Schedule 8 the following Schedule is inserted --
20 "
Schedule 9
[s. 3]
Casino (Burswood Island) Agreement
EIGHTH SUPPLEMENTARY AGREEMENT
25 THIS AGREEMENT made the 18 day of June 2003
BETWEEN:
THE HONOURABLE NICHOLAS DAVID GRIFFITHS MLC,
the Minister of the Crown for the time being charged with the
administration of the Control Act acting for and on behalf of the State
page 8
Casino (Burswood Island) Agreement Amendment Bill 2003
s. 8
of Western Australia and its instrumentalities from time to time ("the
State")
AND
BURSWOOD NOMINEES LTD (ACN 078 250 307) C/- Burswood
5 International Resort Casino, Great Eastern Highway, Burswood in the
State of Western Australia as trustee of the Burswood Property Trust
("the Trustee")
AND
BURSWOOD RESORT (MANAGEMENT) LIMITED
10 (ACN 009 396 945) C/- Burswood International Resort Casino, Great
Eastern Highway, Burswood in the State of Western Australia as
manager of the Burswood Property Trust ("the Manager") of the
third part.
RECITALS:
15 A. The State, the Trustee (by virtue of the West Australian Trustees
Limited (Merger) Act 1989) and the Manager (by virtue of a deed
of retirement and appointment of manager made on
13 August 1990 and a deed of assumption and covenant made on
13 November 1991) are parties to an agreement dated
20 20 February 1985 ratified by and scheduled to the Casino
(Burswood Island) Agreement Act 1985 as amended by:
(a) the Supplementary Agreement made on 14 September 1987;
(b) the Second Supplementary Agreement made on 3 May 1990;
(c) the Third Supplementary Agreement made on
25 13 November 1991;
(d) the Fourth Supplementary Agreement made on
30 March 1992;
(e) the Fifth Supplementary Agreement made on 3 April 1995;
(f) the Sixth Supplementary Agreement made on 22 June 1996;
30 and
(g) the Seventh Supplementary Agreement made on
9 June 1997,
page 9
Casino (Burswood Island) Agreement Amendment Bill 2003
s. 8
which agreement as so amended is referred to in this agreement
as "the State Agreement".
B. The parties have agreed to further amend the State Agreement for
the purpose of more efficiently or satisfactorily implementing or
5 facilitating certain of its objectives.
THE PARTIES AGREE AS FOLLOWS:
Definitions and interpretation
1. Words and expressions defined in the State Agreement when
used in this Agreement have, unless the context otherwise
10 requires, the same meanings as in the State Agreement and the
provisions of clause 2 of the State Agreement as to interpretation
apply to this Agreement.
Variation and operation
2. (a) The State shall introduce and sponsor a Bill in the
15 Parliament of Western Australia to ratify this Agreement
and endeavour to secure its passage as an Act.
(b) The provisions of this Agreement other than this clause
and clause 1 shall not come into operation until the Bill
referred to in sub-clause (a) has been passed by the
20 Parliament of Western Australia and comes into operation
as an Act.
(c) On the said Bill commencing to operate as an Act, this
Agreement shall operate and take effect according to its
terms notwithstanding the provisions of any Act or law of
25 Western Australia.
Clause 2 amended
3. Clause 2 of the State Agreement is amended:
(a) by deleting the definition of "Casino Gross Revenue";
(b) by inserting after the definition of "Casino Gaming
30 Licence" the following definitions-
""Casino Tax" means each of the Electronic Gaming
Machine Tax, the Table Game Tax or the International
page 10
Casino (Burswood Island) Agreement Amendment Bill 2003
s. 8
Commission Business Tax, as the case may be, and
"Casino Taxes" means two or all of them;
"Casino Tax Activity" means gaming by way of Electronic
Gaming Machine, Table Game or International
5 Commission Business;
"Casino Tax Rate" means the relevant per centum rate
used for determining a Casino Tax as specified in
Schedule C or as determined under clause 23(6) from time
to time;
10 "Casino Taxable Revenue" where used in relation to a
particular Casino Tax Activity means all sums, including
cheques and other negotiable instruments whether
collected or not, received in any month from the conduct of
the Casino Tax Activity, less the total of all sums paid out
15 as winnings during that month in respect of the Casino Tax
Activity. For the purposes of this definition:
(a) any sum received for the issue of a chip for the
relevant Casino Tax Activity is a sum received
from the conduct of the Casino Tax Activity and
20 any sum paid out to redeem a chip is a sum paid
out as winnings;
(b) in a case in which the Commission consents to the
extension of credit, the sum value of chips issued in
any month on credit, whether by credit card
25 transaction or otherwise howsoever, shall be deemed
to be sums actually received in that month from the
conduct of the relevant Casino Tax Activity; and
(c) the Casino Taxable Revenue for the relevant
Casino Tax Activity may be a negative amount;";
30 (c) by inserting after the definition of "Drawings" the
following definitions-
""Electronic Gaming Machine" means an Authorized
Game played by means of any electrical, electronic or
mechanical contrivance or machine that is not a Table
35 Game;
page 11
Casino (Burswood Island) Agreement Amendment Bill 2003
s. 8
"Electronic Gaming Machine Tax" means the amount,
which may be a negative amount, determined as follows:
EGMT = (P x EGMR)
Where:
5 EGMT = Electronic Gaming Machine Tax for the relevant
month
P = the per centum specified for Electronic Gaming
Machine Tax in Item 1 of Schedule C for the relevant
period
10 EGMR = the Casino Taxable Revenue for Electronic
Gaming Machines for the relevant month
relevant month = the month for which the Electronic
Gaming Machine Tax is due and payable under
clause 23(1)(a);";
15 (d) by inserting after the definition of "Genting WA" the
following definitions-
""International Commission Business" includes any of
the following activity:
(a) Junket Activity;
20 (b) Premium Player Activity; and
(c) Privileged Player Activity;
"International Commission Business Tax" means the
amount, which may be a negative amount, determined as
follows:
25 ICBT = P x ICBR
Where:
ICBT = International Commission Business Tax for the
relevant month
page 12
Casino (Burswood Island) Agreement Amendment Bill 2003
s. 8
P = the per centum specified for International Commission
Business Tax in Item 1 of Schedule C for the relevant
period
ICBR = the Casino Taxable Revenue for International
5 Commission Business for the relevant month
relevant month = the month for which the International
Commission Business Tax is due and payable under
clause 23(1)(a);
"Junket Activity" means gaming activity limited to Table
10 Games arising from a Junket, and "Junket" has the same
meaning as that term is defined under section 25A of the
Control Act;";
(e) by deleting the definition of "Mandatory Articles" and
inserting the following definition-
15 ""Mandatory Articles" means:
(a) the provisions to be included in the constitution of
an Approved Company in accordance with the
requirements of clauses 17A(2)(b) and 17A(2)(c);
or
20 (b) any other provisions of an Approved Company's
constitution as agreed by the Minister, the
Manager and the Trustee from time to time under
an agreement which has been ratified by an Act;";
(f) by inserting after the definition of "Person" the following
25 definitions-
""Premium Player Activity" means gaming activity
limited to Table Games arising from a patron who is a non
resident of Australia with whom the casino licensee has an
arrangement to pay the patron a commission based on the
30 patron's turnover of play in the casino or otherwise
calculated by reference to such play. For the purpose of
this definition "non resident of Australia" means the
holder of a foreign passport whose principal place of
residence is outside Australia;
page 13
Casino (Burswood Island) Agreement Amendment Bill 2003
s. 8
"Privileged Player Activity" means gaming activity limited
to Table Games arising from a patron who is a non
resident of Australia with whom the casino licensee has an
arrangement for the provision of transport,
5 accommodation, food, drink or entertainment, based on the
patron's turnover of play in the casino or otherwise
calculated by reference to such play. For the purpose of
this definition "non resident of Australia" means the
holder of a foreign passport whose principal place of
10 residence is outside Australia;";
(g) by inserting after the definition of ""State" or "Western
Australia"" the following definitions-
""Table Game" means:
(a) a game identified in Schedule D;
15 (b) the Authorised Game Keno; and
(c) any new game which is authorised under
section 22 of the Control Act and which the
Commission by notice to the Trustee specifies to be
a Table Game;
20 "Table Game Tax" means the amount, which may be a
negative amount, determined as follows-
TGT = P x (TGR ICBR)
Where:
TGT = Table Game Tax for the relevant month
25 P = the per centum specified for Table Game Tax in Item 1
of Schedule C for the relevant period
TGR = the Casino Taxable Revenue for Table Games for
the relevant month
ICBR = the Casino Taxable Revenue for International
30 Commission Business for the relevant month
relevant month = the month for which the Table Game
Tax is due and payable under clause 23(1)(a);"; and
page 14
Casino (Burswood Island) Agreement Amendment Bill 2003
s. 8
(h) under the heading "Interpretation"-
(i) by deleting the full-stop from paragraph (vi) and
substituting "; and"; and
(ii) by inserting a new paragraph (vii)-
5 "a month is to a calendar month."
Clause 17 amended
4. Clause 17(1) of the State Agreement is amended by deleting
"Memorandum and Articles of Association" from clause 17(1)(e),
clause 17(1)(ea) and their headings and in each case, substituting
10 "constitution".
5. Clause 17(1) of the State Agreement is amended:
(a) by inserting after clause 17(1)(eb) the following new
clauses-
"(ec) if a Person becomes the holder of a relevant
15 interest in more than 10% of the voting shares of
an Approved Company, the Approved Company
must notify the Commission in writing within
30 days after the day on which the Approved
Company becomes aware that the Person has
20 become the holder of a relevant interest in more
than 10% of the voting shares;
(ed) if an Approved Company becomes aware that a
contravention of the Mandatory Articles contained
in its constitution has occurred, then unless agreed
25 by the Commission the Approved Company must
promptly take action, to the fullest extent permitted
by its constitution, to rectify the contravention;";
(b) by inserting after clause 17(2) the following new clause-
"(3) For the purposes of sub-clause (1)(ea) the Minister
30 approves the proposed amendments to the
constitution of Burswood Limited, an Approved
Company, in the form set out in Schedule E,
provided that such amendments take effect not
earlier than 30 September 2003."; and
page 15
Casino (Burswood Island) Agreement Amendment Bill 2003
s. 8
(c) by inserting after clause 17(3) the following new clause-
"(4) For the purposes of sub-clause (1)(ga) in its
application to Burswood Limited as an Approved
Company, the Minister, the Manager and the
5 Trustee agree that with effect from the date of
amendment of the constitution of Burswood
Limited in accordance with Schedule E , the
provisions of Article 3 as set out in Schedule E
shall be the Mandatory Articles in respect of
10 Burswood Limited."
Clause 17A amended
6. Clause 17A of the State Agreement is amended by deleting
"articles of association" from each of clauses 17A(2)(b) and
17A(2)(c) and in each case, substituting "constitution".
15 7. Clause 17A(2)(b) of the State Agreement is amended by inserting
the words "at the time of approval" after the word "must".
Clause 23 amended
8. Clause 23 of the State Agreement is amended by:
(a) deleting subclause (1)(a) and substituting the following
20 clause-
"(a) to the Treasurer of the State in respect of each and
every month the aggregate of all of the Casino
Taxes, which shall:
(i) accrue daily at the rates from time to time
25 applicable pursuant to Item 1 of Schedule C,
or a notice issued under clause 23(6); and
(ii) be payable in the manner and at the time
specified in Item 2 of Schedule C;";
(b) deleting the words "the aggregate of Casino Gross
30 Revenue" from subclause (1)(c) and substituting the words
"the aggregate Casino Taxable Revenues for all Casino
Tax Activities"; and
page 16
Casino (Burswood Island) Agreement Amendment Bill 2003
s. 8
(c) deleting subclauses (6), (7) and (8) and substituting the
following clauses
"(6) The Minister may, with prospective effect from an
Anniversary Date:
5 (a) at any time after 24 December 2009, review
the Casino Tax Rates for International
Commission Business Tax and Table Game
Tax or either of them; and
(b) at any time after 24 December 2004, review
10 the Casino Tax Rate for the Electronic
Gaming Machine Tax,
by not less than 4 weeks' notice to the Trustee
specifying an alternative Casino Tax Rate or
alternative Casino Tax Rates, as the case may be,
15 and the Anniversary Date on and from which such
alternative rate of the Casino Tax Rate is, or
Casino Tax Rates are, payable.
(6A) If the Minister issues a notice under clause 23(6)
("Review Notice"), then subject to clause 23(7)(c)
20 and clause 23(8), as the case may be, the Casino
Tax Rate for the relevant Casino Tax specified in
the Review Notice will be the rate specified in the
Review Notice and will apply on and from the
Anniversary Date specified in the Review Notice.
25 (6B) Nothing in clauses 23(6) or (6A) prevents the
Minister from issuing a Review Notice in respect of
more than one Casino Tax and those clauses apply
mutatis mutandis if a Review Notice specifies more
than one Casino Tax.
30 (7) If a Review Notice has the effect of increasing a
Casino Tax Rate, it
(a) shall not be given more than once in respect
of any one Anniversary Date;
page 17
Casino (Burswood Island) Agreement Amendment Bill 2003
s. 8
(b) shall not on any one occasion increase the
relevant Casino Tax Rate by more than one
per centum (1%) per annum; and
(c) shall not be given without the consent of the
5 Trustee if the effect of the Review Notice would
be to cause the relevant Casino Tax Rate to
exceed twenty per centum (20%) per annum.
(8) If a dispute shall arise between the Minister and
the Trustee as to whether the effect of a Review
10 Notice under clause 6A would or is likely to have
an adverse impact on the viability of the Burswood
Casino such dispute shall be referred to
arbitration in accordance with clause 33 provided
that pending the determination upon such
15 reference Casino Tax at such higher rate shall be
payable by the Trustee provided further that if the
dispute is decided in favour of the Trustee the State
shall as soon as practicable cause to be repaid to
the Trustee any such additional tax."
20 Clause 36 amended
9. Clause 36(b) of the State Agreement is amended by:
(a) deleting the notice details for the Trustee and substituting
the following-
"Burswood Nominees Ltd
25 C/- Burswood International Resort Casino
Great Eastern Highway
Burswood WA 6100
Facsimile: 08 9470 1789
Attention: Managing Director";
30 (b) deleting the notice details for the Manager and substituting
the following-
"Burswood Resort (Management) Limited
C/- Burswood International Resort Casino
Great Eastern Highway
35 Burswood WA 6100
Facsimile: 08 9470 1789
Attention: Managing Director";
page 18
Casino (Burswood Island) Agreement Amendment Bill 2003
s. 8
(c) deleting the notice details for the Minister and substituting
the following-
"10th Floor
London House
5 216 St Georges Terrace
Perth WA 6000
Facsimile: 08 9222 8951"; and
(d) deleting the notice details for the Commission and
substituting the following-
10 "Gaming Commission of Western Australia
Level 1
Hyatt Centre
87 Adelaide Terrace
East Perth WA 6004
15 Facsimile: 08 9325 1636
Attention: Chairman".
Schedules C, D and E inserted
10. The State Agreement is amended by inserting after Schedule B
new Schedules C, D and E in the form attached to this
20 Agreement.
SCHEDULE C
ITEM 1 CASINO TAX
Electronic Gaming Machine Tax
Period Electronic Gaming Machine Tax
On and from 24 December 2002 17% of Casino Taxable Revenue for
to 23 December 2003 Electronic Gaming Machines
On and from 24 December 2003 18% of Casino Taxable Revenue for
to 23 December 2004 Electronic Gaming Machines
On and from 24 December 2004 20% of Casino Taxable Revenue for
Electronic Gaming Machines
page 19
Casino (Burswood Island) Agreement Amendment Bill 2003
s. 8
Table Game Tax
Period Table Game Tax
On and from 24 December 2002 16% of Casino Taxable Revenue for
to 23 December 2004 Table Games
On and from 24 December 2004 17% of Casino Taxable Revenue for
to 23 December 2006 Table Games
On and from 24 December 2006 18% of Casino Taxable Revenue for
Table Games
International Commission Business Tax
Period International Commission
Business Tax
On and from 24 December 2002 13% of Casino Taxable Revenue for
to 23 December 2004 International Commission Business
On and from 24 December 2004 12% of Casino Taxable Revenue for
to 23 December 2006 International Commission Business
On and from 24 December 2006 11% of Casino Taxable Revenue for
International Commission Business
ITEM 2
1 All Casino Taxes are to be paid to the Treasurer of the State each
5 month, within 8 days after the end of the month.
2 To give effect to the parties' agreement that the Casino Tax Rates
specified in this Schedule C take effect from 24 December 2002:
(a) the Commission will determine the amount equal to all of
the Casino Taxes which would have been payable for the
10 period commencing 24 December 2002 and concluding on
the last day of the month within which this Agreement
takes effect, if this Agreement had taken effect on
24 December 2002;
(b) if the amount calculated under paragraph 2(a) of this
15 Item 2 is more than the actual amount paid by the Trustee
under clause 23(1)(a) of the State Agreement for the period
referred to in paragraph 2(a), then the Trustee must pay the
difference between the two amounts to the Treasurer at the
page 20
Casino (Burswood Island) Agreement Amendment Bill 2003
s. 8
same time and in the same manner as the next monthly
payment is due under clause 23(1)(a); and
(c) if the amount calculated under paragraph 2(a) of this
Item 2 is less than the actual amount paid by the Trustee
5 under clause 23(1)(a) of the State Agreement for the period
referred to in paragraph 2(a), then the difference between
the two amounts shall be set off against monthly payments
due under clause 23(1)(a) until it has been set off in full.
SCHEDULE D
10 TABLE GAMES
Baccarat
Big and Small
Blackjack
Caribbean Stud Poker
15 Craps
Fan Tan
French Boule
Mini Baccarat
Mini Dice
20 Money Wheel
Multiple Action Blackjack
Pai Gow Poker
Burswood Manila
Competition Burswood Manila
25 Five Card Stud
Competition Five Card Stud
Six Card Stud
Competition Six Card Stud
Seven Card Stud
30 Competition Seven Card Stud
Draw Poker
Competition Draw Poker
Draw Poker Ante
Competition Draw Poker Ante
35 Manila
Competition Manila
American Roulette
Tournament American Roulette
page 21
Casino (Burswood Island) Agreement Amendment Bill 2003
s. 8
Super Pan 9
Tournament Baccarat
Tournament Baccarat (Burswood)
Tournament Blackjack
5 Tournament Two Up
Two Up Coins
Two Up Dice
Progressive Blackjack
Pai Gow Dominoes
10 Pontoon
SCHEDULE E
PROPOSED AMENDMENTS TO THE CONSTITUTION OF
BURSWOOD LIMITED
The constitution of Burswood Limited is amended by deleting
15 Article 3 and substituting the following Article 3:
"3 REQUIREMENTS OF THE STATE AGREEMENT
Interpretation
3.1 In this Article 3:
(a) State Agreement means the agreement referred to in the
20 Casino (Burswood Island) Agreement Act 1985;
(aa) probity approval notice in relation to a person means a
notice served on the Company in respect of that person
under section 14(9) of the Casino (Burswood Island)
Agreement Act 1985;
25 (ab) approval cancellation notice in relation to a person means
a notice served on the Company in respect of that person
under section 15(4) of the Casino (Burswood Island)
Agreement Act 1985;
(ac) probity review period in relation to a person means a
30 period of 90 days, or such longer period as the
Commission may allow under section 13(2) of the Casino
(Burswood Island) Agreement Act, after the person
becomes the holder of a relevant interest in Shares that
page 22
Casino (Burswood Island) Agreement Amendment Bill 2003
s. 8
represent more than 10% of the voting Shares in the
Company;
(ad) section 17 notice in relation to a person means a notice
served on the Company in respect of that person under
5 section 17(4) of the Casino (Burswood Island) Agreement
Act;
(b) Commission, Commission's Nominated Representative
and Minister have the same meaning as in the State
Agreement;
10 (c) Australian citizen, foreign person and relevant interest
have the same meaning as in Schedule B to the State
Agreement; and
(d) a reference to the requirements of the State Agreement
includes the provisions and restrictions that must be
15 included in this Constitution under clause 17 of the State
Agreement.
Background
3.2 The State Agreement requires this Constitution to comply with
certain requirements. These requirements include restrictions
20 on the acquisition and ownership and voting of Shares.
Accordingly, it is necessary to regulate these matters in the
manner set out in this Article 3. Except as set out in
Articles 3.6 to 3.9A inclusive, Shares in the Company may be
acquired, owned, and the voting rights in respect of those
25 Shares may be exercised, in any manner permitted by the other
provisions of this Constitution, the Corporations Act and the
Listing Rules.
3.3 The Company's compliance with the Listing Rules and the
granting of CHESS approval for its securities may limit the
30 Company's ability to restrict registration of transfer of
Company Securities prior to the Company being satisfied that
there would be no breach of the requirements of the State
Agreement. Accordingly, this Article 3 contains provisions
consistent with the requirements of the State Agreement which
35 entitle the Directors in certain circumstances to deprive a person
of rights and powers in relation to Company Securities
page 23
Casino (Burswood Island) Agreement Amendment Bill 2003
s. 8
registered in a person's name and to order the divestiture of
Company Securities.
3.4 The Company, its members and holders of Company Securities
acknowledge and recognise that the exercise of the powers
5 given to the Company and its Directors under this Article 3 may
cause individual members and holders of Company Securities
considerable financial disadvantage, but the members, holders
of Company Securities and Company acknowledge that such a
result is necessary to enable the Company to comply with the
10 requirements of the State Agreement.
3.5 The powers conferred under this Article 3 are to be interpreted
widely. In exercising the powers under this Article 3, the Directors
are entitled to have sole regard to the interests of the Company and
may disregard any loss or disadvantage that may be suffered by
15 individual members or holders of Company Securities affected by
the exercise of those powers. Members and holders of Company
Securities acknowledge that they have no right of action against
the Directors or the Company for any loss or disadvantage incurred
by them as a result, whether directly or indirectly, of the Directors
20 exercising the powers pursuant to this Article 3.
Restrictions on ownership of Shares
3.6 A person is not eligible to be issued, acquire or own (including
own jointly) Shares if, as a result of that issue, acquisition or
ownership, foreign persons would have a relevant interest in
25 Shares that represent in total more than 40% of the voting
Shares in the Company. This does not apply to the extent that
the Minister by notice to the Company has exempted any
existing or future holding of Shares by a specified person from
this restriction for a period specified in the notice.
30 3.7 A person is not eligible to be issued Shares if as a result of that
issue an individual person would have a relevant interest in
Shares that represent more than 10% of the voting Shares in the
Company, unless in relation to that person the Company:
(a) has received a probity approval notice;
35 (b) has not received an approval cancellation notice; and
(c) has not received a section 17 notice.
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Casino (Burswood Island) Agreement Amendment Bill 2003
s. 8
3.7A A person is not eligible to own (including own jointly) Shares if
as a result of that ownership an individual person (a "substantial
holder") would have a relevant interest in Shares that represent
more than 10% of the voting Shares in the Company:
5 (a) after the expiry of the probity review period in relation to
that person, unless the Company has received a probity
approval notice in relation to that person; or
(b) at any time after the Company has received an approval
cancellation notice or a section 17 notice in relation to that
10 person.
Voting
3.8 On any vote in respect of the appointment, replacement or
removal of a Director, the votes attaching to any substantial
foreign shareholdings will not be counted in respect of the
15 appointment, replacement or removal of more than one-third of
the Directors who hold office at any particular time, so that at
any particular time not less than two-thirds of the Directors
have been appointed by a resolution of Shareholders in respect
of which no votes attaching to any substantial foreign
20 shareholding was counted.
3.9 For the purposes of Article 3.8, a "substantial foreign
shareholding" is a shareholding of 10% or more of the voting
Shares in the Company in which a particular foreign person has
a relevant interest.
25 3.9A On any vote at a meeting of members or a class of members,
where any individual person holds a relevant interest in Shares
that represent more than 10% of the voting Shares in the
Company and in relation to that person the Company:
(a) has not received a probity approval notice; or
30 (b) has received a section 17 notice,
the votes cast in respect of those Shares will be disregarded to
the extent that they exceed the total number of votes that could
have been cast on that resolution in respect of 10% of the voting
Shares in the Company.
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Casino (Burswood Island) Agreement Amendment Bill 2003
s. 8
Enforcement powers of Directors
3.10 The Directors have the following powers to enable them to enforce
the restrictions referred to in Articles 3.6, 3.7, 3.7A, 3.8 and 3.9A:
(a) the power to do anything necessary to effect the transfer or
5 disposal of Company Securities held by a person in
accordance with Articles 3.21 - 3.25;
(b) the power to remove or limit the right of a person to
exercise voting rights attached to voting Shares in
accordance with Articles 3.27 - 3.29;
10 (c) the power to end the appointment of a person to the office
of Director in accordance with Article 3.26;
(d) the power to suspend the rights to dividends attaching to a
Share; and
(e) the power to require or cause divesture of Company
15 Securities held by a person in accordance with
Articles 3.21 - 3.25.
Change of name
3.11 The Company must not take any action to bring about a change
of the company name under which the Company is registered
20 for the purposes of the Corporations Act to a name that does not
include the word "Burswood", unless the prior approval of the
Minister has been obtained.
Head office
3.12 The head office of the Company must always be located in
25 Western Australia. For this purpose, "head office" means the
place of business of the Company where central management
and control are exercised.
Board of Directors
3.13 Any one Shareholder must not nominate more than one of the
30 Directors unless:
(a) that Shareholder holds more than 10% of the voting shares
in the Company; and
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Casino (Burswood Island) Agreement Amendment Bill 2003
s. 8
(b) the Company has received a probity approval notice, and
has not received a section 17 notice, in relation to that
Shareholder.
3.14 At all times at least two-thirds of the Directors must be
5 Australian citizens.
3.15 At all meetings of the Board of Directors, the Director presiding
at or chairing the meeting (however described) must be an
Australian citizen.
Place of incorporation
10 3.16 The Company must not at any time take any action to become
incorporated outside Australia.
Auditor
3.17 The Company must appoint the Auditor or Auditors of the
Company in accordance with the provisions of the Corporations
15 Act, but no person may be so appointed as Auditor unless that
person's appointment has first been approved by the Minister.
Making information available
3.18 The Company and the Directors must make available for
inspection by the Minister, the Commission or the
20 Commission's Nominated Representative all information held
in respect of the ownership, holdings of Shares and other
Company Securities, Directors or corporate structure of the
Company, and all minutes of meetings of Shareholders and
Directors and other records relating thereto.
25 Right to attend and speak
3.19 The Commission or the Commission's Nominated
Representative is entitled to attend and speak at any meeting of
the Company or its Directors as though it or he or she were a
Shareholder or a Director. Nothing contained in this Article
30 confers on the Commission or the Commission's Nominated
Representative a right to vote.
3.20 The Company must deliver to the Commission a copy of all
notices that are forwarded to Shareholders or Directors of such
meetings in the same manner and at the same time as such
page 27
Casino (Burswood Island) Agreement Amendment Bill 2003
s. 8
notices are forwarded to Shareholders or Directors as the case
may be.
Right to transfer
3.21 The Directors have the right to effect the transfer or disposal of
5 Company Securities held by a person to the extent considered
necessary by the Directors to prevent a possible contravention
or a possible continuation of a contravention of the restrictions
referred to in Articles 3.6, 3.7 and 3.7A.
3.22 If the Directors reasonably believe that circumstances exist
10 which permit them to effect the transfer or disposal of Company
Securities under Article 3.21, the Directors may by notice in
writing ("Sale Notice") to the holder of the Company Securities
specified in the Sale Notice require that, within 30 days of the
date of the Sale Notice (or such other period as specified in the
15 Sale Notice provided that where the period is reduced the ASX
gives its approval to the reduction):
(a) those Company Securities be transferred or disposed of; or
(b) the holder satisfy the Directors that the requirements of
Articles 3.6, 3.7 and 3.7A have not been and will not be
20 contravened.
Right to require information
3.23 A person holding Company Securities must, if required by
notice from the Company, furnish to the Company within
15 days of the date of the notice (or within such other period as
25 the Directors notify, provided that where the period is reduced
the ASX gives its approval to the reduction) a written statement
by that person, or in the case of a corporation by a director or
secretary of that corporation, in a form approved by the
Directors (and if required by the Directors verified by statutory
30 declaration or by other means acceptable to the Directors)
setting out whatever information is in the opinion of the
Directors necessary for the Directors to determine the eligibility
of that person or corporation to continue to hold Company
Securities having regard to the requirements of Articles 3.6, 3.7
35 and 3.7A.
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Casino (Burswood Island) Agreement Amendment Bill 2003
s. 8
Power to disenfranchise and dispose
3.24 If a person fails to comply with a requirement of Articles 3.22
or 3.23 and the Directors know of such failure:
(a) the Directors may, at any time, declare by notice in writing
5 ("Suspension Notice") to the person who is the holder of
the Company Securities that the voting interests, dividend
interests and winding up interests that the holder is entitled
to (under this Constitution or by any law) in relation to
those Company Securities that the Directors believe are or
10 may be held in breach of Article 3.6, 3.7 or 3.7A are, to the
extent declared in the notice, suspended from the date of
the Suspension Notice until the Company Securities are
disposed of in accordance with clause 3.22 or until a
written statement or statutory declaration or both is
15 provided as required by Article 3.23; and
(b) in the case of a person failing to comply with Article 3.23 -
if within 15 days of the date of a Suspension Notice the
relevant written statement or statutory declaration or both
has not been provided, the Directors may give notice in
20 writing ("Disposal Notice") to the holder of the Company
Securities requiring that the Company Securities (or some
of them) must be transferred or disposed of within 30 days
of the date of the Disposal Notice (or such other period as
is specified in the Disposal Notice provided that where the
25 period is reduced the ASX gives its approval to the
reduction).
3.25 If a notice under Article 3.22 or 3.24(b) is not complied with by
the holder of the Company Securities within the time limit
specified, the Directors may appoint a person to execute any
30 documents and implement any procedures that may be required
to procure the transfer or disposal of the Company Securities on
behalf of the holder and to receive and give a good discharge
for the purchase price. The Company Securities are to be sold
as part of the ordinary trading on the ASX and the Directors are
35 to use reasonable endeavours to obtain a fair and reasonable
purchase price. The net proceeds of any transfer or disposal
under this Article must be paid to the person who held the
Company Securities, provided that the person has delivered to
page 29
Casino (Burswood Island) Agreement Amendment Bill 2003
s. 8
the Company such documents or information as may be
reasonably required by the Directors. Upon the name of the
transferee being entered in the Register in purported exercise of
the powers under this Article, the validity of the transfer or
5 disposal may not be challenged by any person.
Composition of Board
3.26 If at any time the composition of the Board of Directors is or
may become inconsistent with Articles 3.13 or 3.14, or has been
affected by a resolution passed in circumstances where the
10 voting exclusion in Articles 3.8 or 3.9A has not been applied or
has not been applied properly, the Directors may:
(a) appoint one or more new Directors under Article 14.11; or
(b) convene a general meeting to consider one or more
resolutions to remove or appoint a Director; or
15 (c) subject to the Corporations Act take such steps as are
available to them to remove a Director,
as they consider necessary to prevent a possible contravention
or a possible continuation of a contravention of the
requirements of this Article 3.
20 Right to vote
3.27 The Directors have the right to prevent the votes attaching to
Shares being exercised or counted in circumstances where that
is considered necessary by the Directors to give effect to the
provisions of Articles 3.8 or 3.9A.
25 3.28 A person holding Company Securities must, if required by
notice from the Company, furnish to the Company within
15 days of the date of the notice (or within such other period as
the Directors notify, provided that where the period is reduced
the ASX gives its approval to the reduction), a written statement
30 by that person, or in the case of a corporation by a director or
secretary of that corporation, in a form approved by the
Directors (and if required by the Directors verified by statutory
declaration or by other means acceptable to the Directors)
setting out whatever information is in the opinion of the
page 30
Casino (Burswood Island) Agreement Amendment Bill 2003
s. 8
Directors necessary for the Directors to determine the eligibility
of that person or corporation to have its votes counted.
3.29 If a person fails to comply with a requirement of Article 3.28
and the Directors know of such failure, the Directors may,
5 within a reasonable time, declare by notice in writing to the
person who is the holder of the Company Securities that some
or all of the voting rights that the holder is entitled to in relation
to Company Securities are, to the extent declared in the notice,
suspended from the date of the Suspension Notice until a
10 written statement or statutory declaration or both is provided as
required by Article 3.28.
Application of Article 3
3.30 To the extent of any inconsistency, the provisions of this
Article 3 override the remainder of the Articles in this
15 Constitution.
3.31 The provisions of this Article 3 only apply for so long as and to
the extent necessary to comply with the requirements of the
Casino (Burswood Island) Agreement Act 1985 and the State
Agreement."
20 AS WITNESS the execution of this Agreement by or on behalf of the
parties the day and year first hereinbefore written.
SIGNED by THE HONOURABLE )
NICHOLAS DAVID GRIFFITHS )
MLC ) N Griffiths
25 for and on behalf of the State of )
Western Australia in the presence of: )
B A Sargeant
B A Sargeant
THE COMMON SEAL of )
30 BURSWOOD NOMINEES LTD ) C.S.
(ACN 078 250 307) is duly affixed )
by authority of its directors in the )
presence of: )
page 31
Casino (Burswood Island) Agreement Amendment Bill 2003
s. 8
John W Schaap M J Egan
Signature of authorised person Signature of authorised person
MANAGING DIRECTOR COMPANY SECRETARY
Office held Office held
5 M. J. EGAN
Name of authorised person Name of authorised person
(block letters) (block letters)
THE COMMON SEAL of )
BURSWOOD RESORT ) C.S.
10 (MANAGEMENT) LTD )
(ACN 009 396 945) is duly affixed by )
authority of its directors in the presence )
of: )
John W Schaap M J Egan
15 Signature of authorised person Signature of authorised person
MANAGING DIRECTOR COMPANY SECRETARY
Office held Office held
JOHN W. SCHAAP M. J. EGAN
Name of authorised person Name of authorised person
20 (block letters) (block letters)
".
page 32
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