Is the game played on the machine a game of chance?
The Commission applies a series of questions to determine whether it considers that a particular game played on a machine is a game of chance or skill. These questions are based on the framework set out in the Act.
Question 1: Is the game played for a prize?
In the Act a ‘prize’ in relation to a gaming machine includes any money, article, right or service won, whether or not described as a prize. The opportunity to play the machine again is not a prize.
If the game is played for a prize then it may amount to gaming for the purposes of the Act, depending on the answers to the following questions.
Where a machine on which a game is played does not offer a prize, other considerations will determine whether it is nevertheless a gaming machine requiring those who manufacture, supply, adapt, repair or maintain it to be licensed.
Question 2: Does the outcome of the game depend entirely on chance?
If the answer is ‘yes’ then the game is clearly a game of chance and, if played by means of a machine, that machine is a gaming machine. An example of a game whose outcome is determined entirely by chance is Roulette.
If the outcome does not entirely depend on chance then it is necessary to proceed to question 3.
Question 3: Does the game contain an element of chance as well as an element of skill?
Subject to question 4, a game in which the outcome or result can be influenced to any appreciable extent by chance is, in the Commission’s view, a game of chance for the purposes of the Act. It follows that the machine on which the game is played is a gaming machine.
It does not matter for these purposes whether the element of chance / luck predominates over the element of skill. Nor does it matter whether the element of chance can be eliminated by superlative skill.
An example of a game which contains both an element of chance and an element of skill is Poker.
Question 4: Is the element of chance involved in the game so small that it should be disregarded?
The Commission recognises, however, that there comes a point where the element of chance is so small that it should be disregarded.
An example of a game where the element of chance should be disregarded is Chess, where the element of chance introduced by determining who is to play as white and black is so small as to be likely to be considered irrelevant.
Question 5: Is the game presented as involving an element of chance?
This question pre-supposes that the game does not in fact involve an element of chance (other than one which would be disregarded under question 4). A game may be considered to be presented as involving an element of chance when it is fraudulently presented as a game of chance (for example ‘chase the lady’ or the ‘three card trick’) but the question of presentation applies more widely. In considering whether a game is presented as involving an element of chance the Commission will take into account the following matters:
- how the game appears to the player
- what the game is called and whether it contains language associated with gambling games
- the livery of the machine and whether it contains symbols or graphics associated with gambling games
- the appearance of the game itself and whether it contains symbols or graphics associated with gambling games, including (but not limited to) the turn of a wheel, the spin of a coin, the roll of a dice, reel bands, or the random selection of numbers
- whether the game involves the player in actions associated with gambling games including (but not limited to) placing chips or markers on numbers, or engaging in prediction
- any contextual indications such as advertising signage or marketing material.
It is important to note that any one of these factors by itself may not be sufficient to classify a particular machine as a gaming machine. For example, the depiction of dice in a game may not by itself necessarily indicate that a game is a gaming machine.
Question 6: Does an exemption apply?
Section 235 (2) of the Act (opens in a new tab) sets out a number of exemptions that can apply to a machine which is designed or adapted for use by individuals to gamble. For example, equipment designed to play bingo would be exempt provided it is used in accordance with a condition attached to a bingo operating licence.
If the answers to the above questions indicate that the game in question is ‘gaming’ as defined in the Act, then a person must hold an appropriate licence to manufacture, supply, install, adapt, maintain or repair the gaming machine, or make it available for use.Previous page
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Last updated: 5 August 2021
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