(1) The Minister may make a declaration under section 35 only if—
(a) the commission has made a written recommendation to the Minister about the maximum number of gaming machines that should be allowed on all licensed premises in the ACT; and
(b) the Minister has taken the recommendations into account.
(2) The commission may at any time make a recommendation to the Minister under subsection (1) (a) and must make a recommendation if the Minister asks it to do so.
(3) In making a recommendation to the Minister under this section, the commission must have regard to the following:
(a) the use on licensed premises of existing gaming machines;
(b) the public demand for gambling in the community;
(c) the incidence of problem gambling in the community and the availability of support services for problem gamblers.
(4) Subsection (3) does not limit the matters the commission may have regard to.