Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
BROADCASTING SERVICES AMENDMENT
(PROHIBITION OF GAMBLING ADVERTISEMENTS) BILL 2023
EXPLANATORY MEMORANDUM
and
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Circulated by authority of
Zoe Daniel MP
Broadcasting Services Amendment
(Prohibition Of Gambling Advertisements) Bill 2023
OUTLINE
This bill seeks to amend the Broadcasting Services Act 1992 (the Act) to prohibit the
broadcasting of gambling advertisements on certain television and radio broadcasting
services; and to prohibit the provision of gambling advertisements on the streaming outlets
of certain television and radio services. It seeks to achieve a comprehensive ban on
gambling advertising, ending the exploitation of sporting broadcasts to promote gambling
services.
The proximity of gambling advertising to broadcast sport, particularly of the Australian
Football League and Australian Rugby League codes, has become a matter of
considerable community disquiet and concern. Current gambling advertising restrictions,
including measures contained in the Broadcasting Services Act 1992, regulation by the
Australian Communications and Media Authority (ACMA) as well as self-regulation by
broadcasters aimed at limiting children's exposure to gambling products and services
(including for example the promotion of betting odds during live sport broadcasts) have
proved to be increasingly ineffective. The adverse social, financial and mental health
impacts of excessive gambling on individuals, families and the wider community of
gambling activities are widely recognised to be very significant. Despite this gambling
advertising in association with broadcast sport and through social media, sponsorship or
branding from online licenced gambling operators has become pervasive.
This Bill is a direct but proportionate response to the unhealthy relationship that has
developed between major sporting codes and the gambling industry. The goal of gambling
advertisers appears to be to encourage young people to see sport and gambling as
inextricably enmeshed, indeed even as the same thing itself, rather than to enjoy the sport
for itself. . This is an unhealthy trend, readily recognised by the many parents with surveys
showing that as many as three quarters of Australians want gambling advertising banned.
Current restrictions on gambling advertising are riddled with loopholes and caveats; and
the nexus between online gambling and broadcast advertising cannot be underestimated
as advertisements adjacent to sporting events and during news breaks before and after
the sport segment function as 'triggers' for people who can place bets immediately via their
smart phone that is in their hand at the time.
In the past public pressure encouraged the Parliament to introduce national bans on
tobacco and alcohol advertising. Contrary to predictions made at the time, sport in
Australia has thrived since tobacco advertising was banned and alcohol sponsorship
restricted.
A similar national ban on gambling advertising is required. Attempts at regulation have
failed; prohibition is necessary. This Bill seeks to implement such a measure.
FINANCIAL IMPACT
The bill will have no financial impact.
NOTES ON CLAUSES
Clause 1: Short Title
This clause is a formal provision and specifies the short title of the bill as the Broadcasting
Services Amendment (Prohibition of Gambling Advertisements) Act 2023.
Clause 2: Commencement
This clause provides for the commencement of the Act on the day after the end of a period
of six months beginning on the day it receives Royal Assent. This six-month period will
allow broadcasters, advertisers and regulators to prepare for the implementation of the
prohibitions on gambling advertising prior to commencement of the Act.
Clause 3: Schedules
This clause establishes that, as the intent of the bill is to be realised through amendments
to another Act, the schedule of this bill will amend that Act accordingly.
Schedule 1
Broadcasting Services Act 1992
Item 1: Paragraph 3(1)(hb)
This item amends the Objects of the Act by repealing Paragraph 3(1)(hb) of the Act which
refers to ensuring that online content service providers respect community standards in
relation to gambling promotional content and replacing that provision with two paragraphs
(hb) and (hc) that provide for the Objects of the Act include prohibition of broadcasting of
gambling advertisements on certain television and radio broadcasting services; and
prohibition of the provision of gambling advertisements on certain online content services.
Item 2 Paragraph 3(1)(ia)
This item further amends the Objects of the Act, and specifically a reference in Paragraph
3(1)(ia) to means for addressing complaints relating to broadcasting, through the removal
of the words "gambling promotional content provided on online content services" and their
replacement with "gambling advertisements that are prohibited from being broadcast or
provided". This reflects the bill's shift from regulation of gambling advertising to prohibition
of gambling advertising.
Item 3: Subsection 3(2)
This item provides for the repeal of the definitions in Subsection 3(2) of the Act referring to
gambling promotional content and online content service providers. This reflects the bill's
shift from regulation of gambling advertising to prohibition of gambling advertising.
Item 4: Subsection 4(3AB)
This item repeals subsection 4(3AB) which, as part of the Section dealing with Regulatory
Policy stated the Parliament's intent that gambling promotional content provided on online
content services be regulated in a manner with regard to certain public interest
considerations. This change is consistent with the bill's shift from regulation of gambling
advertising to prohibition of gambling advertising.
Item 5: Subsection 4(4)
This item provides for the repeal of definitions in Subsection 4(4) of the Act of gambling
promotional content and definition of online content service provider.
Item 6: Subsection 6(1)
This item provides for the repeal of the definition in Subsection 6(1) of the Act of a
gambling promotion program standard.
Item 7: Subsection 6(1) (definition of program standards)
This item provides for the removal of a reference in Subsection 6(1) of the Act to a
"gambling promotion program standard" in the context of a definition of program standards
determined by the ACMA. .
Item 8: After section 121H
This item provides for the insertion after Section 121H of the Act of a new Section 121J
that provides for the prohibition of broadcast gambling advertisements.
Subsection 121H(1) provides that the new Section applies to the following persons (as a
broadcaster): (a) commercial television broadcasting licensee; (b) a commercial radio
broadcasting licensee; (c) a subscription television broadcasting licensee; and (d) a person
providing a subscription radio broadcasting service under a class licence.
Subsection 121H(2) provides that a broadcaster must not broadcast a gambling
advertisement. This is the core provision of the Bill, establishing a comprehensive ban on
the broadcasting of gambling advertisements.
Subsection 121H(3) deals with the exception of an accidental or incidental broadcast in
which subsection 121H2 does not apply in relation to the broadcasting of a gambling
advertisement. This is the case if the gambling advertisement is broadcast as an
accidental or incidental accompaniment to the broadcasting of other matter; and the
broadcaster does not receive any direct or indirect benefit (whether financial or not) for
broadcasting the gambling advertisement (in addition to any direct or indirect benefit that
the broadcaster receives for broadcasting other matter).
This provision ensures that broadcasters are not responsible for incidental references to
gambling advertising that may be made in the course of a sports broadcast - for example
remarks made by a sports commentator about the odds being offered on a particular
sporting outcome. If, however, the remarks were other than inadvertent or more than
"incidental", such broadcasting would be in contravention of the overall prohibition.
Subsection 121H(4) provides that the prohibition on gambling advertising provided for by
Section 121H would have no effect to the extent (if any) that its operation would infringe
any constitutional doctrine of implied freedom of political communication. For example, a
broadcaster could broadcast an advertisement by a gambling advertiser that commented
on the effects of this legislation on their business.
Subsection 121H(5) further provides that Subsection (4) does not limit the application to
this Act of Section 15A of the Acts Interpretation Act 1901 which provides that, "Every Act
shall be read and construed subject to the Constitution, and so as not to exceed the
legislative power of the Commonwealth, to the intent that where any enactment thereof
would, but for this section, have been construed as being in excess of that power, it shall
nevertheless be a valid enactment to the extent to which it is not in excess of that power."
Subsection 121H(6) provides that the Section (i.e. the prohibition a broadcaster
broadcasting a gambling advertisement shall have no effect to the extent (if any) to which
its operation would result in an acquisition of property (within the meaning of
paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within
the meaning of that paragraph).
Subsection 121H(7) provides that the definition of "gambling advertisement" in the Section
shall have the same meaning as in Schedule 8 of the Act which is amended by Item 23
below.
Item 9: Section 125A
This item provides for the repeal of Section 125A of the Act which provides that ACMA
must determine a gambling promotion program standard if directed by the Minister. This
provision is redundant in the context of the prohibition of broadcasting gambling
advertisements.
Item 10: Subsection 204(3)
This item provides for the repeal the subsection 204(3) of the Act which provides that
applications may be made to the Administrative Appeals Tribunal for review of a decision
made by the ACMA under a gambling promotion program standard. This provision is
redundant in the context of the prohibition of broadcasting gambling advertisements.
Item 11: After paragraph 7(1)(aa) of Schedule 2
This item provides that, with regard to paragraph 7 of Schedule 2 of the Act which deals
with conditions applying to commercial television broadcasting licences, a new paragraph
7(1)(ab) shall be inserted after paragraph 7(1)(aa) to provide that a broadcast licensee
must comply with the new Section 121J. As a consequence commercial television
broadcasters will be required to observe the prohibition on gambling advertising as a
condition of their broadcast licence.
Item 12: After paragraph 8(1)(a) of Schedule 2
This item provides a commercial television broadcaster providing services with the use of
a satellite under a licence allocated under section 38C of the Act must comply with the
new section 121J (prohibition on broadcasting gambling advertisements). As a
consequence commercial satellite broadcasters will be required to observe the probation
on gambling advertising as a condition of their broadcast licence.
Item 13 After paragraph 10(1)(a) of Schedule 2
This item provides that with regard to paragraph 10(1) of Schedule 2 of the Act which
deals with conditions applying the subscription television broadcasting licences, a new
paragraph 10(1)(aa) shall be inserted after paragraph 10(1)(a) to provide that a
subscription television broadcast licensee must comply with the new Section 121J. As a
consequence subscription television broadcasters will be required to observe the
prohibition on gambling advertising as a condition of their broadcast licence.
Item 14: 14 After paragraph 11(1)(ab) of Schedule 2
This item provides that with regard to paragraph 11(1) of Schedule 2 of the Act which
deals with conditions applying the subscription radio broadcasting class licences, a new
paragraph 11(1)(ac) shall be inserted after paragraph 11(1)(ab) to provide that a
subscription radio broadcaster must comply with the new Section 121J. As a
consequence subscription radio broadcasters will be required to observe the probation on
gambling advertising as a condition of their broadcast class licence.
Item 15: Clause 1 of Schedule 8
This item amends Clause 1 of Schedule 8 of the Act by omitting the provision that the
ACMA may make online content service provider rules about gambling promotional
content provided on online content services in conjunction with live coverage of sporting
events. The Clause is amended to provide that while the ACMA may make online content
service provider rules about content provided on online content service, the provision of
gambling advertisements on certain online content services is prohibited. This is
consistent with the overall prohibition to be put in place by the Bill.
Item 16: Clause 1 of Schedule 8
This item amends Clause 1 of Schedule 8 of the Act that refers to potential civil penalties
and ACMA remedial action orders in the event an online provider contravenes online
content service provider rules. The item substitutes a similar provision that additionally
refers to potential liability to pay a civil penalty if an online provider contravenes the
prohibition on the provision of gambling advertisements and for the ACMA to also make a
remedial action directive in such a circumstance.
Items 17 to 19: Clause 2 of Schedule 8
These items provides for amendments to Clause 2 of Schedule 8 of the Act to repeal
various definitions relating to gambling promotional activities, gambling services and the
conduct of sporting events. These amendments are consistent with the Bill's amendment
of the Act to replace a regulatory framework for broadcast of gambling advertising with a
prohibition on broadcasting of gambling advertising. Item 18 inserts the definition of
gambling advertising with the meaning given in a new clause 17A as provided for by Item
23 below.
Item 20: Part 3 of Schedule 8
This item changes the heading of Part 3 of Schedule 8 of the Act from "Gambling
promotional content" to "Gambling advertisements".
Item 21: Division 1 of Part 3 of Schedule 8
This item provides for the repeal of Division 1 of Part 3 of Schedule 8 of the Act, and the
substitution of new provisions that provide for gambling advertisements to be prohibited on
certain online content services.
Section 13(1) of the new Division on provides that the section applies to what a "relevant
online content service" that is defined as: (a) an online content service that delivers
content that consists of coverage of a sporting event (whether or not the coverage is live);
and (b) an online content service that consists of an on-demand program service (within
the meaning of the Online Safety Act 2021). This definition covers the main platforms for
delivery of online coverage of sporting events, a prominent market for online gambling
advertising.
Section 13(2) provides that an online content service provider must not provide a gambling
advertisement on a relevant online content service. This completes the bill's
comprehensive prohibition on broadcasting gambling advertisements.
Similar to the accidental or incidental exemption relating to commercial television
broadcasting, Section 13(3) provides that the prohibition on broadcasting of a gambling
advertisement does not apply to accidental or incidental accompaniment to the provision of
other matter; and when the online content service provider does not receive any direct or
indirect benefit.
Item 22: Paragraph 17(2)(a) of Schedule 8
Consistent with other changes, Item 22 amends the interpretive provisions of Paragraph
17 of Schedule 8 to replace the phrase "gambling promotional content" with "gambling
advertisements".
Item 23: After clause 17 of Schedule 8
This item inserts a new Clause 17A into Schedule 8 of the Act to provide a comprehensive
definition of "gambling advertisement".
This definition reads as follows:
For the purposes of this Schedule, gambling advertisement means any writing, still or
moving picture, sign, symbol or other visual image, or any audible message, or any
combination of 2 or more of those things, that gives publicity to, or otherwise
promotes or is intended to promote the following:
(a) gambling;
(b) a gambling service in general;
(c) the whole or part of a trade mark in respect of a gambling service;
(d) a domain name or URL that relates to a gambling service;
(e) any words, abbreviations, initials or numbers that are closely associated with
a gambling service (whether also closely associated with other kinds of
services or products);
but does not include a designated interactive gambling service advertisement (within
the meaning of Part 7A of the Interactive Gambling Act 2001).
This definition covers all forms of advertisements with the purpose, explicit or implicit, of
publicising or promoting gambling, gambling services or related trademarks, domain
names or URLs as well as associated words, abbreviations, initials or numbers.
Gambling itself may be broadly defined as activity that involves staking money or
something of real-world value on the outcome of an event that is decided in full or in part
by chance - such as a sporting event or a horse race - with the intent of winning a prize of
money or something else of value.
The Interactive Gambling Act 2001 defines a "gambling service" as
(a) a service for the placing, making, receiving or acceptance of bets; or
(b) a service the sole or dominant purpose of which is to introduce
individuals who wish to make or place bets to individuals who are willing
to receive or accept those bets; or
(c) a service for the conduct of a lottery; or
(d) a service for the supply of lottery tickets; or
(e) a service for the conduct of a game, where:
(i) the game is played for money or anything else of value; and
(ii) the game is a game of chance or of mixed chance and skill; and
(iii) a customer of the service gives or agrees to give consideration to
play or enter the game; or
(f) a gambling service (within the ordinary meaning of that expression) that
is not covered by any of the above paragraphs.
The definition of gambling advertisement in the new Clause 17A does not include a
designated interactive gambling service advertisement (within the meaning of Part 7A of
the Interactive Gambling Act 2001 which makes it illegal for gambling providers to offer
certain online services to people in Australia. Banned services include online casinos and
in-play sports betting. This legislation includes provisions prohibiting advertising such
services in Australia.
Item 24: Clauses 19 to 23 of Schedule 8
This item provides for the repeal of Clauses.19 to 23 of Schedule 8 of the Act which relate
to gambling promotional content provided in conjunction with live coverage of a sporting
event. Repeal of these provisions is consistent with the prohibition of gambling advertising
provided for by the Bill.
Item 25 Subclause 24(1) of Schedule 8
This item amends subclause 24(1) of Schedule 8 of the Act to allow a person to make a
complaint to the ACMA if that person has reason to believe that an online content service
provider has contravened the new Clause 13 of the Schedule (prohibiting broadcasting of
a gambling advertisement). Subclause 24(2) of the Schedule empowers the ACMA to
conduct an investigation into the complaint if it is considered desirable to do so. One of
the ACMA's functions is to monitor compliance with the online content service provider
rules. This amendment extends that role to investigation of complaints regarding
compliance with the prohibition on broadcasting gambling advertising.
Items 26 to 29: Insertion of references to Clause 13
These items insert into various provisions required references to Clause 13 of Schedule 8
of the Act (prohibition on broadcasting gambling advertisements).
Item 26 item changes the heading of Clause 25 or Schedule 8 of the Act to read
"Compliance with clause 13 and the online content service provider rules".
Item 27 repeals Subclause 25(1) and substitutes the following text to include reference to
Clause 13 (prohibition on gambling advertising): "(1) An online content service provider
must not contravene: (a) clause 13 of this Schedule; or (b) the online content service
provider rules."
Item 28 changes the heading of Clause 26 of Schedule 8 to read "Remedial directions--
breach of clause 13 and the online content service provider rules".
Item 29 amends each of Subclauses 26(1), (2) and (3) of Schedule 8 by inserting the
words "clause 13 of this Schedule or" before the words "the online content service provider
rules" (wherever occurring).
Item 30 Application provision
This Item provides that the amendments made by items 11 to 14 of Schedule 8, relating to
various broadcast licences, shall apply, on and after the commencement of this item, in
relation to a licence regardless of when the licence was allocated. As a consequence all
licences broadcasters will be required to comply with the prohibition on broadcasting
gambling advertising, as a condition of their licence as soon as the amendments of this Bill
commence (i.e. six months from Royal Assent).
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act
2011
BROADCASTING SERVICES AMENDMENT
(PROHIBITION OF GAMBLING ADVERTISEMENTS) BILL 2023
Overview
This bill seeks to amend the Broadcasting Services Act 1992 (the Act) to prohibit the
broadcasting of gambling advertisements on certain television and radio broadcasting
services; and to prohibit the provision of gambling advertisements on certain online
content services. It seeks to achieve a comprehensive ban on gambling advertising,
ending the exploitation of sporting broadcasts to promote gambling services.
Human rights implications
By imposing a prohibition on the broadcasting of gambling advertisements, this bill does
impinge on freedom of expression. This freedom, exercised by commercial television and
other online broadcasters operating in conformity with government licences, is curtailed
with the aim of limiting the promotion of gambling activity and consequently reducing the
financial, social and mental health harm that excessive gambling inflicts on individuals and
the community. This prohibition on gambling advertising is especially important in relation
to the legitimate purpose of protecting young people from exposure to gambling at ages
before they can make mature, informed and independent choices about engagement with
such activity.
The social. financial and mental health benefits to the community of long established bans
on broadcasting advertisements for alcohol and tobacco products are widely recognised.
A prohibition on advertising of certain interactive gambling services has already been
legislated by the Parliament through the Interactive Gambling Act 2001 .
The Bill explicitly states that the prohibition on broadcasting gambling advertising has no
effect to the extent (if any) that its operation would infringe any constitutionally implied
freedom of political communication.
Conclusion
This bill is compatible with human rights because to the extent that it may limit human
rights, those limitations are reasonable, necessary and proportionate, and in the interest of
the public good. The bill is compatible with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011
Zoe Daniel MP