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2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
Interactive Gambling Amendment (Credit Card Ban and Acknowledgement of
Losses) Bill 2023
EXPLANATORY MEMORANDUM
and
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Circulated by authority of
Rebekha Sharkie MP
INTERACTIVE GAMBLING AMENDMENT (CREDIT CARD BAN AND
ACKNOWLEDGEMENT OF LOSSES) BILL 2023
OUTLINE
The Interactive Gambling Amendment (Credit Card Ban and Acknowledgement of Losses)
Bill 2023 aims to lessen problematic online gambling among Australians by:
• banning the use of credit cards for online gambling using regulated interactive
gambling services, and
• requiring a person to expressly acknowledge their losses during the current
financial year before being permitted to participate in licensed interactive wagering
services.
In order to provide for a smooth transition for operators and customers, a six-month
implementation period is proposed during which engagement will occur with operators,
peak bodies and advocates for reducing gambling harm, and to allow for changes to
systems and processes.
Banning the use of credit cards for online gambling
The National Consumer Protection Framework for Online Wagering in Australia (updated 3
May 2022) prohibits lines of credit and payday lending for online gambling. However,
unlike in-person gambling venues (the TAB, racetracks or licensed venues), customers are
not prohibited from using credit to gamble online or by telephone.
The Bill prohibits operators of regulated interactive gambling services which are wagering
services from accepting credit card payments from customers who are in Australia. This
includes payments from a credit card or from an account or service which relies on
payment being made from a credit card linked to that account or service. It does not
include debit cards.
The Bill creates a criminal offence and corresponding civil penalty provision if a person
intentionally provides a regulated interactive gambling service that is a wagering service
(an online gambling service) and accepts, offers to accept, facilitates or promotes credit
card payment in connection with the service to a customer in Australia. For each day a
contravention continues, a separate offence is committed.
Schedule 1 of the Bill implements Recommendation 2 of the Parliamentary Joint
Committee on Corporations and Financial Services report into the Regulation of the use of
financial services such as credit cards and digital wallets for online gambling in Australia:
that the Australian Government develop and implement legislation to ban online
gambling service providers of wagering, gaming and other gambling services (but
not lotteries) from accepting payment by credit cards, including via digital wallets.
The Bill will have no adverse consequences for lotteries, including the activities of not-for-
profits, charities and newsagents. This is in line with the third recommendation of the
afore-mentioned Parliamentary Joint Committee on Corporations and Financial Services
report.
The banning of the use of credit cards for online gambling brings regulation of interactive
gambling services into alignment with in-person gambling venues, for which use of credit
cards has been restricted since the early 2000s.
The Parliamentary Joint Committee reported that all stakeholders, advocates, financial
counsellors and the industry peak body for online wagering, Responsible Wagering
Australia, broadly supported a ban on credit card usage for online wagering.
A similar ban has been in effect in the United Kingdom since 14 April 2020.
Acknowledgement of losses
Since mid-2022 licensed interactive wagering service providers have been required to
provide an activity statement each month to their customers, comprising information such
as the amount spent, bets placed, wins and losses, overall net win/loss for the period and
figures illustrating wagering activity comparing the amount spent against net result over
time. In addition, a record of betting account transactions must also be available at all
times via a customer's 'My Account' window for online wagering customers, however these
measures do not place this information in front of a customer immediately before wagering
unless they actively seek it out.
Schedule 2 of the Bill addresses this 'gap' by requiring a customer of a licensed interactive
wagering service with an Australian-customer link to have expressly acknowledged their
losses to date on an online gambling application in the current financial year, before
allowing further betting to occur.
The Bill creates a criminal offence and corresponding civil penalty provision if a person
intentionally provides a licensed interactive wagering service to a customer in Australia if
the individual did not give the person an acknowledgement of losses in respect of that
service at that time or for that period. For each day a contravention continues, a separate
offence is committed.
Implementation of the Bill will ensure operators must provide consumers with meaningful,
timely and user-friendly information at the point of signing on to a licensed interactive
wagering service about their activity including how much money they are spending with
that service, in order to help the customer to reflect on current information in making
decisions about future wagering.
In order to minimise regulatory impact on interactive wagering service providers, the
design of the provisions is aligned with BETA monthly activity statement requirements for
operators implemented in mid-2022.
Background
Australians experience the world's biggest gambling losses per capita, estimated at $25
billion during 2018-19.
The Parliamentary Joint Committee on Corporations and Financial Services heard that
there has been exponential growth in Australians' online gambling in recent years. Even
prior to the Covid-19 pandemic, the National Consumer Protection Framework for Online
Wagering--Baseline Study Final Report found that online gambling was the fastest
growing gambling segment of the Australian gambling market. Spending on this sector
then accelerated rapidly during the Covid-19 pandemic, with a reported 67 per cent rise in
online gambling in Australia during the first week of April 2020. Increased use of
smartphones enables people to access interactive wagering services and their promotions,
in privacy, at any place and time.
The use of credit cards increases the risk of gambling harm by extending the pool of
available funds beyond the cardholder's savings, so that the cardholder is gambling with
funds they do not have.
Resulting social and financial harms can include extreme financial hardship, loss of
employment, bankruptcy, relationship breakdown, mental ill health and homelessness.
These harms impact not just the person gambling but also their families, friends,
colleagues, customers and the broader community.
Implementing a ban on use of credit for online wagering will provide for greater
consistency with in-venue gambling regulation.
The stated aims of measures in the National Consumer Protection Framework for Online
Wagering in Australia are to empower consumers to make more informed decisions about
their gambling. Hence, since mid-2022 licensed interactive wagering service providers
have been required to provide activity statements of bets placed and wins and losses each
month to their customers via email. Similarly, a record of betting account transactions must
also be available at all times for online betting customers via the customer's My Account
window.
Requiring the customer to acknowledge their current losses in each online betting
application every time they sign in, before allowing them to undertake any further betting,
will provide meaningful, user-friendly, point-of-sign-on information about their wagering
activity including how much money they are spending will help consumers to reflect on and
make decisions about their wagering activity.
For ease of implementation and to minimise additional regulatory burden it is proposed for
the purposes of the acknowledgement of losses to draw on data which the providers are
already required to have available through monthly activity statements representing:
• the sum of net results from winning bets, and
• the sum of net results from losing bets.
FINANCIAL IMPACT
The bill will have no financial impact.
NOTES ON CLAUSES
Clause 1: Short Title
1. Clause 1 is a formal provision specifying the short title of the Bill.
Clause 2: Commencement
2. Clause 2 provides for the commencement of the Act the day after the end of the
period of 6 months beginning on the day after Royal Assent. This is intended to
provide affected interactive wagering service providers and consumers time to
prepare for the introduction of the proposed prohibition on credit card use for online
gambling and acknowledgement of losses.
Clause 3: Schedules
3. Clause 3 provides that each Act specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule. Any other item in a
Schedule to this Act has effect according to its terms.
Schedule 1 - Credit card ban
Interactive Gambling Act 2001
Item 1 - Section 3
4. Item 1 amends section 3, the simplified outline of the Act, with the insertion of
paragraph (cb) which stipulates that credit card payments must not be accepted
from customers of certain interactive wagering services.
Items 2 and 3 - Subparagraph 15C(1)(b)(ii) and paragraph 15C(3)(b)
5. Item 2 amends subparagraph 15C(1)(b)(ii), and Item 3 amends paragraph
15C(3)(b), to remove the exception relating to independently issued credit cards to
the prohibition of the provision of credit by omitting "other than" and substituting
"including".
Item 4 - After Part 2B
6. Item 4 inserts a new Part 2C into the Act, prohibiting credit card payments from
being accepted from customers of certain interactive wagering services by the
operators of those services.
7. Proposed new section 15H is the simplified outline for Part 2C.
8. Proposed new section 15J provides a definition of credit card which reflects the
definition in the National Consumer Credit Protection Act 2009 and a definition of
credit card payment which would cover 'e-wallets' or 'digital wallets', reflecting a
similar existing ban on credit card payments for online bets in the UK.
Credit card payment by customers of certain interactive wagering services not to be
accepted
9. Proposed new section 15K would prohibit providers of regulated interactive
gambling services that are wagering services from accepting credit card payment
by customers or from facilitating or promoting credit card payment in connection
with such services. The prohibition would be subject to offence and civil penalty
provisions, outlined below.
10. Subsection 15K(1) would provide that a person commits an offence if the person
intentionally provides a regulated interactive gambling service that is a wagering
service, and either:
• the person accepts, or offers to accept, credit card payment in connection
with the provision of the service to a customer, or prospective customer, who
is physically present in Australia; or
• the person facilitates or promotes credit card payment in connection with the
provision of the service to a customer, or prospective customer, who is
physically present in Australia.
The maximum penalty for commission of the offence would be 500 penalty units.
Subsection 15K(2) would provide that a person who contravene subsection 15K(1)
commits a separate offence in respect of each day during which the contravention
continues (i.e. a continuing offence).
11. Subsection 15K(3) would provide for a corresponding civil penalty provision, with a
maximum penalty of 750 penalty units. Subsection 15K(4) would provide that a
person who contravenes subsection 15K(3) commits a separate contravention in
respect of each day during which the contravention continues. The higher penalty
amount in subsection 15K(3) recognises the stigma of the conviction that would
arise if a person were found guilty of committing an offence against subsection
15K(1), in addition to the pecuniary penalty.
12. The maximum penalty for the offence and civil penalty provisions would be 5 times
higher for a body corporate, due to the operation of subsection 4B(3) of the Crimes
Act 1914 and subsection 82(5) of the Regulatory Powers (Standard Provisions) Act
2014 respectively.
13. It is important to note that the credit card payment prohibition applies only to
persons who provide a 'regulated interactive gambling service' (within the meaning
of section 8E of the IGA) that is a 'wagering service' (within the meaning of section
4 of the IGA). It would not apply to regulated interactive gambling services falling
within paragraphs (c) - (f) of the definition of 'gambling service' in section 4 of the
IGA, such as a service for the conduct of a lottery or for the conduct of a game of
mixed chance and skill. It would also not apply to face-to-face betting, which is
outside the scope of the IGA.
14. Proposed subsection 15K(5) would provide that subsections 15K(1) and (3) do not
apply if the person did not know and could not, with due diligence, have ascertained
that the customer or prospective customer in question was physically present in
Australia.
15. The note to this subsection clarifies that, in proceedings for an offence against
subsection 15K(1), the defendant would bear the evidential burden of adducing
evidence in relation to the matters in subsection 15K(5), in line with subsection
13.3(3) of the Criminal Code (in the Schedule to the Criminal Code Act 1995). In
proceedings for breach of the equivalent civil penalty provision, in subsection
15K(3), a person seeking to rely on the exception in subsection 15K(5) would bear
an evidential burden in relation to that matter in accordance with section 96 of the
Regulatory Powers (Standard Provisions) Act 2014.
16. It is appropriate for the evidential burden to lie with the defendant in relation to this
exception, as the matters are peculiarly within the knowledge of the defendant (i.e.
what the defendant actually knew or could have ascertained, in their circumstances,
with reasonable diligence).
17. Proposed subsection 15K(6) would provide further guidance to the Court on how it
would be determined (for the purposes of proposed subsection 15K(5)) whether the
person could, with reasonable diligence, have ascertained that the customer or
prospective customer was physically present in Australia. The subsection would
require the following matters be taken into account:
• whether the customer (or prospective customer) was informed that Australian
law prohibits the acceptance of credit card payment from customers who are
physically present in Australia;
• whether the person required customers to provide personal details and, if so,
whether those details suggested that the customer was not physically
present in Australia;
• whether the person has network data that indicates that customers were
physically present outside Australia when the relevant customer account was
opened and throughout the period when the service was provided to the
customer; and
• any other relevant matters.
18. Proposed subsection 15K(7) would provide that section 15.4 of the Criminal Code
(extended geographical jurisdiction - category D) applies to an offence against
subsection 15K(1). Section 15.4 is an extension of the standard geographical
jurisdiction set out in section 14.1 of the Criminal Code, which would otherwise
apply to the offence. Section 15.4 of the Criminal Code applies the offence
provision to an offence whether or not the conduct, or a result of the conduct,
constituting the alleged offence occurs in Australia. Because it would be possible for
offshore gambling service providers to commit the conduct constituting the offence
in subsection 15K(1) wholly in a foreign country where there may not be a
corresponding offence in force, this extension of jurisdiction is necessary to ensure
the effectiveness of the offence.
Acquisition of property
19. Proposed subsection 15L(1) is a constitutional saving provision, which would
provide that the credit card payment prohibition in section 15K has 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.
20. Proposed subsection 15L(2) is a transitional provision designed to ensure that the
new credit card payment prohibition will not prevent gambling service providers
from accepting a credit card payment made before the commencement of the
relevant provisions.
Items 5 to 9 - consequential amendments
21. Items 5 to 9 are consequential amendments to provide for the prohibition on
accepting credit card payments in the new Part 2C to be integrated into the existing
provisions of the IGA relating to complaints, investigations and enforcement
powers.
Item 5 - After paragraph 16(ba)
22. Item 5 is a consequential amendment seeking to amend section 16 of the IGA with
the insertion of paragraph (bb), to expand the types of matter about which persons
may complain to the ACMA to include new Part 2C.
Item 6 - After subparagraph 21(1)(a)(iia)
23. Item 6 is a consequential amendment seeking to amend paragraph 21(1)(a) of the
IGA with the insertion of subparagraph (iib), to expand the types of matter which the
ACMA may investigate to include new Part 2C.
Item 7 - After paragraph 64A(ca)
24. Item 7 is a consequential amendment seeking to expand the scope of section 64A
with the insertion of paragraph (cb), to empower the ACMA to issue a formal
warning if a person contravenes proposed subsection 15K(3).
Item 8 - After paragraph 64C(1)(ca)
25. Item 8 is a consequential amendment seeking to amend subsection 64C(1) with the
insertion of paragraph (cb) so that proposed subsection 15K(3) is able to be subject
to an infringement notice under Part 5 of the Regulatory Powers (Standard
Provisions) Act 2014. Part 5 of that Act creates a framework for using infringement
notices in relation to provisions in other legislation.
Item 9 - After paragraph 64D(1)(ca)
26. Item 9 is a consequential amendment seeking to amend subsection 64D(1) with the
insertion of paragraph (cb), providing for subsection 15K(3) to be enforceable under
Part 7 of the Regulatory Powers (Standard Provisions) Act 2014. Part 7 of that Act
creates a framework for using injunctions to enforce provisions.
Item 10 - Application provision
27. Item 10 specifies that the amendments made by Schedule 1 apply in relation to the
provision of a regulated interactive wagering service on or after commencement of
this Item.
Schedule 2 - Acknowledgement of losses
Interactive Gambling Act 2001
Item 1 - Section 3
28. Item 1 amends section 3, the simplified outline of the Act, with the insertion of
paragraph (g) which stipulates that licensed interactive wagering services must not
be provided to an individual who has not given the provider of the service an
acknowledgement of losses.
Item 2 - After Part 7B
29. Item 2 inserts a new Part 7C into the Act, prohibiting the provision of licensed
interactive wagering services to an individual who has not given the provider of the
service an acknowledgement of losses.
30. Proposed new section 61RA is the simplified outline for Part 7C.
31. Proposed new section 61RB provides definitions of:
• acknowledgement of losses which reflects the definition in section 61RC;
• an activity statement which means a statement prepared by a licensed
interactive wagering service provider that sets out customer information for a
particular period relating to the sum of each stake made for each of the
customer's bets, the sum of the net result from each of the customer's
winning bets during the period, the sum of the net result from each of the
customer's losing bets during the period, and the net results from all of the
customer's bets during the period, with the net results being the net results
from all winning bets minus net results from all losing bets;
• a licensed interactive wagering service that means a regulated interactive
gambling service that is a wagering service, has an Australian-customer link
and is not provided in contravention of subsection 15AA(3); and
• a licensed interactive wagering service provider which means a person who
provides a licensed interactive wagering service.
32. Proposed new section 61RC provides that an individual gives a licensed interactive
wagering service provider an acknowledgement of losses in respect of the provision
of a licensed interactive wagering service to the individual at a particular time or
during a particular period if:
• immediately before that time or before the start of that period the provider
gives the individual an activity statement that covers the individual's use of
the service during the current financial year;
• the individual is required to acknowledge the losses set out in that statement
as a pre-condition to accessing the service at that time or during that period;
and
• the individual gives the required acknowledgement.
Prohibition of the provision of licensed interactive wagering services without
acknowledgement of losses
33. Proposed new section 61RD would prohibit providers of licensed interactive
gambling services that are wagering services from providing that wagering service
to an individual if the person had not provided an acknowledgement of losses in
respect of the provision of that service. Contravention of the prohibition would be
subject to offence and civil penalty provisions, outlined below.
34. Subsection 61RD(1) would provide that a person commits an offence if the person
intentionally provides a licensed interactive gambling service that is a wagering
service to an individual at a particular time or during a particular period and the
individual did not give an acknowledgement of losses in respect of the provision of
the wagering service at that time or during that period.
The maximum penalty for commission of the offence would be 500 penalty units.
35. Subsection 61RD (2) would provide that a person who contravenes subsection
61RD(1) commits a separate offence in respect of each day during which the
contravention continues (i.e. a continuing offence).
36. Subsection 61RD(3) would provide for a corresponding civil penalty provision, with
a maximum penalty of 750 penalty units. Subsection 61RD(4) would provide that a
person who contravenes subsection 61RD(3) commits a separate contravention in
respect of each day during which the contravention continues. The higher penalty
amount in subsection 61RD(3) recognises the effect of the conviction that would
arise if a person were found guilty of committing an offence against subsection
61RD(1), in addition to the pecuniary penalty.
37. The maximum penalty for the offence and civil penalty provisions would be 5 times
higher for a body corporate, due to the operation of subsection 4B(3) of the Crimes
Act 1914 and subsection 82(5) of the Regulatory Powers (Standard Provisions) Act
2014 respectively.
38. It is important to note that the requirement for an acknowledgement of losses
applies only to persons who provide a 'licensed interactive wagering service' that is
a 'wagering service' (within the meaning of section 4 of the IGA). It would not apply
to regulated interactive gambling services falling within paragraphs (c) - (f) of the
definition of 'gambling service' in section 4 of the IGA, such as a service for the
conduct of a lottery or for the conduct of a game of mixed chance and skill. It would
also not apply to face-to-face betting, which is outside the scope of the IGA.
39. Proposed subsection 61RD(5) would provide that subsections 61RD(1) and (3) do
not apply if the person took reasonable precautions, and exercised due diligence, to
avoid the contravention.
40. The note to this subsection clarifies that, in proceedings for an offence against
subsection 61RD (1), the defendant would bear the evidential burden of adducing
evidence in relation to the matters in subsection 61RD(5), in line with subsection
13.3(3) of the Criminal Code (contained in the Schedule to the Criminal Code Act
1995). In proceedings for breach of the equivalent civil penalty provision, in
subsection 61RD(3), a person seeking to rely on the exception in subsection
61RD(5) would bear an evidential burden in relation to that matter in accordance
with section 96 of the Regulatory Powers (Standard Provisions) Act 2014.
41. It is appropriate for the evidential burden to lie with the defendant in relation to this
exception, as the matters are peculiarly within the knowledge of the defendant (i.e.
what the defendant actually knew or could have ascertained, in their circumstances,
with reasonable diligence).
42. Proposed subsection 61RD (7) would provide that section 15.4 of the Criminal Code
(extended geographical jurisdiction - category D) applies to an offence against
subsection 61RD(1). Section 15.4 is an extension of the standard geographical
jurisdiction set out in section 14.1 of the Criminal Code, which would otherwise
apply to the offence. Section 15.4 of the Criminal Code applies the offence
provision to an offence whether or not the conduct, or a result of the conduct,
constituting the alleged offence occurs in Australia. Because it would be possible for
offshore gambling service providers to commit the conduct constituting the offence
in subsection 16RD(1) wholly in a foreign country where there may not be a
corresponding offence in force, this extension of jurisdiction is necessary to ensure
the effectiveness of the offence.
Acquisition of property
43. Proposed subsection 16RD(8) is a constitutional saving provision, which would
provide that the credit card payment prohibition in section 61RD has 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.
Items 3 to 8 - consequential amendments
44. Items 3 to 8 are consequential amendments to provide for the prohibition on
accepting credit card payments in the new Part 7C to be integrated into the existing
provisions of the IGA relating to complaints, investigations and enforcement
powers.
Item 3 - After paragraph 16(d)
45. Item 3 is a consequential amendment seeking to amend section 16 of the IGA with
the insertion of paragraph (e), to expand the types of matter about which persons
may complain to the ACMA to include new Part 7C.
Item 4 - After subparagraph 21(1)(a)
46. Item 4 is a consequential amendment seeking to amend paragraph 21(1)(a) of the
IGA with the insertion of subparagraph (v), to expand the types of matter which the
ACMA may investigate to include new Part 7C.
Item 5 - At the end of section 64A
47. Item 5 is a consequential amendment seeking to expand the scope of section 64A
with the insertion of paragraph (x), to empower the ACMA to issue a formal warning
if a person contravenes proposed subsection 61RD(3).
Item 6 - After paragraph 64C(1)(w)
48. Item 6 is a consequential amendment seeking to amend subsection 64C(1) with the
insertion of paragraph (x) so that proposed subsection 61RD (3) is to be subject to
an infringement notice under Part 5 of the Regulatory Powers (Standard Provisions)
Act 2014. Part 5 of that Act creates a framework for using infringement notices in
relation to provisions in other legislation.
Item 7 - After paragraph 64D(1)(w)
49. Item 7 is a consequential amendment seeking to amend subsection 64D(1) with the
insertion of paragraph (x), providing for subsection 61RD(3) to be enforceable
under Part 7 of the Regulatory Powers (Standard Provisions) Act 2014. Part 7 of
that Act creates a framework for using injunctions to enforce provisions.
Item 10 - Application provision
50. Item 8 specifies that the amendments made by Schedule 2 apply in relation to the
provision of a licensed interactive wagering service on or after commencement of
this Item.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Interactive Gambling Amendment (Credit Card Ban and Acknowledgement of
Losses) Bill 2023
This 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.
Overview of the bill
The Interactive Gambling Amendment (Credit Card Ban and Acknowledgement of Losses)
Bill 2023 aims to lessen problem online gambling among Australians by:
• banning the use of credit cards for online gambling using regulated interactive
gambling services, and
• requiring a person to expressly acknowledge their losses during the current
financial year before being permitted to participate in licensed interactive wagering
services.
The Bill creates a criminal offence and corresponding civil penalty provision if a person
intentionally provides a regulated interactive gambling service that is a wagering service
(an online gambling service) and accepts, offers to accept, facilitates or promotes credit
card payment in connection with the service to a customer in Australia.
The Bill also creates a criminal offence and corresponding civil penalty provision if a
person intentionally provides a licensed interactive wagering service to a customer in
Australia if the individual did not give the person an acknowledgement of losses in respect
of that service at that time.
For each day either contravention continues, a separate offence is committed.
Prohibiting the use of credit cards for regulated interactive gambling services and ensuring
that operators must provide consumers at the point of signing on to licensed interactive
gambling services is intended help to reduce gambling harm.
Human rights implications
The Interactive Gambling Amendment (Credit Card Ban and Acknowledgement of Losses)
Bill 2023 engages the following human right under the International Covenant on Civil and
Political Rights (ICCPR):
• right to a fair and public trial or hearing, right to a presumption of innocence, and
minimum guarantees in criminal proceedings - Article 14 of the ICCPR;
• the right to be presumed innocent until proven guilty according to law - Article 14(2)
of the ICCPR; and
• the right to minimum guarantees in criminal proceedings, such as to be informed
promptly and in detail of charges - Articles 14(3)-(7).
New civil and criminal penalties and Article 14 of the ICCPR
Article 14 of the ICCPR recognises a number of rights in relation to criminal proceedings,
including:
• the right to a fair and public hearing in criminal and civil proceedings, before a
competent, independent and impartial court of tribunal established by law (Article
14(1));
• the right to the presumption of innocence until the prosecution proves a charge
beyond reasonable doubt (Article 14(2));
• minimum guarantees in criminal proceedings, such as to be informed promptly and
in detail of charges (Articles 14(3)-(7)).
Item 4 of Schedule 1 and Item 2 of Schedule 2 respectively to the Interactive Gambling
Amendment (Prohibition on Credit Card Use) Bill 2020 introduce new criminal offences
and civil penalty provisions for contraventions of the Interactive Gambling Act 2001 (IGA)
with respect to:
• prohibition of credit card use with a regulated interactive gambling service that is a
wagering service; and
• prohibition of provision of a licensed interactive wagering service to an individual
who has not given the provider of that service an acknowledgement of losses.
The Bill creates offences, and corresponding civil penalty provisions that fit within the civil
penalty regime enforced by the ACMA, for a person who:
• accepts, facilitates or promotes credit card payment in connection with an online
bet; or
• provides a licensed interactive wagering service to an individual who has not given
the provider of that service an acknowledgement of losses in respect of the
provision of that service at that time or during that period.
For each of the above offences, a contravention is committed for each day the
contravention continues.
The Bill includes provisions to trigger the civil penalty and enforcement provisions in Parts
4, 5 and 7 of the Regulatory Powers (Standard Provisions) Act 2014 (RP Act) at:
• Items 5 to 9 of Schedule 1 to the Bill, and
• Items 3 to 7 of Schedule 2 to the Bill.
The amendments would mean that the ACMA is authorised to apply to a relevant court (in
this case the Federal Court or the Federal Circuit Court) for a civil penalty order requiring a
person to pay the Commonwealth a pecuniary penalty for a contravention of the IGA under
Part 4 of the RP Act.
Under section 82(3) of the RP Act, the relevant court may order a person to pay the
Commonwealth such pecuniary penalty as it determines is appropriate. Subsections 82(5)
and (6) of the RP Act provide for how the amount of the pecuniary penalty in a civil penalty
order is to be determined. The pecuniary penalty must not be more than five time the
penalty specified in the civil penalty provision if the person is a body corporate, or
otherwise, not more than the penalty specified.
The amendments will also enable authorised members of staff of the ACMA to issue an
infringement notice under Part 5 of the RP Act where they believe, on reasonable grounds,
that a civil penalty provision of the IGA has been contravened.
The amendments will also trigger Part 7 of the RP Act to allow the ACMA to apply to the
Federal Court or Federal Circuit Court for an interim injunction or an injunction to restrain a
person from engaging in conduct and/or requiring that person to do a thing in relation to
acts or omissions that would constitute a contravention of the civil penalty provisions in the
IGA.
New criminal penalties and Article 14(2)
Article 14(2) provides that everyone charged with a criminal offence shall have the right to
be presumed innocent until proven guilty according to law. This imposes on the
prosecution the burden of proving a criminal charge and guarantees that no guilt can be
presumed until the charge has been proved beyond reasonable doubt.
Item 4 of Schedule 1 and Item 2 of Schedule 2 to the Bill would engage, but not limit, the
rights to a presumption of innocence under Article 14(2) of the ICCPR.
Offences that contain 'reverse burden' provisions may amount to a limitation on the
presumption of innocence. This includes where an 'evidential' or 'legal burden' defence is
created by expressing a matter to be a defence or an exception to the offence or providing
that the defendant must 'prove' the matter. This is because a defendant's failure to
establish an absence of fault (for example, through a mistake of fact defence) or to
discharge a burden of proof may permit their conviction despite reasonable doubts as to
their guilt.
Proposed subsection 15K(5) would create an exception to the new criminal offence and
civil penalty provision in proposed subsections 15K(1) and (3) respectively where a person
did not know, and could not, with reasonable diligence, have ascertained that the
customer, or prospective customer, as the case may be, was physically present in
Australia. The note to subsection 15K(5) provides that, in a case of proceedings for an
offence against subsection 15K(1), the defence would bear the evidential burden in
relation to the matters in subsection 15K(5).
Similarly proposed subsection 61RD(5) creates an exception to the new criminal offence
and civil penalty provision in proposed subsections 61RD(1) and 61RD(3) respectively
where person took reasonable precautions, and exercised due diligence, to avoid the
contravention (providing a wagering service without having received an acknowledgement
of losses from the customer at that time). The note to subsection 61RD(5) provides that, in
a case of proceedings for an offence against subsection 61RD(1), the defence would bear
the evidential burden in relation to the matters in subsection 61RD(5).
This means the defendant must raise evidence that his or her conduct fell within the
exception. If the defendant discharges this evidential burden, the prosecution must
disprove the matter beyond reasonable doubt.
Placing the evidential burden on the defendant in this case is appropriate as the matter
required to be established is a matter peculiarly within the knowledge of the defendant.
The defendant is best placed to establish whether they:
• did not know or could not have ascertained with reasonable diligence that the
customers, or prospective customer, was physically present in Australia (ss15K(5));
• took reasonable precautions and exercised due diligence to avoid the contravention
(ss61RD(5)).
The Bill would not otherwise alter the process that would apply to the investigation or
prosecution of the criminal penalties proposed to be inserted by Item 4 of Schedule 1 and
Item 2 of Schedule 2 respectively, as compared to other offences in the IGA or under
Commonwealth law. The quantum of the penalty (500 penalty units per day the offence
continues) is not excessive in relation to the seriousness of the conduct. These measures
do not otherwise engage the rights in Article 14 of the ICCPR and the limitations therefore
are pursuing a legitimate public health objective and are rationally connected to that
objective.
Accordingly, the new criminal offences proposed by Item 4 of Schedule 1 and Item 2 of
Schedule 2 to the Bill are compatible with Article 14 of the ICCPR.
New civil penalties and Article 14
As outlined above, Article 14 of the ICCPR provides that, in determination of criminal
charges, everyone shall be entitled to a fair and public hearing, a presumption of
innocence and various other minimum rights in relation to criminal offences.
Including civil penalty provisions and triggering the RP Act could engage criminal process
rights if the imposition of civil penalties is classified as 'criminal' under international human
rights law.
A penalty may be 'criminal' for the purposes of the ICCPR even if it is 'civil' under
Australian domestic law.
Determining whether penalties could be considered to be criminal under international
human rights law requires consideration of the classification of the penalty provisions
under Australian domestic law, the nature and purpose of the penalties, and the severity of
the penalties.
In relation to the triggering of Part 4 of the RP Act, the proposed civil penalty provisions in
Item 4 of Schedule 1 to the Bill and Item 2 of Schedule 2, specifically proposed
subsections 15K(3) and 61RD(3):
• expressly classify the penalty as a civil penalty;
• target conduct which as a result of the Bill will also, separately attract a criminal
sanction for the same type of conduct;
• create solely pecuniary penalties in the form of a debt payable to the
Commonwealth (see subsections 82(3) and (4) and section 83 of the RP Act);
• do not impose criminal liability, and do not lead to the creation of a criminal record;
• do not alter the maximum pecuniary penalties that may be imposed by a court
through civil penalty orders under section 82 of the RP Act.
These factors indicate that the penalties proposed to be imposed by the Bill are civil rather
than criminal in nature. Accordingly, the criminal process rights provided for by Article 14
of the ICCPR are not engaged by the Bill, except to the extent outlined below.
Application of Parts 4, 5 and 7 of the RP Act and Article 14(1)
Article 14(1) of the ICCPR requires that, in the determination of criminal charges, everyone
shall be entitled to a fair and public hearing by a competent, independent and impartial
tribunal established by law. This can also apply to civil proceedings. The right is concerned
with procedural fairness, rather than with the substantive decision of the court or tribunal.
Under section 82 of the RP Act, civil penalty orders can only be granted by a relevant
court, which must consider all relevant matters before determining the amount of the
penalty. The amendments to the IGA made by the Bill would specify that the Federal Court
of Australia and Federal Circuit Court of Australia are the relevant courts for the purposes
of enforcement of the civil penalties in the IGA under the Regulatory Powers Act.
Accordingly, the right to a fair hearing is engaged, but not limited by the triggering of Part 4
of the RP Act.
Section 104 of the RP Act provides that an infringement notice is required to state that the
person may choose not to pay the penalty specified in the notice, and notify them that, if
they do so, proceedings seeking a civil penalty order may be brought against them in a
court. Accordingly, the person must always be advised of the consequences of not paying
the penalty, and of their right to have the matter dealt with by a court. As the person may
elect to have the matter heard by a court, rather than pay the penalty, the right to fair
hearing is engaged, but not limited by the triggering of Part 5 of the RP Act.
Under Part 7 of the RP Act, an injunction can only be granted by a court. Further, a court
may only grant an injunction where a person has engaged, is engaging or is proposing to
engage, in conduct that contravenes a provision of the IGA, or where a person has refused
or failed, or is refusing or failing, or proposing to refuse or fail, to do a thing and that refusal
or failure was, is or would be a contravention of a provision of the IGA. Thus, the right to a
fair hearing is engaged, but not limited, by the triggering of Part 7 of the RP Act.
Accordingly, the amendments in Items 5 to 9 of Schedule 1 and Items 3 to 7 of Schedule 2
to the Bill to apply Parts 4, 5 and 7 of the RP Act are consistent with the human rights in
Article 14(1) of the ICCPR.
Conclusion
The Bill is compatible with human rights because, to the extent that it may limit human
rights, those limitations are reasonable, necessary and proportionate.
Rebekha Sharkie MP