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1998-1999-2000-2001
THE PARLIAMENT OF THE
COMMONWEALTH OF AUSTRALIA
THE
SENATE
INTERACTIVE GAMBLING
BILL 2001
SUPPLEMENTARY EXPLANATORY
MEMORANDUM
Amendments to be moved on behalf of the
Government
(Circulated by authority of Senator the Minister
for Communications,
Information Technology and the Arts, Senator the Hon.
Richard Alston)
ISBN: 0642 460027
AMENDMENTS TO INTERACTIVE GAMBLING BILL
2001
OUTLINE
The Interactive Gambling Bill 2001 (the Bill) provides for restrictions
and complaints in relation to interactive gambling services. The framework in
the Bill has two main elements. Firstly it creates an offence of providing an
Australian-based interactive gambling service to customers in Australia.
Secondly the Bill establishes a complaints scheme which will enable Australians
to make complaints about interactive gambling services on the Internet which are
available to Australians.
The proposed Government Amendments to the
Interactive Gambling Bill 2001:
• exempt lotteries from the scope
of the Bill;
• exempt wagering from the scope of the
Bill;
• clarify that television games and trade promotions are exempt
from the scope of the Bill;
• clarify that linked jackpot gaming
machines and other gaming services that are provided to customers who are in a
public place are exempt from the scope of the Bill;
• extend the
offence of providing an interactive gambling service to persons in Australia
extraterritorially so that it applies to offshore interactive gambling service
providers;
• insert into the main offence provision further matters
that can be taken into account regarding the defence of reasonable
diligence;
• introduce a new Part 7A of the Bill to prohibit the
advertising of interactive gambling services in Australia;
and
• clarify certain investigation powers of the Australian
Broadcasting Authority regarding the complaints system in Part 3 of the
Bill.
Exemption of lotteries
The proposed amendments to
Part 1 of the Bill (Amendments (9), (18), (22) and (27)) give effect to the
Government decision to exempt lotteries by clarifying that a gambling service
does not include a service for the conduct of a lottery or a service for the
supply of lottery tickets. The exemption of lotteries reflects the majority
report on the Bill by the Senate Legislation Committee on Environment,
Communications, Information Technology and the Arts, which recommended that the
Bill be amended to exclude lotteries and lotto. The exemption also reflects the
1999 Productivity Commission report on gambling industries, in which the
Commission found that there is minimal problem gambling behaviour associated
with lotteries.
The lottery exemption does not, however, cover
electronic forms of scratch lotteries or other instant lotteries (see Amendment
(27)). This reflects Government concerns that electronic forms of instant
lottery products offer a potential avenue for ‘instant’ gambling
which is not unlike Internet-based poker machines, and therefore should be
banned by the Bill.
Exemption of wagering
The proposed
amendments to Part 1 of the Bill (Amendments (10), (18), (22) and (24)) give
effect to the Government decision to exempt wagering from the scope of the Bill,
with the exception of ball-by-ball or micro-event wagering, which will continue
to be within the scope of the prohibition. This reflects the operation of the
Interactive Gambling (Moratorium) Act 2000, which exempted wagering
before an event had commenced from the operation of that Act. The removal of
wagering from the Bill recognises that Internet wagering is essentially a
substitute for telephone betting, and the racing industry—one of
Australia’s largest employers—already relies on the delivery of
services through Internet wagering, especially in regional
areas.
Television games and trade promotions
Proposed
amendments to Part 1 of the Bill (Amendments (6), (7), (18), (22) and (26))
address concerns that the Bill may operate so as to unintentionally ban
interactive television game shows or promotions where there is some form of
entry fee such as a 1900 telephone call. The amendments provide that gambling
services expressly and exclusively associated with particular broadcast or
datacast programs, and certain promotions associated with broadcast or datacast
advertisements, are excluded from the Bill.
An additional amendment to
Part 8 of the Bill (Amendment (33)) provides for a Ministerial review of this
exemption. The intention of the review is to address the possible expansion
over the next few years of interactive TV games and promotions, and ensure such
an expansion does not lead to adverse social consequences even though such
services may not be ‘gambling’ in the usually understood sense.
Linked jackpot poker machines and other established gaming services
Legal advice has indicated that the Bill may prohibit established
gaming services that happen to use communications links, such as poker machines
connected between and possibly within licensed premises. Proposed amendments to
Part 1 of the Bill (Amendments (8), (18), (22) and (25)) provide that gaming
services provided to customers in a public place are exempt from the Bill. The
amendments provide that a ‘public place’ is a place or part of a
place to which the public ordinarily has access, and include a shop, casino, bar
or club.
The effect of the amendment, in combination with clause 69 of
the Bill, is to exclude gaming services provided in accordance with a State or
Territory law where they are provided to customers in a public place. (Clause
69 of the Bill preserves any State or Territory laws that are capable of
operating concurrently with the Bill.)
Extraterritorial application of
main offence provision
Amendments to Parts 1 and 2 of the Bill
(Amendments (2) to (5), (11) to (15), (17), (23), and (28) to (31)) extend the
offence of providing an interactive gambling service to persons in Australia to
offshore providers. This means that any interactive gambling operator, either
within or outside Australia, would be committing an offence
if it had
customers in Australia.
The amendments provide for this change by
removing the ‘Australian-provider link’ that currently applies in
clause 7 of the Bill. The extraterritorial extension of the offence is subject
to section 15.4 of the Criminal Code, which relates to extended
geographical jurisdiction.
Defence of reasonable
diligence
Amendment (31) to Part 2 of the Bill adds detail to the
defence of ‘reasonable diligence’ to the offence of providing an
interactive gambling service to persons in Australia.
Advertising
ban
Amendment (32) inserts a new Part 7A of the Bill to prohibit the
advertising of interactive gambling services. The prohibition applies to both
online and offline advertising of interactive gambling in Australia and the
external territories.
The proposed prohibition in Part 7A is to apply to
any person who publishes or broadcasts an advertisement in Australia for any
interactive gambling service (whether or not the interactive gambling service
has any Australian customers), subject to certain exceptions set out in Part 7A.
The proposed prohibition does not extend to advertisements published in overseas
media such as magazines published overseas or websites that are aimed at
non-Australian audiences.
The amendments are modelled broadly on the
Tobacco Advertising Prohibition Act 1992 (the Tobacco Act). The
amendments include transitional provisions modelled on the equivalent provisions
in the Tobacco Act to accommodate existing arrangements relating to the
advertising of interactive gambling services.
There are two general
offences:
• an offence of broadcasting an interactive gambling
advertisement in Australia; and
• an offence of publishing an
interactive gambling advertisement in Australia.
Investigation
powers of the Australian Broadcasting Authority
Proposed amendments
(19) and (20) clarify that the Australian Broadcasting Authority (ABA), when
investigating complaints about prohibited Internet gambling content under Part 3
of the Bill, will need to establish that the service could be accessed by end
users in Australia, rather than prove that the service actually has customers.
Establishing that a service actually has customers would lead to more onerous
and resource-intensive investigations on the part of the ABA.
FINANCIAL IMPACT STATEMENT
The proposed Government amendments are not expected to have any
significant financial impact on Commonwealth expenditure or revenue.
NOTES ON AMENDMENTS TO
THE
INTERACTIVE GAMBLING BILL
2001
AMENDMENT (1)
Amendment (1) makes consequential amendments to the commencement
provision in clause 2 of the Bill as a result of proposed amendments relating to
the prohibition on advertising of interactive gambling services in new Part 7A
of the Bill.
Subclause 2(2), as proposed to be amended, will provide
that the advertising prohibition commences on the 28th day after the
day on which the Bill receives the Royal Assent.
This will mean that the
prohibition on the advertising of interactive gambling services will commence at
the same time as the prohibition on providing interactive gambling services to
customers in Australia. This will provide industry, including interactive
gambling services providers, advertisers and broadcasters with additional lead
time to put in place appropriate arrangements to avoid contravening the
advertising prohibition.
AMENDMENTS (2) AND (3)
Clause 3 of the Bill sets out a simplified outline of the Bill to assist
readers.
Amendment (2) amends the simplified outline by omitting the
reference to ‘Australian-based’ contained in the first dot point of
the outline. This is a consequence of Amendments (15) and (23), which remove
the need for an Australian-provider link for the offence of providing an
interactive gambling service to persons physically present in Australia. The
removal of the Australian-provider link from the offence provision in clause 15
is explained in detail below in relation to Amendment (15).
Amendment
(3) amends the simplified outline as a consequence of Amendment (32). Amendment
(32) will introduce a new Part 7A of the Bill to prohibit the advertising of
interactive gambling services.
AMENDMENTS (4) AND (5)
Amendment (4) removes the definition of ‘Australian-based
interactive gambling service’ as a consequence of the extension of the
offence provision in clause 15 to persons located outside Australia.
Amendment (5) omits the definition in clause 4 of ‘Australian-provider
link’ as a consequence of the extension of the offence provision in clause
15 to persons located outside Australia.
AMENDMENTS (6) AND (7)
Amendment (6) provides for a new definition of ‘designated
broadcasting link’, which is defined to have a meaning given by new clause
8C. New clause 8C, set out in Amendment (25), provides that for the purposes of
the Bill a gambling service has a designated broadcasting link where the
conditions of paragraphs 8C(1)(a) and (b) are satisfied.
Amendment (7)
provides for a new definition of ‘designated datacasting link’,
which is defined to have a meaning given by new clause 8C. New clause 8C, set
out in Amendment (25), provides that for the purposes of the Bill a gambling
service has a designated datacasting link where the conditions of paragraphs
8C(2)(a) and (b) are satisfied.
A gambling service that has a designated
broadcasting link or a designated datacasting link is an excluded service for
the purposes of subclauses 5(3) and 6(3) of the Bill. Consequently it does not
come within the offence provision in clause 15, and does not come within the
scope of the complaints system in Part 3 of the Bill.
AMENDMENT (8)
Amendment (8) provides for a new definition of ‘excluded gaming
service’, which is defined to have a meaning given by new clause 8B. New
clause 8B, set out in Amendment (25), provides that an excluded gaming service
is a service for the conduct of a game covered by paragraph (e) of the
definition of ‘gambling service’ in section 4, to the extent to
which the service is provided to customers who are in a public place.
An
excluded gaming service is an excluded service for the purposes of subclauses
5(3) and 6(3) of the Bill. Consequently it does not come within the offence
provision in clause 15, and does not come within the scope of the complaints
system in Part 3 of the Bill.
AMENDMENT (9)
Amendment (9) provides for a new definition of ‘excluded lottery
service’, which is defined to have a meaning given by new clause 8D. New
clause 8D, set out in Amendment (27), provides that an excluded lottery service
is a service for the conduct of a lottery of a service for the supply of lottery
tickets. New subclause 8D(2) provides that an excluded lottery service does not
apply to an electronic form of scratch lottery of other instant
lottery.
An excluded lottery service is an excluded service for the
purposes of subclauses 5(3) and 6(3) of the Bill. Consequently it does not come
within the offence provision in clause 15, and does not come within the scope of
the complaints system in Part 3 of the Bill.
AMENDMENT (10)
Amendment (10) provides for a new definition of ‘excluded wagering
service’, which is defined to have a meaning given by new clause 8A. New
clause 8A, set out in Amendment (24), provides that an excluded wagering service
is a service that satisfies the conditions in paragraphs 8A(1)(a) and (b) and
the conditions in subclauses 8A(2) and (3).
An excluded wagering service
is an excluded service for the purposes of subclauses 5(3) and 6(3) of the Bill.
Consequently it does not come within the offence provision in clause 15, and
does not come within the scope of the complaints system in Part 3 of the Bill.
AMENDMENT (11)
Amendment (11) inserts a new definition of ‘interactive gambling
service’. This new definition replaces the definition of
‘Australian interactive gambling service’ as a consequence of the
extension of the offence provision in clause 15 to persons located outside
Australia. The change to the definition is discussed in more detail below in
relation to Amendment (15).
‘Interactive gambling service’ is defined to have a meaning given
by amended clause 5, which provides that an interactive gambling service is a
gambling service (defined in clause 4 of the Bill) where the conditions in
subclause 5(1) are satisfied and the service is not an excluded service.
The term ‘interactive gambling service’ is used in the offence
provision in clause 15 of the Bill. The term is also used in the new
prohibition on the advertising of interactive gambling services in new Part 7A
of the Bill.
AMENDMENT (12)
Amendment (12) amends the heading to clause 5 of the Bill. The current
heading to clause 5 is ‘Australian-based interactive gambling
services’. The amendment removes the words ‘Australian-based’
and changes the heading to ‘Interactive gambling services’. This
reflects the proposed changes to the offence provision in clause 15, which
extend the offence so it applies to both overseas and Australian-based providers
of interactive gambling services, rather than just Australian-based providers.
AMENDMENTS (13) AND (14)
Amendments (13) and (14) amend clause 5 of the Bill, which in its current
form sets out the definition of ‘Australian-based interactive gambling
service’.
Amendment (13) omits the words
‘Australian-based’ in subclause 5(1) so that it refers to an
‘interactive gambling service’.
Amendment (14) makes a minor
amendment to subparagraph 5(1)(b)(v) by omitting ‘service; and’ and
substituting ‘service’. This takes into account the deletion of
paragraph 5(1)(c) of the Bill.
AMENDMENT (15)
Amendment (15) amends subclause 5(1) of the Bill by removing paragraph (c).
Current paragraph 5(1)(c) of the Bill provides that an
‘Australian-based interactive gambling service’ is a gambling
service where, in addition to conditions in paragraphs (a) and (b), the service
has an Australian provider link as provided for by paragraph (c).
The
effect of removing the Australian provider link in paragraph (c) is to extend
the application of the offence offshore so that it applies to all providers of
interactive gambling services, not just Australian-based ones, when they provide
those services to Australians. This means that any interactive gambling
operator, either within or outside Australia, would be committing an offence if
it had customers in Australia. This is intended to serve as a strong deterrent
to foreign operators soliciting Australian customers.
The
extraterritorial effect of the offence is specifically provided for by new
subclause 15(5), as inserted by Amendment (31). New subclause 15(5) provides
that section 15.4 of the Criminal Code applies to the offence in clause
15(1). Section 15.4 of the Criminal Code, as set in the Criminal Code
Act 1995, relates to extended geographical jurisdiction, and is discussed in
more detail in relation to Amendment (31).
AMENDMENT (16)
Amendment (16) amends the note at the end of clause 5 of the Bill by
including a reference to new Part 7A. The term ‘interactive gambling
services’ is used in Part 7A of the Bill, which prohibits the advertising
of interactive gambling services.
AMENDMENT (17)
Amendment (17) omits the words ‘Australian-based’ in
subclause 5(3) so that it refers to an ‘interactive gambling
service’. This is a consequence of the changes made by Amendment (15) as
discussed above.
AMENDMENT (18)
Amendment (18) creates additional exemptions to the main offence in
clause 15 of providing interactive gambling services to customers in
Australia.
The amendment provides that none of the following services is
an interactive gambling service for the purposes of the offence
provision:
• an excluded wagering service;
• an excluded
gaming service;
• services that have a designated broadcasting link;
• services that have a designated datacasting link; and
• an
excluded lottery service.
These interactive gambling services are
excluded even though they may utilise telecommunications or other communications
services listed in paragraph 5(1)(b) of the Bill. The amendment is intended to
exclude all forms of these services, whether they are provided on-line or
through more traditional ‘offline’ means.
The term
‘excluded wagering service’ is defined in new section 8A of the
Bill, as set out in Amendment (24). The term ‘excluded gaming
service’ is defined in new section 8B, as set out in Amendment (25). The
terms ‘designated broadcasting link’ and ‘designated
datacasting link’ are defined in new section 8C, as set out in Amendment
(26). The term ‘excluded lottery service’ is defined in new section
8D, as set out in Amendment (27).
AMENDMENT (19)
Amendment (19) amends the definition of ‘prohibited Internet
gambling service’ in clause 6 of the Bill by replacing current paragraph
6(1)(c) with a new paragraph. New paragraph 6(1)(c) provides that a prohibited
Internet gambling service is a gambling service where, under new paragraph (c),
an individual who is physically present in Australia is capable of becoming a
customer of the service. ‘An individual’ refers to a natural
person.
The effect of the proposed amendment is that the Australian
Broadcasting Authority (ABA), when investigating complaints about prohibited
Internet gambling content under Part 3 of the Bill, will need to establish that
the service could be accessed by end users in Australia, rather than prove that
the service actually has customers. Establishing that a service actually has
customers would lead to more onerous and resource-intensive investigations on
the part of the ABA. If in the course of an investigation under Division 2 of
Part 3 the ABA is satisfied that Internet content hosted outside Australia is
prohibited Internet gambling content, the ABA must take certain steps set out in
subclause 24(1) of the Bill.
AMENDMENT (20)
Amendment (20) inserts a new subclause 6(1A) relating to prohibited
Internet gambling services.
Subclause 6(1A) provides that for the
purposes of new paragraph 6(1)(c), discussed above in relation to Amendment
(19), in determining whether a person physically present in Australia is capable
of becoming a customer of a gambling service, it is to be assumed by the
investigating body that the person will not falsify or conceal his or her
identity or location. This reflects the intention that new paragraph 6(1)(c)
should be interpreted in the context of an ordinary person, and assumes that an
ordinary customer would not deliberately conceal his or her identity or
location.
AMENDMENT (21)
Amendment (21) makes a minor drafting change to subclause 6(3) by
omitting ‘neither’ and substituting ‘none’ as a
consequence of the insertion of additional excluded services to subclause 6(3).
AMENDMENT (22)
Amendment (22) excludes additional specified services from the scope of
the complaints system in Part 3 of the Bill. Under the complaints system in
Part 3, Australians are able to complain to the ABA if they believe that
Australian customers can access prohibited Internet gambling content over the
Internet.
The amendment provides that none of the following services is
a prohibited Internet gambling service for the purposes of the complaints
system:
• an excluded wagering service;
• an excluded
gaming service;
• services that have a designated broadcasting link;
• services that have a designated datacasting link; and
• an
excluded lottery service.
The term ‘excluded wagering
service’ is defined in new section 8A of the Bill, as set out in Amendment
(24). The term ‘excluded gaming service’ is defined in new section
8B, as set out in Amendment (25). The terms ‘designated broadcasting
link’ and ‘designated datacasting link’ are defined in new
section 8C, as set out in Amendment (26). The term ‘excluded lottery
service’ is defined in new section 8D, as set out in Amendment
(27).
AMENDMENT (23)
Amendment (23) omits clause 7 of the Bill. This as a consequence of the
extension of the offence provision in clause 15 to persons located outside
Australia.
The major offence created by the Bill as currently drafted,
of providing an interactive gambling service to persons physically present in
Australia, applies to persons with an ‘Australian-provider link’ as
defined in current clause 7 of the Bill. This requires some connection to
Australia, either through carrying on a business in Australia or where the
central management and control of the service is in Australia.
The
removal of clause 7, which contains the definition of Australian-provider link
reflects the intention to extend the offence provision in clause 15 to both
Australian providers and other providers wherever they might be based. This is
discussed in more detail above in relation to Amendment (15).
AMENDMENT (24)
Amendment (24) inserts a new clause 8A to define ‘excluded wagering
service’.
For the purpose of new clause 8A, wagering services are
different to gaming services. Wagering is focused on a bet on an event or
contingency while gaming is focused on playing games of chance for money or
something else of value. In a wager, the bettor usually does not participate in
the actual event or contingency. In contrast, interactive gaming involves the
bettor in the game.
Paragraph 8A(1)(a) provides that an excluded wagering
service is a service that relates to betting on a horse race, harness race,
greyhound race or a sporting event, or a series of those races or sporting
events. ‘Sporting event’ is to be given its ordinary meaning.
Therefore, for example, a completed match of tennis is a sporting event, but if
only a part of that match is completed, for example just one game or set, then
it is not a sporting event for the purposes of subclause 8A(1).
Paragraph
8A(1)(b) provides that other wagering services that relate to betting on an
event, a series of events, or a contingency are also excluded wagering services.
In this context, a wager includes a bet on any outcome or event. For example, a
bet on the weather for a particular day would be a wager for the purposes of
this paragraph.
Paragraph 8A(1)(b) distinguishes an ‘event’
from a ‘series of events’. This is consistent with the
anti-hoarding provisions in Part 10A of the Broadcasting Services Act
1992, which also distinguish between ‘events’ and a
‘series of events’. For example, in the case of the game of
cricket, the ‘event’ would be characterised as a single cricket
match. However, the test series would be characterised as a ‘series of
events’. In the game of tennis, an individual tennis match would be an
‘event’. However a tennis tournament, such as the Australian Open,
would be characterised as a ‘series of events’.
Paragraphs
8A(1)(a) and (b) are intended to cover a service that introduces individuals who
wish to make or place bets to individuals who are willing to receive or accept
bets on the events or contingencies specified in those paragraphs. Such a
service would be a ‘service that relates to betting’ on those events
or contingencies.
Subclause 8A(2) is intended to exclude from the
definition of ‘excluded wagering service’ types of continuous
wagering, such as real-time ‘ball-by-ball’ betting on interactive
television, that could evolve into highly addictive and easily accessible forms
of interactive gambling. Another type of continuous wagering is ‘betting
on the run’, where a person bets after an event has commenced on the
outcome of that event. An example of betting on the run is where a person bets
on who will win a football match after that match has already started (for
instance, at half time).
These types of continuous wagering mentioned
above are also known as ‘micro-wagering’.
Paragraph 8A(2)(a)
provides that a service is not an excluded wagering service to the extent to
which it relates to betting on the outcome of a sporting event where the bets
are placed, made, received or accepted after the beginning of the event.
Therefore, for example, an interactive gambling service that enables the placing
of a bet on the result of a cricket match after the first ball has been bowled
is not an excluded wagering service. Such a service will be covered by the
offence provision in clause 15 of the Bill.
Paragraph 8A(2)(b) provides
that a service is not an excluded wagering service to the extent to which
it relates to betting on a contingency that may or may not happen in the course
of a sporting event, where the bets are made after the event has commenced.
Examples of such contingency betting after an event has commenced include who is
going to take the most wickets in a cricket match, whether the next ball in a
cricket match will take a wicket, who will serve the next ace in a tennis match
or who will win a tennis match after the first set has finished but before the
second set has commenced. Such micro-wagering services will be covered by the
offence provision in clause 15 of the Bill.
However paragraph 8A(2)(b)
does not cover services relating to betting on extraneous events unrelated to
the official course of an event, after an event has started. For example,
betting on the likelihood of rain during a cricket match, after the match has
begun, would not be categorised as a ‘contingency that may or may not
happen in the course of a ‘sporting event’. Consequently this would
mean that a service related to such betting would be an excluded wagering
service and will not be covered by the Bill.
Nor would subclause 8A(2)
cover betting services on the outcome of a tournament or series after the first
match within that tournament or series has begun. Subclause 8A(2) only covers
wagering on a sporting event after the event has begun. A ‘sporting
event’ refers to an individual event. It does not cover wagering on a
‘series of sporting events’, such as a tournament or series, after
an individual event has begun. Paragraph 8A(2)(b) clearly distinguishes between
an ‘event’ and a ‘series of events’ (see discussion
above on paragraph 8A(2)(b)). Consequently, betting services on the final
outcome of a cricket test series after the first cricket match has begun would
not be covered by subclause 8A(2) and therefore would be excluded from the
Bill.
Paragraphs 8A(3)(a) and (b) provide that a service for the conduct
of a scratch lottery or other instant lottery, or the service for the supply of
tickets in a scratch lottery or other instant lottery is not an excluded
wagering service for the purposes of clause 8A. Paragraph 8A(3)(c) provides
that a service relating to the betting on the outcome of a scratch lottery or
other instant lottery is not an excluded wagering service for the purposes of
clause 8A. Paragraphs 8A(3)(a) to (c) relate to excluded lottery services in
new clause 8D and ensure that services which are properly characterised as
interactive lottery services do not come within the exemption provided in new
paragraph 5(3)(aa) of the Bill. For example, the betting on the outcome of an
electronic instant scratch ticket service would not be excluded wagering service
and will still be subject to the offence provision in clause 15 of the
Bill.
Paragraph 8A(3)(d) provides that a service for the conduct of a
game covered by paragraph (e) of the definition of ‘gambling
service’ in clause 4 of the Bill is not an excluded wagering service for
the purposes of clause 8A. Games relevant to this paragraph are games played
for money or anything else of value, which are of chance or mixed skill and
chance and involve the customer giving consideration to play or enter the game.
Examples of such games include roulette and games played on poker machines.
There is no skill involved in these games.
Paragraph 8A(3)(e) provides
that a service that relates to betting on the outcome of a game of chance or of
mixed chance and skill is not an excluded wagering service for the purposes of
clause 8A.
For example, an interactive gambling service which involves
a game of virtual roulette, or bet on the outcome of the spin of a virtual
roulette wheel, would not be an excluded wagering service and will still be
subject to the offence provision in clause 15 of the Bill. This ensures that
services which are properly characterised as interactive gaming services do not
come within the exemption provided in new paragraph 5(3)(aa) of the
Bill.
The effect of new clause 8A, in combination with paragraph 5(3)(aa)
of the Bill, is that an excluded wagering service is not an ‘interactive
gambling service’. Consequently it does not come within the offence
provision in clause 15. Similarly, paragraph 6(3)(ab) provides that an excluded
wagering service does not come within the complaints system in relation to
prohibited Internet content, set out in Part 3 of the Bill.
AMENDMENT (25)
Amendment (25) inserts a new clause 8B to define ‘excluded gaming
service’.
Subclause 8B(1) provides that an excluded gaming
service is a service for the conduct of a game covered by paragraph (e) of the
definition of ‘gambling service’ in clause 4 of the Bill, to the
extent to which the service is provided to customers who are in a public
place.
Games covered by paragraph (e) of the definition of
‘gambling service’ in clause 4 are games played for money or
anything else of value, which are of chance or mixed skill and chance and
involve the customer giving consideration to play or enter the game. Examples
of such games include roulette, games played on poker machines and games played
on machines that utilise linked jackpots. There is no skill involved in these
games.
Subclause 8B(2) provides for definitions of ‘public
place’ and ‘section of the public’.
A ‘public
place’ means a place or part of a place to which the public ordinarily has
access whether or not by payment or by invitation. ‘The public’
includes a ‘section of the public’. Examples of public places
include a shop, casino, bar or club.
‘Section of the public’
includes the members of a particular club, society or organisation. This means
that “members-only” clubs, which provide traditional gambling
services such as poker machines, are included in the definition of ‘public
place’. ‘Section of the public’ does not include a group
consisting only of persons with a common workplace or a common employer. It is
not intended that common workplaces be included in the definition of
‘public place’.
The effect of new clause 8B, in combination
with paragraph 5(3)(ab) of the Bill, is that an excluded gaming service is not
an ‘interactive gambling service’. Consequently it does not come
within the offence provision in clause 15. Similarly, paragraph 6(3)(ab)
provides that an excluded gaming service does not come within the complaints
system in relation to prohibited Internet content, set out in Part 3 of the
Bill.
The effect of paragraph 5(3)(ab), in combination with clause 69 of
the Bill, is to exclude gaming services provided in accordance with a State or
Territory law where they are provided to customers in a public place.
Clause 69 of the Bill preserves any State or Territory laws that are
capable of operating concurrently with the Bill. Therefore, a gaming service
that is provided in accordance with State or Territory laws and that is provided
to customers in a public place as defined in subclause 8B(2) will not be in
breach of the Bill or the relevant State or Territory law.
The words
‘to the extent’ in subclause 8B(1) make it clear that interactive
gambling services are only exempt from the offence provision of the Bill if they
are provided wholly in a public place.
This will impact on the
provision of gambling services through new interactive broadcasting services and
wireless telecommunications services technology. With such technology, the only
way an interactive gambling service provider could be certain of avoiding a
breach of the offence provision is for that provider to ensure that the means of
accessing its gaming service is fixed in a public place. An example of a
gaming service that is fixed in a public place is a poker machine in a club or
casino.
If a gambling service provider uses technology that cannot
guarantee that the gaming service will not be accessed in non-public places then
it risks breaching the offence provisions of the Bill. This reflects the
intention of the Bill to ensure that people do not have ready access to
interactive gambling services in a private place such as their own
home.
The definition of ‘excluded gaming services’ ensures
that gaming services will not be offered in public places such as Internet cafes
and shopping centres unless the relevant gambling service provider can ensure
that the services can only be accessed in those places, and are provided in
accordance with relevant State or Territory laws. Therefore, an interactive
gaming service that can be accessed in both an Internet cafe and a private home
would result in the provider being in breach of the Bill, because the definition
applies only to gaming services provided wholly in public places.
If it
were hypothetically possible to offer interactive gaming services that were only
accessible in certain Internet cafes (or other ‘fixed’ public
places) then those fixed places would need to meet the strict licensing
requirements under the relevant State or Territory laws.
Prohibited
Internet gambling content hosted outside Australia, which could be accessed in
public places like Internet cafes, is subject to the complaints mechanism set
out in Part 3 of the Bill. Action can be taken by the Australian Broadcasting
Authority in relation to such content under Division 3 of Part 3 of the
Bill.
AMENDMENT (26)
Amendment (26) inserts a new clause 8C to define ‘designated
broadcasting link’ and ‘designated datacasting link’.
For the purposes of new paragraph 8C(1)(a) of the Bill a gambling
service has a ‘designated broadcasting link’ if
either:
• the service is expressly and exclusively associated with
a particular program, or a particular series of programs, broadcast on a
broadcasting service; or
• the sole purpose of the gambling service is
to promote goods or services (other than gambling services) that are the subject
of advertisements broadcast on a broadcasting service, and the gambling service
is associated with those advertisements.
For the purposes of new
paragraph 8C(1)(b) of the Bill a gambling service has a ‘designated
broadcasting link’ if other conditions that are specified in the
regulations have been satisfied.
For the purposes of new paragraph
8C(2)(a) of the Bill a gambling service has a ‘designated datacasting
link’ if either:
• the service is expressly and exclusively
associated with a particular program, or a particular series of content,
transmitted on a datacasting service; or
• the sole purpose of the
gambling service is to promote goods or services (other than gambling services)
that are the subject of advertisements transmitted on a datacasting service, and
the gambling service is associated with those advertisements.
For the
purposes of new paragraph 8C(2)(b) a gambling service has a ‘designated
datacasting link’ if other conditions that are specified in the
regulations have been satisfied.
Subclause 8C(3) defines
‘content’ and ‘program’ for the purposes of new clause
8B. ‘Content’ in relation to a datacasting service does not include
advertising or sponsorship material. ‘Program’ has the same meaning
as in the Broadcasting Services Act 1992 (BSA) but does not include
advertising or sponsorship material.
New clause 8C is intended to cover
television game shows that involve an element of interactivity and include some
form of entry fee such as a 1900 telephone call. Examples of games on TV
programs that include some element of interactivity and are intended to be
covered by this exemption are ‘Classic Catches’ and programs like
‘Big Brother’ and ‘Video Hits’ that involve television
viewers voting for prizes. Clause 8B is also intended to cover promotions or
games conducted on television or over the Internet that involve consideration
including, for example, the purchase of a product.
Subparagraph
8C(1)(a)(i) is intended to cover services that are expressly and exclusively
associated with a particular program. This would include, for example, a viewer
paying an entry fee and voting on the Internet for his or her favourite song
where that song was played on a particular television program and the Internet
entry was specifically linked to that program. These services are intended to
be exempt from the Bill.
Subparagraph 8C(1)(a)(ii) is intended to cover
services that are have the sole purpose of promoting goods or services (other
than gambling services) that are included in televised advertisements, and the
services are associated with those advertisements. Examples of such services
include prize draws conducted through advertising campaigns. Such a promotional
service might require a person to purchase a soft drink, enter the barcode of
that soft drink into an Internet-based draw, and possibly win a prize as the
result of that draw. These services are intended to be exempt from the
Bill.
For subclause 8C(1), ‘broadcasting service’ has the
same meaning as in the Broadcasting Services Act 1992, as provided for in
current clause 4 of the Bill, and includes television and radio
services.
New subclause 8C(2) is intended to cover the same services
covered by subclause 8C(1), but where those services are transmitted on a
datacasting service.
For subclause 8C(2), ‘datacasting
service’ has the same meaning as in the Broadcasting Services Act
1992, as provided for in current clause 4 of the Bill.
Paragraphs
8C(1)(b) and 8C(2)(b) provide that in addition to the condition in paragraph (a)
of each subclause being satisfied, a gambling service has a designated
broadcasting or datacasting link if such other conditions (if any) as are
specified in the regulations have been satisfied. The effect of these
paragraphs is to give the Minister a reserve power allowing him or her to impose
further conditions on broadcasters and datacasters, though regulations, relating
to the exemption for TV game shows and promotions. This reserve power would
allow the Minister to monitor the ongoing development of these services and
ensure the proposed exemption will not be used as a platform for the significant
extension of gambling in the home environment.
Clause 8C is not intended
to cover interactive games such as trivia games and arcade games of skill that
are or may become available through subscription-based broadcasting services,
digital broadcasting services or datacasting services. Such interactive games
are generally regarded as games of skill for the purposes of the definition of
‘gambling service’ in clause 4 of the Bill. Therefore, they are not
intended to be covered by the Bill, whether a fee is charged to play such games
and whether such games are played for prizes or not. As a result, such games do
not need to be exempted from the offence provision in clause 15 of the
Bill.
The reference to a game of mixed chance and skill in the definition
of ‘gambling service’ in clause 4 of the Bill is not intended to
include games that would generally be regarded to be games of skill even though
it could be argued that the outcome of those games might be affected by chance.
For example a trivia quiz game, available through interactive or
subscription-based television services, that requires competitors to answer
general knowledge questions will not be covered by the Bill as it does not
involve mixed chance and skill. It should be regarded as a game of
skill.
Similarly an arcade-style game, available through interactive or
subscription-based television services, should be regarded as a game of skill
even though it could be argued that there is an element of chance in relation to
playing the game. Examples of these arcade-style games include Tetris, Space
Invaders, Tomb Raider and Scrabble-type games.
Where such skill-based
quiz or arcade-style games involve interactive ‘leaderboards’, which
are lists of the top scoring players of the same game across the network or
subscriber base, they should still be regarded as games of skill because a
player’s overall skill in his or her performance will determine the
position of that player on the leaderboard.
The effect of new clause 8C,
in combination with paragraphs 5(3)(ac) and (ad) of the Bill, is that a gambling
service that has a designated broadcasting link or a designated datacasting link
is an excluded service for the purposes of the definition of an
‘interactive gambling service’. Consequently it does not come
within the offence provision in clause 15. Similarly, paragraphs 6(3)(ac) and
(ad) provide that an excluded gaming service does not come within the complaints
system in relation to prohibited Internet content, set out in Part 3 of the
Bill.
The operation of the exemption relating to television games and
trade promotions will be reviewed by 1 July 2003, as provided for in Amendment
(33) as described below.
AMENDMENT (27)
Amendment (27) inserts a new clause 8D to define ‘excluded lottery
service’.
Subclause 8D(1) provides that an excluded lottery service
is a service for the conduct of a lottery or a service for the supply of lottery
tickets. For clarification, the ordinary meaning of ‘lottery’ is
relevant to clause 8D. The ordinary meaning of lottery is discussed in the
original Explanatory Memorandum in relation to clause 4 of the Bill. It makes
reference to the Macquarie Dictionary definition of ‘lottery’, which
defines it as a ‘scheme or arrangement for raising money...by the sale of
a large number of tickets, certain among which, as determined by chance after
the sale, entitle the holders to prizes’.
The reference to
‘lottery’ in subclause 8D(1) is also intended to include reference
to ‘lotto’. ‘Lotto’ services include the sale of a
large number of tickets or entries, certain among which, as determined by a
chance event or draw after the sale, entitle the holders to prizes such as cash
jackpots. Examples of such lotto services that are intended to be covered by
the reference to ‘lottery’ are Tattslotto, Oz Lotto, Super 66 and
Powerball. ‘Keno’ is also intended to be covered by the reference
to ‘lottery’, but only when it is in the form of a lotto-based
service as described above.
Subclause 8D(2) provides that the
definition of ‘excluded lottery service’ does not apply to an
electronic form of scratch lottery of an electronic form of other instant
lottery. Traditional forms of scratch or other instant lotteries are lotteries
where the result and any prize is predetermined at the time of purchase or
entry, or is not subject to a separately scheduled drawing. These are not
covered by the Bill because they are non-electronic lotteries that involve a
physical ticket that a customer scratches or otherwise uses.
However,
when scratch or other instant lotteries are in electronic form, they are not
covered by the exclusion in subclause 8D(1) and are prohibited by operation of
the offence in clause 15 of the Bill of providing an interactive gambling
service. Scratch or other instant lotteries in electronic form are lotteries
where the result and prize is not determined by an independent or separate draw
held some time after the time of purchase. The result and prize may be
determined by a separate or random electronic process, but that process occurs
at a time instantaneous to the ‘scratching’ (or other form of
playing or use) of the electronic lottery ticket, and is not subject to a
separately scheduled drawing. Therefore, it is a scratch or other instant
lottery for the purposes of subclause 8D(2), and is not an ‘excluded
lottery service’.
An examples of a prohibited electronic scratch or
instant lottery is an ‘on-line’ scratch lottery ticket, which is
provided to the customer in a virtual form after that customer accesses an
‘on-line scratchies’ Internet site. After accessing an image of a
ticket, the customer controls a cursor and ‘scratches’ away a
covering picture on the ticket to reveal various figures representing amounts of
money. If the uncovered ticket reveals, for example, three matching figures,
then the customer wins a specified amount of money. This example is not an
‘excluded lottery service’ for the purposes of clause 8D.
The
effect of new clause 8D, in combination with paragraph 5(3)(ab) of the Bill, is
that an excluded lottery service is not an ‘interactive gambling
service’. Consequently it does not come within the offence provision in
clause 15. Similarly, paragraph 6(3)(ab) provides that an excluded lottery
service does not come within the complaints system in relation to prohibited
Internet content, set out in Part 3 of the Bill.
AMENDMENT (28)
Amendment (28) omits the words ‘Australian-based’ in the
heading to Part 2 of the Bill so that it refers to an ‘Offence of
providing an interactive gambling service to customers in Australia’.
This amendment is a consequence of the changes in Amendments (15) and
(23).
AMENDMENT (29)
Amendment (29) omits the words ‘Australian-based’ in the
heading to clause 15 of the Bill so that it refers to an ‘Offence of
providing an interactive gambling service to customers in
Australia’.
AMENDMENT (30)
Amendment (30) omits the words ‘Australian-based’ from the
main offence provision in paragraph 15(1)(a). The offence provision now
provides that a person is guilty of an offence if the person intentionally
provides an interactive gambling service and the service has an
Australian-customer link.
AMENDMENT (31)
Amendment (31) inserts new subclauses (4) and (5) into the offence
provision of providing an interactive gambling service to a customer in
Australia.
Subclause 5(4) provides detail for the defence of reasonable
diligence in current paragraph 15(3)(a) of the Bill. Subclause 5(4) provides
that in determining whether a person could, with reasonable diligence, have
ascertained that the service had an Australian-customer link, the following
matters are to be taken into account:
(a) whether prospective customers
were informed that Australian law prohibits the provision of the service to
customers physically present in Australia;
(b) whether customers had entered
a contractual relationship with the provider with an explicit condition that the
customer was not to use the service while physically located in
Australia;
(c) whether the person providing the service required customers to
provide personal details, and , if so, whether those details suggested that the
customer was not physically present in Australia;
(d) whether the person
providing the service has network data that indicates that a customer was
physically present outside Australia when the relevant customer account was
opened and throughout the period when the services were provided to the
customer; and
(e) any other relevant matters.
An example for the
matter provided for in paragraph 15(4)(a) is whether a customer was informed of
the prohibition through a disclaimer message posted on a website that offers the
service.
The matters outlined in paragraphs 15(4)(d) and (e) are intended
to cover any new technology that allows interactive gambling service providers
who are operating legally by providing their services wholly to customers
outside Australia to determine that their customers are physically present
outside Australia. Paragraph 15(4)(e) is also intended to cover any other
relevant matters not necessarily relating to technology.
Subclause 15(5)
provides that section 15.4 of the Criminal Code applies to the offence in
clause 15(1) of providing an interactive gambling service to a customer in
Australia. Section 15.4 of the Criminal Code, as set in the Criminal
Code Act 1995, relates to extended geographical jurisdiction and provides
that if a law of the Commonwealth applies section 15.4 of the Code to a
particular offence, the offence applies whether or not the conduct constituting
the alleged offence occurs in Australia and whether or not a result of the
conduct constituting the alleged offence occurs in Australia.
Subclause
15(5) ensures that the extraterritorial extension of the offence in clause 15 of
the Bill is done within the framework of Commonwealth criminal law policy, as
set out in the Criminal Code.
AMENDMENT (32)
Amendment (32) inserts a new Part 7A of the Bill to prohibit the
advertising of interactive gambling services.
New Part 7A establishes a
prohibition on both online and offline advertising of interactive gambling in
Australia and the external territories.
The proposed prohibition in Part
7A is to apply to any person who publishes or broadcasts an advertisement in
Australia for any interactive gambling service (whether or not the interactive
gambling service has any Australian customers), subject to certain exceptions
set out in Part 7A.
The proposed prohibition does not extend to
advertisements published in overseas media such as magazines published overseas
or websites that are aimed at non-Australian audiences.
The prohibition
extends to all forms of media, both electronic and non-electronic, including
advertising via the Internet, broadcasting, print media, billboards and
hoardings.
The amendments are modelled broadly on the Tobacco
Advertising Prohibition Act 1992 (the Tobacco Act). The amendments include
transitional provisions modelled on the equivalent provisions in the Tobacco Act
to accommodate existing arrangements relating to the advertising of interactive
gambling services.
There are two general offences:
• an
offence of broadcasting or datacasting an interactive gambling advertisement in
Australia; and
• an offence of publishing an interactive gambling
advertisement in Australia.
Clause 61AA sets out the key definitions used in Part 7A. These
definitions are discussed below.
The term ‘broadcast’ is defined to mean transmit by means of
a broadcasting service, and is used in Division 4 of Part 7A, which sets out the
prohibition of broadcasting or datacasting interactive gambling service
advertisements in Australia.
‘Broadcasting service’ is given a different meaning in Part
7A to the remainder of the Act. ‘Broadcasting service’ is defined
to mean a service that delivers television programs or radio programs to persons
having equipment appropriate for receiving that service, whether the delivery
uses the radiofrequency spectrum, cable, optical fibre, satellite or any other
means or a combination of those means, but does not include:
(a) a
datacasting service; or
(b) Internet video and audio streaming.
Paragraph (b) of the definition of ‘broadcasting service’
provides that Internet audio and video streaming are not a broadcasting service
for the purposes of Part 7A of the Bill. This is consistent with a Ministerial
determination made under paragraph (c) of the definition of ‘broadcasting
service’ in subsection 6(1) of the Broadcasting Services Act 1992
(the BSA) (Determination under paragraph (c) of the definition of
‘broadcasting service’ (No.1 of 2000)). The determination made it
clear that audio and video streaming over the Internet are not broadcasting
services for the purposes of the BSA.
The term ‘broadcasting service bands’ has the same meaning as
in the BSA.
The term ‘datacast’ is defined to mean transmit by means of a
datacasting service. The phrase ‘datacasting service’ is defined in
clause 4 of the Bill as introduced. ‘Datacast’ is used in Division
4 of Part 7A, which sets out the prohibition of broadcasting or datacasting
interactive gambling service advertisements in Australia. ‘Datacasting
service’ is already defined in clause 4 of the Bill and means in effect a
datacasting service provided by a licensed datacaster.
The term ‘display’ is defined to include continue to display.
‘Display’ is used in new clause 61CA, which sets out the meaning of
‘publish’.
The phrase ‘exempt library’ is defined in to mean a public
library, a library of a tertiary institution, or a library of an authority of
the Commonwealth or of a State or Territory. ‘Exempt library’ is
used in new clause 61CE, which establishes an exception to the meaning of
interactive gambling service advertisement in relation to ordinary activities of
exempt libraries.
The phrase ‘government or political matters’ is defined to
mean government or political matters relating to any level of government in
Australia, and includes:
(a) matters relating to any election or appointment
to public office; and
(b) political views or public conduct relating to
activities that have become the subject of political debate; and
(c) the
performance, conduct, capacity or fitness of a person elected, or seeking
appointment, to any public office; and
(d) the actions or policies of any
government in Australia or any Australian political party.
This phrase is
used in clause 61BB, which establishes the political communication exception to
the meaning of interactive gambling service advertisement.
The phrase ‘interactive gambling service provider’ is defined
to mean a person who provides an interactive gambling service.
The
phrase ‘interactive gambling service’ is to have the same meaning as
‘interactive gambling service’ as defined in clause 5 of the Bill,
without the requirement of an Australian provider link. It is used in clauses
61BC, 61BD, 61BE and 61CD.
The term periodical is defined to mean an issue of a newspaper, magazine,
journal, newsletter, or other similar publication, issues of which are published
at regular or irregular intervals. The term is used in clause 61EB relating to
periodicals distributed outside Australia.
The term ‘program’ is taken to have the same meaning as in
the BSA. The BSA defines ‘program’ in section 6 to mean:
(a) matter the primary purpose of which is to entertain, to educate or to inform an audience; or
(b) advertising or sponsorship matter, whether or not of a commercial kind.
The term is used in clause 61CA, which provides the basic meaning of ‘publish an interactive gambling service advertisement’.
The phrase ‘public place’ is defined to mean a place, or part
of a place, to which the public, or a section of the public, ordinarily has
access, whether or not by payment or by invitation (including, for example, a
shop, restaurant, hotel, cinema or club). Clause 61AA also defines
‘section of the public’, as set out below. The inclusion of a place
accessible by only a section of the public in the definition of ‘public
place’ is designed to allow ‘member’s only’ clubs to be
covered.
The term ‘publish’ is given a special meaning with respect to
an interactive gambling service advertisement in Division 3 of Part 7A. For
matters other than interactive gambling service advertisements,
‘publish’ is to have a meaning equally as broad as it has in
relation to interactive gambling service advertisements. Further explanation of
the definition of ‘publish’ in Division 3 is set out below.
The term ‘workplace’ is defined as a premises where
contractors or
employees work, other than a premises that is primarily used
as a private dwelling. The term is used in the definition of ‘section of
the public’.
• an interactive gambling service;
• interactive gambling
services in general;
• the whole or part of a trademark or design in
respect of an interactive gambling service, such as a domain name;
• a
domain name or URL that relates to an interactive gambling service;
or
• any other words that are closely associated with an interactive
gambling service, whether also closely associated with other kinds of services
or products.
In paragraph 61BA(1)(d), 'URL' has its ordinary meaning of
'uniform resource locator', which is the address of a document on the
Internet.
‘Interactive gambling service advertisement’ is
intended to cover more than just the promotion of an individual interactive
gambling service. For example, an advertisement that refers to a website where
details of interactive gambling services can be found should be regarded as
advertising for the purposes of Part 7A of the Bill.
Further, the term
is intended to cover both advertisements for particular interactive gambling
sites, such as “IGSP.com.au”, as well as the advertising of
particular interactive gambling services, such as online casinos.
Clause 61BA has effect subject to exceptions set out in proposed clauses
61BB, 61BC, 61BD, 61BE, 61BF and 61BG.
Clause 61BB clarifies that interactive gambling service advertisements
are permitted in the context of discourse on government and political matters,
provided the advertisements do not promote interactive gambling
services.
Subclause 61BB(1) provides that if an advertisement does not
promote and is not intended to promote any particular interactive gambling
service, and the advertisement relates solely to government or political
matters, the advertisement is not an interactive gambling service advertisement
for the purposes of Part 7A of the Bill.
Subclause 61BB(2) provides that
the use in an advertisement of the whole name of an interactive gambling service
provider does not itself constitute promotion of an interactive gambling service
or services for the purposes of paragraph 61BB(1)(a).
Subclause 61BB(3)
provides that subclause (2) does not apply to the use of names referred to in
that subclause in a way prohibited by regulations made for this subsection.
This is intended to prevent manipulation of the exemption set out in subclause
61BB(2).
Subclause 61BB(4) is a saving provision that provides that
clause 61BA does not apply to the extent that it would infringe any doctrine of
implied freedom of political communication.
Clause 61BC –
Exception—Internet sites etc. and business documents
The
exception in clause 61BC is intended to apply in a similar way to the exemption
in subsection 9(2) of the Tobacco Act that allows words to appear on tobacco
products and packaging.
The exception in clause 61BC provides that the
following material does not constitute an interactive gambling service
advertisement:
(a) words, signs or symbols that appear on the Internet
site of an interactive gambling service that is provided to customers using an
Internet carriage service or on or at an equivalent point of provision of any
other interactive gambling service; or
(b) words, signs or symbols that
appear on business documents of interactive gambling service providers, whether
or not the documents are in electronic form. Business documents include an
invoice, statement, order form, letterhead, business card, cheque, manual of
other document ordinarily used in the course of business.
However, this
does not prevent a still or moving screen shot of an Internet site or equivalent
point of provision referred to in (a) from being an interactive gambling service
advertisement. Likewise, it does not prevent a still or moving picture or other
visual image of business documents referred to in paragraph (b) from being an
interactive gambling service advertisement. The intention of this qualification
is that the exception for the material mentioned in paragraphs (a) and (b) does
not extend to the secondary transmission of that material.
The reference
to 'an equivalent point of provision of any other interactive gambling service'
in paragraph 61BC(a) is intended to include interactive gambling services
provided via means other than the Internet. This will include, for example,
interactive gambling services provided through interactive television, through
datacasting and through other interactive technologies.
Clause 61BD
– Exception—premises of providers
The exemption in clause
61BD is intended to cover words, signs or symbols
appearing on land or
buildings occupied by interactive gambling service providers. As with the
exception in clause 61BC, the exception for these words, signs and symbols does
not extend to secondary transmission of those things.
Clause 61BE
– Exception—management advertisements etc.
Clause 61BE is
intended to remove any doubt as to whether or not certain things fall within the
definition of interactive gambling service advertisement. The clause provides
that the following things are not to be considered interactive gambling service
advertisements for the purposes of Part 7A of the Bill:
• anything
that is required to be done under Commonwealth, State or Territory
laws;
• an advertisement relating to the internal management of the
business of an interactive gambling service provider, provided that the
advertisement does not promote the interactive gambling service. This could
include, for example, as advertisement in a newspaper or on the Internet for
staff or calling for tenders;
• the taking of any action to prevent
persons becoming victims of fraud or any other dishonest or unethical conduct.
This could include, for example, the publishing of a notice warning consumers of
the fraudulent offering of services supposedly connected with the interactive
gambling service provider who publishes the notice.
Clause 61BF
– Exception—products or services having the same name as an
interactive gambling service
Subclause 61BF(1) provides that an
advertisement for a product that is not an interactive gambling service, but
which by coincidence shares a name with an interactive gambling service or an
interactive gambling service provider, does not constitute an advertisement for
an interactive gambling service.
Paragraph 61BF(1)(b) provides that the
exception in paragraph (1)(a) only applies if the manufacturer, distributor or
retailer of the non-gambling product or the provider of the service is in on way
associated with the interactive gambling service provider
concerned.
Subclause 61BF(2) provides that two corporations that are
related to each other are taken to be associated with each other for the
purposes of subclause 61BF(1).
Subclause 61BF(3) states that for the
purposes of subclause (2), the question of whether two corporations are related
to each other will be determined in the same way that the question would be
determined under the Corporations Law.
Clause 61BG –
Exception—anti-gambling advertisements
Clause 61BG provides
that something, such as an anti-gambling advertisement, that is clearly intended
to discourage the use of interactive gambling services or particular kinds of
gambling services is not to be considered to be a ‘interactive gambling
service advertisement’ for the purposes of Part 7A of the
Bill.
Clause 61BH – Definition
Clause 61BH states
that for the purposes of Division 2 of Part 7A, ‘words’ includes
abbreviations, initials and numbers.
Division 3—Interpretation:
publication of interactive gambling service
advertisement
Clause 61CA – Basic meaning of publish an interactive
gambling service advertisement
Clause 61CA provides that for the
purposes of new Part 7A a person publishes an interactive gambling site if the
person does any of the following things:
• includes the
advertisement on an Internet site;
• includes the advertisement in a
document, including a newspaper, magazine, program, leaflet or ticket, that is
available or distributed to the public;
• includes the advertisement in
a film, video, television program or radio program that is or is intended to be
seen or heard by the public;
• the person sells or hires the
advertisement to the public, or offers it for sale, supply or hire to the
public;
• the person displays, screens or plays the advertisement so
that it can be seen or heard in a public place, on public transport or in a
workplace;
• the person otherwise brings the advertisement to the
notice of or disseminates the advertisement to the public by any means,
including for example, by means of a film, video, computer disk or electronic
medium.
For the above matters ‘the public’ includes a section
of the public. An advertisement includes something that contains the
advertisement
Clause 61CA has effect subject to exceptions set out in
proposed clauses 61CB, 61CC, 61CD, 61CE and 61CF.
Clause 61CB –
Publish does not include broadcast or datacast
Clause 61CB excludes
the broadcasting or datacasting of an interactive gambling service advertisement
from the definition of ‘publish an interactive gambling service
advertisement’. This is to avoid overlap between publishing and
broadcasting or datacasting, which are addressed separately in Part
7A.
Clause 61CC – Exception—trade
communications
Clause 61CC excludes from the definition of
‘publish’ the communication of information within the interactive
gambling service industry to people who are all involved in the interactive
gambling service industry.
Therefore, publishing an interactive gambling
service advertisement in a trade journal that goes only to people in the
interactive gambling service industry would not be ‘publishing an
interactive gambling service advertisement for the purposes of Part 7A.
However, if this journal containing interactive gambling service advertisement
was also available to the public or to people whose only involvement in the
industry is as consumers, then the publishing would be considered
‘publishing an interactive gambling service advertisement’.
Clause 61CD – Exception—advertisements in telephone
directories
Subclause 61CD(1) provides that the publishing of the
name of an interactive gambling service provider in a telephone directory does
not amount to the publication of an interactive gambling service
advertisement.
However, subclause (2) provides that subclause (1) does
not apply if the publication is on the Internet and the entry for the provider
contains a link to an Internet site for the provider that relates to an
interactive gambling service. Therefore, for example, a listing in an on-line
White Pages for an interactive gambling service provider that contains a link to
that provider’s Internet site will not come within the exception in this
clause.
An example of an acceptable listing for the purposes of
subclause (1) would be a listing on an Internet directory site that simply
provides information relating to an interactive gambling service
provider’s business address and telephone number, and does not provide any
link whatsoever to an interactive gambling service site.
Clause 61CE
– Exception—ordinary activities of exempt
libraries
Clause 61CE excludes from the definition of ‘publish
an interactive gambling service advertisement’ anything done on behalf of
an ‘exempt library’ for the normal practices of that
library.
Clause 61CF – Exception—acknowledgments of
assistance or support
Clause 61CF excludes from the definition of
‘publish an interactive gambling service advertisement’ limited
recognition of a sponsorship or some other arrangement of assistance or support.
However, such recognition must comply with relevant regulations made for the
purposes of this provision in order to qualify with this exception.
Division 4—Broadcasting or datacasting of interactive gambling service advertisements in Australia
Clause 61DA – Interactive gambling service advertisements not to
be broadcast or datacast in Australia
Subclause 61DA(1) provides that
a person is guilty of an offence if:
• the person broadcasts or
datacasts an interactive gambling service advertisement in Australia; and
• the broadcast or datacast is not permitted by section 61DB, which
relates to accidental or incidental broadcasts; and
• the broadcast or
datacast is not permitted by section 61DC, which relates to the broadcast or
datacast of advertisements during flights of aircraft.
Subclause 61DA(2)
provides that a person is guilty of an offence if:
• the person
authorises or causes an interactive gambling service advertisement to be
broadcast or datacast in Australia; and
• the broadcast or datacast is
not permitted by section 61DB; and
• the broadcast or datacast is not
permitted by section 61DC.
The penalty for the offences in subclauses
61DA(1) and (2) is 120 penalty units. A penalty unit is currently $110, so the
current maximum penalty for an individual is $13,200. Under subsection 4B(3) of
the Crimes Act 1914, if a body corporate is convicted of an offence
against a Commonwealth law, the Court may impose a penalty of up to 5 times the
amount of the maximum penalty that could be imposed on a natural person. As a
result, the current maximum penalty that could be imposed on a corporation is
$66,000.
The offences in clause 61DA do not specify fault elements, in
line with Commonwealth criminal law policy. In place of specified fault
elements, section 5.6 of the Criminal Code applies to the offences in
clause 61DA.
Section 5.6(1) of the Criminal Code provides that
if a fault element for a physical element consists only of conduct,
intention is the fault element for that physical element. Section 5.6(2)
provides that if a fault element for a physical element consists of a
circumstance or a result, recklessness is the fault element for that
physical element.
This ensures that the appropriate fault element of
intention applies to the physical element of conduct in the offences in clause
61DA, and the fault element of recklessness applies to the physical element of
circumstance or result in the offence.
Clause 61DB – Accidental
or incidental broadcast or datacast permitted
Clause 61DB permits an
interactive gambling service advertisement that is broadcast or datacast as an
accidental or incidental accompaniment to other matter provided the broadcaster
or datacaster does not receive any benefit additional to the benefit they
receive for broadcasting the other matter. The benefit need not be financial.
This will permit broadcasters and datacasters to include incidental
material that is technically advertising in their broadcasts or datacasts. For
example, this would permit the broadcast of an international sporting event at
an overseas venue where an interactive gambling service advertisement might be
permitted. If however, the broadcaster receives some benefit for the
interactive gambling service advertisement, additional to the benefit arising
from broadcasting the sporting event, the interactive gambling service
advertisement would not be permitted under this clause.
Subclause 61DB(2)
provides that subsection (1) only has effect for the purposes of Part
7A.
Clause 61DC – Broadcast or datacast of advertisements during
flights of aircraft
Subclause 61DC(1) permits the publication of
advertisements for interactive gambling services in an aircraft during a flight
of the aircraft, provided the flight does not commence and terminate within
Australia. The effect of this provision is to permit the advertising of
interactive gambling services on international flights. Such advertisements are
not permitted on domestic flights, which are flights starting at a place in
Australia and terminating within Australia.
For example, an advertisement
for interactive gambling services on a flight departing from Japan and arriving
in England would not be covered. Neither would an advertisement on a flight
from Paris to Australia. However, an advertisement for an interactive gambling
service on a flight from Sydney to Perth would be prohibited as the flight
begins and ends within Australia.
Subclause 61DC (2) provides that each
sector of a flight of an aircraft is to be taken to be a separate flight. This
covers flights with various stops between the departure point and the eventual
destination. For example, a flight might commence in Sydney, stop in Perth, and
continue on to London. The flight from Sydney to Perth, and the flight from
Perth to London, are treated as separate flights for the purposes of subclause
(2). As a result, an interactive gambling advertisement broadcast during the
flight from Sydney to Perth would be prohibited, but if the advertisement was
broadcast during the flight from Perth to London, the advertisement would be
permitted.
Subclause 61DC(3) provides that subsection (1) only has effect
for the purposes of Part 7A.
Clause 61EA – Interactive gambling service advertisements not to
be published in Australia
Clause 61EA prohibits the publication of
advertisements for interactive gambling services in Australia.
Subclause
61EA(1) provides that a person is guilty of an offence if:
• the
person publishes an interactive gambling service advertisement in Australia; and
• the publication is not permitted by section 61EB, which relates to
periodicals distributed outside Australia; and
• the publication is not
permitted by section 61EC, which relates to Australian sporting and cultural
events of international significance; and
• the publication is not
permitted by section 61ED, which relates to accidental or incidental
publication; and
• the publication is not permitted by section 61EE,
which relates to publications by persons not receiving any benefit;
and
• the publication is not permitted by section 61EF, which relates
to publication of advertisements during flights of aircraft.
Subclause
61EA(2) provides that a person is guilty of an offence if:
• the
person authorises or causes an interactive gambling service advertisement to be
published in Australia; and
• the publication is not permitted by
section 61EB; and
• the publication is not permitted by section 61EC;
and
• the publication is not permitted by section 61ED;
and
• the publication is not permitted by section 61EE;
and
• the publication is not permitted by section 61EF.
The
penalty for the offences in subclauses 61EA(1) and (2) is 120 penalty units. A
penalty unit is currently $110, so the current maximum penalty for an individual
is $13,200. Under subsection 4B(3) of the Crimes Act 1914, if a body
corporate is convicted of an offence against a Commonwealth law, the Court may
impose a penalty of up to 5 times the amount of the maximum penalty that could
be imposed on a natural person. As a result, the current maximum penalty that
could be imposed on a corporation is $66,000.
As discussed above in
relation to the offences in clause 61DA, the offences in clause 61EA also do not
specify fault elements. In place of specified fault elements, section 5.6 of
the Criminal Code therefore applies to the offences in clause 61EA.
This ensures that the appropriate fault element of intention applies to
the physical element of conduct in the offences in clause 61EA, and the fault
element of recklessness applies to the physical element of circumstance or
result in the offence.
Subclause 61EA(3) sets out the circumstances where
an interactive gambling service advertisement published on an Internet site will
be considered to have been published in Australia. Publication will be taken to
have occurred in Australia if two conditions are satisfied. First, the site
must be accessible for users in Australia. Second, the content and marketing of
the site must indicate that the majority of users accessing the site are
physically present in Australia.
An example for the first condition, as
set out in paragraph 61EA(3)(a), is a site that does not block users from
registering with the site if they supply an Australian address. An example for
the second condition, as set out in paragraph 61EA(3)(b), is a site that
contains reports of events occurring in Australia, results of sporting matches
held in Australia, reports from Australian stock markets and Australian weather
reports. A site that had an international focus with little or no mention of
matters specific to Australia would not be a site for the purposes of paragraph
(3)(b). ‘Time.com’ and ‘CNN.com’ are examples of
international Internet sites that would not come within paragraph (3)(b).
Clause 61EB – Periodicals distributed outside
Australia—acts of publication permitted
Subclause 61EB(1)
permits interactive gambling service advertisements to be published in any
magazine, newspaper, journal or similar document that is not principally
intended for the Australian market. Therefore, for example, such documents can
be printed in Australia but only where those documents are not principally
intended for the Australian market and are thus mostly distributed outside
Australia.
Advertisements for interactive gambling services would not be
permitted in the Australian edition of a periodical. Likewise, it would not be
permitted in a periodical which has more than 50 percent of its readership in
Australia, which is an example of a periodical that is ‘principally
intended for the Australian market’.
Subclause 61EB(2) provides
that subclause (1) only has effect for the purposes of Part 7A of the Bill.
Clause 61EC – Australian sporting and cultural events of
international significance—acts of publication permitted
Clause
61EC permits the publication of interactive gambling service advertisements in
association with specified sporting or cultural events, subject to conditions.
Clause 61EC is modelled on section 18 of the Tobacco Act, which permits
publication of tobacco advertising in similar circumstances. The advertising
prohibition in new Part 7A of the Bill is modelled substantially on the Tobacco
Act prohibition, and the intention is to provide similar exemptions for sporting
and cultural events as are available in the Tobacco Act.
Subclause
61EC(1) provides that a person may publish an interactive gambling service
advertisements if:
• the advertisement is published in connection
with a sporting or cultural event held or to be held in Australia;
and
• the event is specified in a notice in force under subclause (2);
and
• the publication of the advertisement complies with any conditions
specified in the notice in accordance with subclause (3).
Subclause
61EC(2) provides that for the purposes of subclause (1) the Minister may by
notice published in the Gazette specify a sporting or cultural event to
be held in Australia only if:
• the Minister is satisfied the event
is to be completed before 1 October 2003; and
• if the event is to be
held on or after 1 October 2001, a similar event held before that date was
specified in a notice under this subclause and no application to have another
similar event specified in a notice under this subclause has been rejected since
the earlier event; and
• the Minister is satisfied, having regard to
the guidelines in force under subclause (5) that the event is of international
significance and failure to specify the event would be likely to result in the
event not being held in Australia.
Clause 61FB, set out below, provides
for the making of applications to have events specified in notices under
subclause (2).
Subclause (3) provides that in a notice under subclause
(2) specifying an event, the Minister may impose conditions on the interactive
gambling service advertising permitted at a specified sporting or cultural
event. The Minister is to have regard to any guidelines in force under
subclause (5) when imposing conditions relating to the content, number and
method of publication of the advertisements that may be published under this
provision.
Subclause (4) provides that a notice under subclause (2) comes
into force on the day it is published in the Gazette or on a later day
specified in the notice. A notice stops being in force (unless it is revoked
earlier) at the end of 3 years after it came into force, or if an earlier day is
specified in the notice, on that earlier day.
Subclause (5) provides that
the Minister may determine guidelines for the purposes of subclauses (2) and
(3). These guidelines must be made in writing.
Subclause (6) provides
that the guidelines are a disallowable instrument for the purposes of section
46A of the Acts Interpretation Act 1901. Accordingly, the guidelines
will be required to be notified in the Gazette, tabled in the Parliament
and will be subject to Parliamentary disallowance.
Subclause (7) limits
the application of subclause (1) to Part 7A only.
Subclause 61ED(1) permits advertisements for gambling services where the
advertisement was published accidentally, or where the advertisement was an
incidental accompaniment to another matter. For the advertisement to be
permitted, the publisher must not receive any benefit, either financial or
other, in addition to the benefit received for the publication of the other
matter.
This clause permits publishers to include incidental material in
their publications which is technically interactive gambling advertising,
provided they receive no benefit for including such material. For example,
reporting on a specified sporting or cultural event sponsored by an interactive
gambling service provider would not breach Part 7A unless the publisher received
some benefit for the interactive gambling advertising.
Subclause (2)
provides that subclause (1) only applies to Part 7A of the Bill.
Subclause 61EE(1) permits the publication of an interactive gambling
service by a person if that person:
• is not publishing the
advertisement in the course of providing interactive gambling
services;
• is publishing the advertisement on his or her own
initiative; and
• is not receiving any direct or indirect benefit,
whether financial or not, for the publication.
This clause is intended to
make it clear that a person is not covered by the prohibition on advertising
interactive gambling services where that person is not deriving any kind of
benefit from the advertising. Examples of interactive gambling advertising
which are permitted under this provision include:
• wearing items
of clothing with the names of interactive gambling service providers on those
items;
• listing interactive gambling service providers on Internet
search engines; and
• providing links on personal homepages to
interactive gambling Internet sites.
The intention of this clause is to
permit such activities as long as the publication is not in the course of the
provision of interactive gambling services, the person publishes the
advertisement at his or her own initiative, and no benefits are received by the
person for the publication of the advertisement.
Subclause (2) provides
that subclause (1) only applies for the purposes of Part 7A.
Subclause 61EF(1) permits the publication of advertisements for
interactive gambling services in an aircraft during a flight of the aircraft,
provided the flight does not commence and terminate within Australia.
This permitted activity is discussed in more detail above in relation to
clause 61DC, which permits the broadcasting or datacasting of advertisements
during aircraft flights.
Clause 61EG – Defence—advertising
under existing contracts or arrangements
Subclause 61EG(1) provides
for a temporary defence from the publishing prohibition for persons publishing
interactive gambling service advertisements arising from a sponsorship contract
or other legally enforceable arrangement already entered into before the
commencement of the Bill. The advertisement may not be published (including
displayed) after 30 June 2003.
In order to qualify for this
defence, each party to the contract or arrangement must have notified the
Minister, before the advertisement was published, of the specifics of the
advertisements which are to be published and the date of the contract or
arrangement out of which the advertisement arises. For example, the parties
should notify the Minister of the location, size and content of the
advertisements.
The contract or arrangement may be altered without
affecting the defence provided that the advertising arose from legally
enforceable obligations under the original contract or arrangement.
Furthermore, the advertising may be continued past the original termination date
of the contract or arrangement.
For the defence in clause 61EG, the
defendant bears an evidential burden in relation to the matters set out in
subclause (1).
An evidential burden requires the defendant to adduce
evidence that suggests a real possibility that the matter exists or does not
exist (subsection 13.3 of the Criminal Code). This means that the
defendant must adduce or point to evidence that establishes that the
requirements in paragraphs 61EG(1)(a) to (d) were all met in relation to the
publication of the relevant interactive gambling service advertisement.
If
the defendant can do this then the prosecution would then need to disprove that
those requirements were met by the defendant (subsection 13.1(2) of the Code).
Placing an evidential burden on the defendant is consistent with the
Criminal Code (see subsection 13.3 of the Code).
Subclause 61EG(2) provides that, should this defence apply to advertising
published as a result of a particular sponsorship contract or arrangement, then
the defence would also apply to other persons involved in the publishing of the
interactive gambling advertising.
Clause 61EH –
Defence—display of signs before 1 July 2003
Subclause 61EH(1)
provides a temporary defence from the publishing prohibition for persons
publishing an interactive gambling advertisement on a billboard, illuminated
sign or other outdoor sign. The advertisement may not be published (including
displayed) after 30 June 2003 or an earlier date if specified in any regulation
made pursuant to this provision and must arise from a contract or arrangement
entered into before the commencement of this Bill.
For the defence in
clause 61EH, the defendant bears an evidential burden in relation to the matters
set out in subclause (1). The effect of an evidential burden is explained above
in relation to the defence in clause 61EG.
Subclause (2) provides that
regulations are to be made which specify the permitted circumstances for the
display of signs, the size and composition of the signs, and the final date that
the signs may be used to publish interactive gambling
advertisements.
Subclause (3) ensures that this defence applies also to
persons who publish an interactive gambling service advertisement using an
electronic sign. This subclause defines the terms ‘interactive gambling
service advertising sign’ and ‘sign’ which fall within this
provision.
Clause 61FA – Failure to broadcast, datacast or publish
advertisement not actionable if this Part would be
contravened
Subclause 61FA(1) provides that if a person refuses or
fails to broadcast, datacast or publish an interactive gambling advertisement in
compliance with the prohibition contained in Part 7A of this Bill, no legal
action can be taken against that person for not engaging in that prohibited
conduct.
Subclause 61FB (1) provides that a person may apply to the Minister for a
specification under subclause 61EC(2) in relation to an event of
international significance.
Subclause (2) provides that applications
under this provision must be in writing and must set out the grounds on which
the applicant thinks the Minister should grant it.
Subclause (3) provides
that the Minister may ask the applicant to provide further information to enable
the Minister to decide on an application.
Subclause (4) provides that the
Minister must make a decision regarding an application within 60 days, subject
to subclauses (5) to (7).
Subclause (5) provides that the Minister may
extend the period for deciding an application by up to 60 days if the Minister
thinks that it will take longer to decide an application.
Subclause (6)
requires the giving of notice in writing to the applicant where the Minister has
decided to extend the period for deciding an application.
Subclause (7)
requires the Minister to decide the application within any extended
period.
Subclause (8) provides that if the Minister has not reached a
decision on the application before the end of the day by which the Minister is
obliged to decide it, then it is to be taken that the Minister has refused the
application under clause 61EC.
Subclause (9) makes it clause that the
Minister is able to make decisions in respect of matters under subclause 61EC
without an application being made pursuant to this provision.
Clause
61FC – Review of decisions
Subclause 61FC(1) provides that
decisions concerning events of international significance (subclauses 61EC(2)
and 61EC(3)) are to be reviewable by the Tribunal.
Subclause (2) defines
the term “Tribunal” as meaning:
• before the
commencement of Parts 4 to 10 of the Administrative Review Tribunal Act
2001—the Administrative Appeals Tribunal; and
• after the
commencement of Parts 4 to 10 of the Administrative Review Tribunal Act
2001—the Administrative Review Tribunal.
Clause 61FD –
Additional conditions for licences under the Broadcasting Services Act
1992
Clause 61FD sets out further conditions which apply to
licences granted under the provisions of the Broadcasting Services Act 1992
(BSA). Subclause (1) provides that all commercial television broadcasting
licences are subject to the condition that the licensee does not broadcast an
interactive gambling service advertisement in breach of Part 7A of the
Bill.
Subclause (2) provides that all commercial radio broadcasting
licences are subject to the condition that the licensee does not broadcast an
interactive gambling service advertisement in breach of Part 7A of the
Bill.
Subclause (3) provides that all community broadcasting licences are
subject to the condition that the licensee does not broadcast an interactive
gambling service advertisement in breach of Part 7A of the
Bill.
Subclause (4) provides that all subscription television
broadcasting licences are subject to the condition that the licensee does not
broadcast an interactive gambling service advertisement in breach of Part 7A of
the Bill.
Subclause (5) provides that all persons providing broadcasting
services under a class licence must not broadcast an interactive gambling
service advertisement in breach of Part 7A of the Bill.
Subclause (6)
provides that all datacasting licences are subject to the condition that the
licensee does not broadcast an interactive gambling service advertisement in
breach of Part 7A of the Bill.
Subclause (7) defines the terms
“class licence”, “commercial radio broadcasting
licence”, “commercial television broadcasting licence”,
“community broadcasting licence” and “subscription television
broadcasting licence”. All terms in subclause (7) have the same meaning
as in the BSA.
The licence conditions imposed under this clause are
additional conditions for those licences under the BSA and are enforceable under
provisions of the BSA that deal generally with breaches of licence conditions.
Where a licensee breaches the condition that interactive gambling
service advertisements are not to be broadcast, the Australian Broadcasting
Authority (ABA) may take action against the licensee under Division 3 of Part 10
of the BSA.
Broadcasting an interactive gambling service advertisement
in contravention of a commercial television broadcasting licence, a commercial
radio licence, a community broadcasting licence, or a subscription television
broadcasting licence may be an offence under sections 139 or 140 of the BSA.
Further, the ABA may issue a notice to the licensee to cease broadcasting in
contravention of the licence under section 141, and a breach of a notice issued
by the ABA will be an offence under section 142. The ABA may suspend or cancel
a licence under section 143 for breach of a licence condition or breach of a
notice issued by the ABA. Thus, the ABA may take action under these provisions
of the BSA where a licensee breaches a licence condition created under
subclauses 61FD(1), (2), (3) or (4) of the Bill.
Under s144 of the BSA,
the ABA may seek a Federal Court order against a class licensee to cease
broadcasting where the class licensee breaches a condition attached to the class
licence. Thus, where a class licensee broadcasts an interactive gambling
service advertisement in contravention of subclause 61FD(5) of the Bill, the ABA
may seek a Federal Court order under section 144 of the BSA to prevent the
continued broadcasting of that advertisement by the class
licensee.
Breaches of datacasting licence conditions are dealt with under
Part 8 of Division 1 of Schedule 6 to the BSA. A breach of a datacasting
licence condition may result in an offence under clause 52 of Schedule 6 to the
BSA. Under subclause 53(1) of the BSA the ABA may direct a licensee not to
breach a licence condition, and a failure to comply with a notice issued by the
ABA may be an offence under subclause 53(4). The ABA may also suspend or cancel
a datacasting licence under clause 54 of the BSA if the licensee fails to comply
with a direction of the ABA or breaches a licence condition. In addition,
clause 55 grants the ABA the power to apply to the Federal Court for an
injunction to prevent a breach of a licence condition. These provisions provide
the mechanisms for enforcing subclause 61FD(6) of the Bill and provide remedies
to prevent datacasters from datacasting interactive gambling services
advertisements.
Clause 61FE – Reports to
Parliament
Subclause 61FE(1) provides that as soon as practicable
after each 31 December, the Minister must cause a report to be prepared
on:
• the number and nature of any contraventions of Part 7A of the
Bill occurring in the preceding 12 months; and
• any action taken by
the Minister or a Commonwealth agency in response to each
contravention.
Subclause (2) provides that the person who prepares the
report must give a copy to the Minister.
Subclause (3) requires the
Minister to lay copies of the report before each House of Parliament within 15
sitting days of that House after receiving it.
The reporting requirement
will ensure that the operation of the prohibition on interactive gambling
service advertisements is monitored for its efficacy in limiting the take-up by
Australians of new and potentially addictive forms of interactive gambling
services.
AMENDMENT (33)
Amendment (33) inserts a new clause 67A into Part 8 of the Bill. New
clause 67A requires the Minister to conduct a review before 1 July 2003 of the
operation of the exemptions of the following services from the offence provision
in clause 15 and the complaints system in Part 3 of the Bill:
• a
service with a designated broadcasting link; and
• a service with a
designated datacasting link.
These services are described in detail above
in relation to Amendment (26). The intention of the review is to address the
possible expansion over the next few years of interactive TV games and
promotions. Such an expansion may lead to adverse social consequences even
though such services may not be ‘gambling’ in the usually understood
sense.