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Interactive Gambling Bill 2001

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1998-1999-2000-2001

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

THE SENATE

 

 

Interactive Gambling Bill 2001

 

 

Schedule of the amendments made by the Senate

 

 

 

 

 

(1)     Govt (1) [Sheet ER279]

          Clause 2, page 2 (line 1), omit “Part 2 commences”, substitute “Parts 2 and 7A commence”.

(2)     AG (1) [Sheet 2285]

          Clause 2, page 2 (after line 2), after subclause (2), insert:

          (2A)  Part 2A commences on the 28th day after the day on which this Act receives the Royal Assent.

(3)     Govt (2) [Sheet ER279]

          Clause 3, page 2 (line 18), omit “Australian-based”.

(4)     AG (2) [Sheet 2285]

          Clause 3, page 2 (after line 20), after paragraph (a), insert:

             (aa)     prohibiting Australian-based interactive gambling services from being provided to customers in designated countries; and

(5)     Govt (3) [Sheet ER279]

          Clause 3, page 3 (after line 17), at the end of the clause, add:

•      This Act prohibits the advertising of interactive gambling services.



(6)     Govt (4) [Sheet ER279]

          Clause 4, page 3 (lines 25 to 27), omit the definition of Australian-based interactive gambling service .

(7)     Govt (5) [Sheet ER279]

          Clause 4, page 4 (line 4), omit the definition of Australian-provider link .

(8)     Govt (6) [Sheet ER279]

          Clause 4, page 4 (after line 25), after the definition of datacasting service , insert:

designated broadcasting link has the meaning given by section 8C.

(9)     AG (3) [Sheet 2285]

          Clause 4, page 4 (after line 25), after the definition of datacasting service , insert:

designated country has the meaning given by section 9A.

(10)   AG (4) [Sheet 2285]

          Clause 4, page 4 (after line 25), after the definition of datacasting service , insert:

designated country-customer link has the meaning given by section 9B.

(11)   Govt (7) [Sheet ER279]

          Clause 4, page 4 (after line 25), after the definition of datacasting service , insert:

designated datacasting link has the meaning given by section 8C.

(12)   Govt (8) [Sheet ER279]

          Clause 4, page 5 (after line 8), after the definition of engage in conduct , insert:

excluded gaming service has the meaning given by section 8B.

(13)   Govt (9) [Sheet ER279]

          Clause 4, page 5 (after line 8), after the definition of engage in conduct , insert:

excluded lottery service has the meaning given by section 8D.



(14)   Govt (10) [Sheet ER279]

          Clause 4, page 5 (after line 8), after the definition of engage in conduct , insert:

excluded wagering service has the meaning given by section 8A.

(15)   Govt (11) [Sheet ER279]

          Clause 4, page 5 (after line 32), after the definition of industry standard , insert:

interactive gambling service has the meaning given by section 5.

Note:          This definition relates to the offences created by section 15 and Part 7A.

(16)   Govt (12) [Sheet ER279]

          Heading to clause 5, page 7 (line 15), omit “ Australian-based interactive ”, substitute “ Interactive ”.

(17)   Govt (13) [Sheet ER279]

          Clause 5, page 7 (line 16), omit “ Australian-based ”.

(18)   Govt (14) [Sheet ER279]

          Clause 5, page 7 (line 26), omit “service; and”, substitute “service.”.

(19)   Govt (15) [Sheet ER279]

          Clause 5, page 7 (line 27), omit paragraph (c).

(20)   Govt (16) [Sheet ER279]

          Clause 5, page 7 (line 28), omit “ offence created by section 15 ”, substitute “ offences created by section 15 and Part 7A ”.

(21)   Govt (17) [Sheet ER279]

          Clause 5, page 8 (line 3), omit “ Australian-based ”.

(22)   Govt (18) [Sheet ER279]

          Clause 5, page 8 (after line 4), after paragraph (a), insert:

                    (aa)  an excluded wagering service (see section 8A);

                   (ab)  an excluded gaming service (see section 8B);

                    (ac)  a service that has a designated broadcasting link (see section 8C);



                   (ad)  a service that has a designated datacasting link (see section 8C);

                    (ae)  an excluded lottery service (see section 8D);

(23)   Govt (19) [Sheet ER279]

          Clause 6, page 8 (line 16), omit paragraph (c), substitute:

                     (c)  an individual who is physically present in Australia is capable of becoming a customer of the service.

(24)   Govt (20) [Sheet ER279]

          Clause 6, page 8 (after line 17), after subclause (1), insert:

          (1A)  For the purposes of paragraph (1)(c), in determining whether an individual who is physically present in Australia is capable of becoming a customer of a service, it is to be assumed that the individual will not falsify or conceal the individual’s identity or location.

(25)   Govt (21) [Sheet ER279]

          Clause 6, page 8 (line 20), omit “neither”, substitute “none”.

(26)   Govt (22) [Sheet ER279]

          Clause 6, page 8 (after line 21), before paragraph (a), insert:

                    (aa)  an excluded wagering service (see section 8A);

                   (ab)  an excluded gaming service (see section 8B);

                    (ac)  a service that has a designated broadcasting link (see section 8C);

                   (ad)  a service that has a designated datacasting link (see section 8C);

                    (ae)  an excluded lottery service (see section 8D);

(27)   Govt (23) [Sheet ER279]

          Clause 7, page 8 (line 26) to page 9 (line 10), omit the clause.

(28)   Govt (24) [Sheet ER279] ( As amended by Dem (1) [Sheet XX222] )

          Page 9 (after line 14), after clause 8, insert:

8A   Excluded wagering service

             (1)  For the purposes of this Act, an excluded wagering service is:

                     (a)  a service to the extent to which it relates to betting on, or on a series of, any or all of the following:

                              (i)  a horse race;

                             (ii)  a harness race;



                            (iii)  a greyhound race;

                            (iv)  a sporting event;

                     (b)  a service to the extent to which it relates to betting on:

                              (i)  an event; or

                             (ii)  a series of events; or

                            (iii)  a contingency;

                            that is not covered by paragraph (a).

          (1A)  Subsection (1) does not apply to a service unless such other conditions (if any) as are specified in the regulations have been satisfied.

             (2)  Paragraphs (1)(a) and (b) do not apply to a service to the extent to which:

                     (a)  the service 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; or

                     (b)  the service relates to betting on a contingency that may or may not happen in the course of a sporting event, where the bets are placed, made, received or accepted after the beginning of the event.

             (3)  Paragraph (1)(b) does not apply to a service to the extent to which the service is:

                     (a)  a service for the conduct of a scratch lottery or other instant lottery; or

                     (b)  a service for the supply of tickets in a scratch lottery or other instant lottery; or

                     (c)  a service relating to betting on the outcome of a scratch lottery or other instant lottery; or

                     (d)  a service for the conduct of a game covered by paragraph (e) of the definition of gambling service in section 4; or

                     (e)  a service relating to betting on the outcome of a game of chance or of mixed chance and skill.

(29)   Govt (25) [Sheet ER279] ( As amended by Dem (2) [Sheet XX222] )

          Page 9 (after line 14), after clause 8, insert:

8B   Excluded gaming service

             (1)  For the purposes of this Act, 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.

          (1A)  Subsection (1) does not apply to a service unless such other conditions (if any) as are specified in the regulations have been satisfied.

             (2)  In this section:

public place means a place, or a 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, casino, bar or club).

section of the public includes the members of a particular club, society or organisation, but does not include a group consisting only of persons with a common workplace or a common employer.



(30)   Govt (26) [Sheet ER279]

          Page 9 (after line 14), after clause 8, insert:

8C   Designated broadcasting link and designated datacasting link

Designated broadcasting link

             (1)  For the purposes of this Act, a gambling service has a designated broadcasting link if:

                     (a)  either:

                              (i)  the service is expressly and exclusively associated with a particular program, or a particular series of programs, broadcast on a broadcasting service; or

                             (ii)  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; and

                     (b)  such other conditions (if any) as are specified in the regulations have been satisfied.

Designated datacasting link

             (2)  For the purposes of this Act, a gambling service has a designated datacasting link if:

                     (a)  either:

                              (i)  the service is expressly and exclusively associated with particular content, or a particular series of content, transmitted on a datacasting service; or

                             (ii)  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; and

                     (b)  such other conditions (if any) as are specified in the regulations have been satisfied.

             (3)  In this section:

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 , but does not include advertising or sponsorship material.

(31)   Govt (27) [Sheet ER279] ( As amended by Dem (3) [Sheet XX222] )

          Page 9 (after line 14), after clause 8, insert:

8D   Excluded lottery service

             (1)  For the purposes of this Act, an excluded lottery service is:

                     (a)  a service for the conduct of a lottery; or

                     (b)  a service for the supply of lottery tickets.

          (1A)  Subsection (1) does not apply to a service unless such other conditions (if any) as are specified in the regulations have been satisfied.

          (1B)  Without limiting subsection (1A), a condition specified in regulations made for the purposes of that subsection may provide that the lottery must not be:

                     (a)  a highly repetitive or frequently drawn form of a keno-type lottery; or

                     (b)  a similar lottery.

             (2)  Subsection (1) does not apply to an electronic form of:

                     (a)  scratch lottery; or

                     (b)  other instant lottery.

(32)   AG (5) [Sheet 2285]

          Page 9 (after line 26), after clause 9, insert:

9A  Designated country

             (1)  The Minister may, by writing, declare that a specified foreign country is a designated country for the purposes of this Act.

             (2)  A declaration under subsection (1) has effect accordingly.

             (3)  The Minister must not declare a foreign country under subsection (1) unless:

                     (a)  the government of the country has requested the Minister to make the declaration; and

                     (b)  there is in force in that country legislation that corresponds to section 15.

             (4)  At least 90 days before making a declaration under subsection (1), the Minister must cause to be published a notice:

                     (a)  in the Gazette ; and

                     (b)  in a newspaper circulating in each State, in the Northern Territory and in the Australian Capital Territory;

setting out the Minister’s intention to make the declaration.

             (5)  In deciding whether to declare a foreign country under subsection (1), the Minister must have due regard to:

                     (a)  any complaints; and

                     (b)  any supporting statements;

made by the government of that country.

             (6)  An instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .



(33)   AG (6) [Sheet 2285]

          Page 9 (after line 26), after clause 9, insert:

9B  Designated country-customer link

                   For the purposes of this Act, a gambling service has a designated country-customer link if, and only if, any or all of the customers of the service are physically present in a designated country.

(34)   Govt (28) [Sheet ER279]

          Heading to Part 2, page 11 (line 2), omit “ Australian-based ”.

(35)   Govt (29) [Sheet ER279]

          Heading to clause 15, page 11 (line 6), omit “ Australian-based ”.

(36)   Govt (30) [Sheet ER279]

          Clause 15, page 11 (line 9), omit “Australian-based”.

(37)   Govt (31) [Sheet ER279]

          Clause 15, page 11 (after line 22), at the end of the clause, add:

             (4)  For the purposes of subsection (3), in determining whether the 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 who are physically present in Australia;

                     (b)  whether customers were required to enter into contracts that were subject to an express condition that the customer was not to use the service if the customer was physically present in Australia;

                     (c)  whether the person required customers to provide personal details and, if so, whether those details suggested that the customer was not physically present in Australia;

                     (d)  whether the person has network data that indicates that customers were physically present outside Australia:

                              (i)  when the relevant customer account was opened; and

                             (ii)  throughout the period when the service was provided to the customer;

                     (e)  any other relevant matters.

             (5)  Section 15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to an offence against subsection (1).



(38)   AG (7) [Sheet 2285]

          Page 11 (after line 22), after Part 2, insert:

Part 2A—Offence of providing an Australian-based interactive gambling service to customers in designated countries

15A  Offence of providing an Australian-based interactive gambling service to customers in designated countries

             (1)  A person is guilty of an offence if:

                     (a)  the person intentionally provides an Australian-based interactive gambling service; and

                     (b)  the service has a designated country-customer link (see section 9B).

Penalty:  2,000 penalty units.

             (2)  A person who contravenes subsection (1) is guilty of a separate offence in respect of each day (including a day of conviction for the offence or any later day) during which the contravention continues.

             (3)  Subsection (1) does not apply if the person:

                     (a)  did not know; and

                     (b)  could not, with reasonable diligence, have ascertained;

that the service had a designated country-customer link.

Note:          The defendant bears an evidential burden in relation to the matters in subsection (3) (see subsection 13.3(3) of the Criminal Code ).

             (4)  For the purposes of subsection (3), in determining whether the person could, with reasonable diligence, have ascertained that the service had a designated country-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 who are physically present in a designated country;

                     (b)  whether customers were required to enter into contracts that were subject to an express condition that the customer was not to use the service if the customer was physically present in a designated country;

                     (c)  whether the person required customers to provide personal details and, if so, whether those details suggested that the customer was not physically present in a designated country;

                     (d)  whether the person has network data that indicates that customers were physically present outside a designated country:

                              (i)  when the relevant customer account was opened; and

                             (ii)  throughout the period when the service was provided to the customer;

                     (e)  any other relevant matters.

             (5)  Section 15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to an offence against subsection (1).

             (6)  For the purposes of this section, an Australian-based interactive gambling service is an interactive gambling service, where the service has an Australian-provider link.

             (7)  For the purposes of this section, an interactive gambling service has an Australian-provider link if, and only if:

                     (a)  the service is provided in the course of carrying on a business in Australia; or

                     (b)  the central management and control of the service is in Australia; or

                     (c)  the service is provided through an agent in Australia; or

                     (d)  the service is provided to customers using an Internet carriage service, and any or all of the relevant Internet content is hosted in Australia.

             (8)  For the purposes of this section, the relevant Internet content , in relation to an interactive gambling service, is Internet content that is accessed, or available for access, by an end-user in the capacity of customer of the service.

(39)   Govt (32) [Sheet ER279]

          Page 45 (after line 6), after Part 7, insert:

Part  7A Prohibition of advertising of interactive gambling services

Division 1 Interpretation: definitions

61AA   Defin itions

                   In this Part, unless the contrary intention appears:

broadcast means transmit by means of a broadcasting service.

broadcasting service means 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)  a service that delivers programs using the Internet, where the delivery does not use the broadcasting services bands.

broadcasting services bands has the same meaning as in the Broadcasting Services Act 1992 .

datacast means transmit by means of a datacasting service.

display includes continue to display.

exempt library means:

                     (a)  a public library; or

                     (b)  a library of a tertiary educational institution; or

                     (c)  a library of an authority of the Commonwealth or of a State or Territory.

government or political matters means government or political matters relating to any level of government in Australia, and includes any of the following matters:

                     (a)  participation in, association with and communications in relation to any election or appointment to public office;

                     (b)  political views or public conduct relating to activities that have become the subject of political debate;

                     (c)  the performance, conduct, capacity or fitness for office of a person elected or appointed to, or seeking election or appointment to, any public office;

                     (d)  the actions or policies, or proposed actions or policies, of any government in Australia or any Australian political party.

interactive gambling service advertisement has the meaning given by Division 2.

interactive gambling service provider means a person who provides an interactive gambling service.

periodical means an issue (however described) of a newspaper, magazine, journal, newsletter, or other similar publication, issues of which are published at regular or irregular intervals.

program has the same meaning as in the Broadcasting Services Act 1992 .

public place means a place, or a 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).

publish :

                     (a)  in relation to an interactive gambling service advertisement, has the meaning given by Division 3; and

                     (b)  in relation to something other than an interactive gambling service advertisement, has a meaning equally as broad as it has in relation to an interactive gambling service advertisement.

section of the public includes:

                     (a)  the members of a particular club, society or organisation; and

                     (b)  a group consisting only of persons with a common workplace or a common employer.

workplace means premises in which employees or contractors work, other than any part of such premises that is primarily used as a private dwelling.

Division 2 Interpretation: interactive gambling service advertisement

61BA   Basic meaning of interactive gambling service advertisement

             (1)    For the purposes of this Part, an interactive gambling service advertisement is any writing, still or moving picture, sign, symbol or other visual image, or any audible message, or any combination of 2 or more of those things, that gives publicity to, or otherwise promotes or is intended to promote:

                     (a)  an interactive gambling service; or

                     (b)  interactive gambling services in general; or

                     (c)  the whole or part of a trade mark in respect of an interactive gambling service; or

                     (d)  a domain name or URL that relates to an interactive gambling service; or

                     (e)  any words that are closely associated with an interactive gambling service (whether also closely associated with other kinds of services or products).

             (2)  This section has effect subject to sections 61BB, 61BC, 61BD, 61BE, 61BF and 61BG.

61BB   Exception—political communication

             (1)  To avoid doubt, if:

                     (a)  something (the advertisement ) does not promote, and is not intended to promote, any particular interactive gambling service or services; and

                     (b)  the advertisement relates solely to government or political matters;

the advertisement is not an interactive gambling service advertisement for the purposes of this Part.

             (2)  Without limiting paragraph (1)(a), the use in an advertisement of the whole name of an interactive gambling service provider does not, of itself, constitute promotion of an interactive gambling service or interactive gambling services for the purposes of paragraph (1)(a).

             (3)  Subsection (2) does not apply in relation to the use of a name referred to in that subsection in a way prohibited by regulations made for the purposes of this subsection.

             (4)  Section 61BA does not apply to the extent (if any) that it would infringe any doctrine of implied freedom of political communication.

61BC   Exception—Internet sites etc. and business documents

                   Words, signs or symbols that appear:

                     (a)  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)  as part of the standard wording of an invoice, statement, order form, letterhead, business card, cheque, manual, or other document ordinarily used in the normal course of the business of an interactive gambling service provider (whether or not the document is in electronic form);

do not, when so appearing, constitute an interactive gambling service advertisement (but this does not prevent a still or moving screen shot of an Internet site or equivalent point of provision referred to in paragraph (a), or a still or moving picture or other visual image of a document referred to in paragraph (b), from being an interactive gambling service advertisement).

61BD   Exception—premises of providers

                   Words, signs or symbols that appear in or on land or buildings occupied by an interactive gambling service provider do not, when so appearing, constitute an interactive gambling service advertisement (but this does not prevent a still or moving picture, or other visual image, of words, signs or symbols that so appear from being an interactive gambling service advertisement).

61BE   Exceptions—management advertisements etc.

                   To avoid doubt, none of the following constitutes an interactive gambling service advertisement:

                     (a)  the doing of anything that is, or apart from this Part would be, required to be done by any other law of the Commonwealth or by any law of a State or Territory;

                     (b)  an advertisement (for example, an advertisement for staff or calling for tenders), relating to the internal management of the business of an interactive gambling service provider, that does not promote an interactive gambling service;

                     (c)  the taking of any action to prevent persons becoming victims of fraud or any other dishonest or unethical conduct.

61BF  Exception—products or services having the same name as an interactive gambling service

             (1)  If:

                     (a)  apart from this section, something (the advertisement ) that relates to a product, or a service, that is not an interactive gambling service would, technically, be an interactive gambling service advertisement because the name, or part of the name, of the product or service is the same as, or substantially similar to, the name, or part of the name, of:

                              (i)  an interactive gambling service; or

                             (ii)  an interactive gambling service provider; and

                     (b)  the manufacturer, distributor or retailer of the product, or the provider of the service, is not associated in any way with the interactive gambling service provider concerned;

then, despite section 61BA, the advertisement is not an interactive gambling service advertisement for the purposes of this Part.

Related bodies corporate taken to be associated with each other

             (2)  Without limiting the circumstances in which 2 persons would, apart from this subsection, be taken to be associated with each other for the purposes of subsection (1), 2 bodies corporate that are related to each other are taken to be associated with each other for the purposes of that subsection.

             (3)  For the purposes of subsection (2), the question whether 2 bodies corporate are related to each other is to be determined in the same way as the question would be determined under the Corporations Law.

61BG   Exception—anti-gambling advertisements

                   If:

                     (a)  apart from this section, something (the advertisement ) would, technically, be an interactive gambling service advertisement; and

                     (b)  it is clear from the advertisement that its sole or principal purpose is to discourage the use of gambling services or particular kinds of gambling services;

then, despite section 61BA, the advertisement is not an interactive gambling service advertisement for the purposes of this Part.

61BH   Definition

                   In this Division:

words includes abbreviations, initials and numbers.

Division 3 Interpretation: publication of interactive gambling service advertisement

61CA   Basic meaning of publish an interactive gambling service advertisement

             (1)  For the purposes of this Part, a person publishes an interactive gambling service advertisement if the person does any of the following things:

                     (a)  the person includes the advertisement, or something that contains the advertisement, on an Internet site;

                     (b)  the person includes the advertisement in a document (including, for example, a newspaper, magazine, program, leaflet or ticket) that is available, or distributed, to the public or a section of the public;

                     (c)  the person 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 or a section of the public;

                     (d)  the person:

                              (i)  sells, hires or supplies the advertisement, or something containing the advertisement, to the public or a section of the public; or

                             (ii)  offers the advertisement, or something containing the advertisement, for sale or supply to, or hire by, the public or a section of the public;

                     (e)  the person displays, screens or plays the advertisement, or something that contains the advertisement, so that it can be seen or heard in or from:

                              (i)  a public place; or

                             (ii)  public transport; or

                            (iii)  a workplace;

                      (f)  the person otherwise:

                              (i)  brings the advertisement, or something that contains the advertisement, to the notice of; or

                             (ii)  disseminates the advertisement, or something that contains the advertisement, to;

                            the public, or a section of the public, by any means (including, for example, by means of a film, video, computer disk or electronic medium).

             (2)  This section has effect subject to sections 61CB, 61CC, 61CD, 61CE and 61CF.

61CB   Publish does not include broadcast or datacast

                   For the purposes of this Part, the broadcasting or datacasting of an interactive gambling service advertisement by a person does not amount to the publication of the advertisement by the person.

61CC   Exception—trade communications

                   For the purposes of this Part, the communication of information that is or includes an interactive gambling service advertisement to a group of people all of whom are involved in the provision of interactive gambling services, does not, of itself, amount to a publication of the interactive gambling service advertisement.

61CD   Exception—advertisements in telephone directories

             (1)  For the purposes of this Part, the publication of the name of an interactive gambling service provider in a telephone directory does not, of itself, amount to the publication of an interactive gambling service advertisement.

             (2)  Subsection (1) does not apply if:

                     (a)  the publication is on the Internet; and

                     (b)  the entry for the provider contains a link to an Internet site for the provider that relates to an interactive gambling service.

61CE   Exception—ordinary activities of exempt libraries

                   Nothing that a person does for the purposes of the ordinary activities of an exempt library amounts, for the purposes of this Part, to a publication of an interactive gambling service advertisement.

61CF   Exception—acknowledgments of assistance or support

                   For the purposes of this Part, the publication of an acknowledgment of assistance or support does not amount to the publication of an interactive gambling service advertisement if it complies with regulations made for the purposes of this section that permit the publication of such acknowledgments.

Division 4 Broadcasting or datacasting of interactive gambling service advertisements in Australia

61DA   Interactive gambling service advertisements not to be broadcast or datacast in Australia

             (1)  A person is guilty of an offence if:

                     (a)  the person broadcasts or datacasts an interactive gambling service advertisement in Australia; and

                     (b)  the broadcast or datacast is not permitted by section 61DB; and

                     (c)  the broadcast or datacast is not permitted by section 61DC.

Penalty:  120 penalty units.

             (2)  A person is guilty of an offence if:

                     (a)  the person authorises or causes an interactive gambling service advertisement to be broadcast or datacast in Australia; and

                     (b)  the broadcast or datacast is not permitted by section 61DB; and

                     (c)  the broadcast or datacast is not permitted by section 61DC.

Penalty for contravention of this subsection:        120 penalty units.

61DB   Accidental or incidental broadcast or datacast permitted

             (1)  A person may broadcast or datacast an interactive gambling service advertisement if:

                     (a)  the person broadcasts or datacasts the advertisement as an accidental or incidental accompaniment to the broadcasting or datacasting of other matter; and

                     (b)  the person does not receive any direct or indirect benefit (whether financial or not) for broadcasting or datacasting the advertisement (in addition to any direct or indirect benefit that the person receives for broadcasting or datacasting the other matter).

             (2)  Subsection (1) only has effect for the purposes of this Part.

61DC   Broadcast or datacast of advertisements during flights of aircraft

             (1)  A person may broadcast or datacast an interactive gambling service advertisement in an aircraft during a flight of the aircraft unless the flight begins at a place in Australia and is intended to end at another place in Australia.

             (2)  For the purposes of subsection (1), each sector of a flight of an aircraft is taken to be a separate flight.

             (3)  Subsection (1) only has effect for the purposes of this Part.

Division 5 Publication of interactive gambling service advertisements in Australia

61EA   Interactive gambling service advertisements not to be published in Australia

             (1)  A person is guilty of an offence if:

                     (a)  the person publishes an interactive gambling service advertisement in Australia; and

                     (b)  the publication is not permitted by section 61EB; and

                     (c)  the publication is not permitted by section 61EC; and

                     (d)  the publication is not permitted by section 61ED; and

                     (e)  the publication is not permitted by section 61EE; and

                      (f)  the publication is not permitted by section 61EF.

Penalty:  120 penalty units.

             (2)  A person is guilty of an offence if:

                     (a)  the person authorises or causes an interactive gambling service advertisement to be published in Australia; and

                     (b)  the publication is not permitted by section 61EB; and

                     (c)  the publication is not permitted by section 61EC; and

                     (d)  the publication is not permitted by section 61ED; and

                     (e)  the publication is not permitted by section 61EE; and

                      (f)  the publication is not permitted by section 61EF.

Penalty:  120 penalty units.

             (3)  For the purposes of this section, an interactive gambling service advertisement that is included on an Internet site is taken to be published in Australia if, and only if:

                     (a)  the site is accessed, or is available for access, by end-users in Australia; and

                     (b)  having regard to:

                              (i)  the content of the site; and

                             (ii)  the way the site is advertised or promoted;

                            it would be concluded that it is likely that a majority of persons who access the site are physically present in Australia.

61EB   Periodicals distributed outside Australia—acts of publication permitted

             (1)  A person may do, with a periodical that contains an interactive gambling service advertisement, something that amounts to publishing the advertisement if the periodical is not principally intended for distribution or use in Australia.

             (2)  Subsection (1) only has effect for the purposes of this Part.

61EC   Australian sporting and cultural events of international significance—acts of publication permitted

             (1)  A person may publish an interactive gambling service advertisement if:

                     (a)  the advertisement is published in connection with a sporting or cultural event held, or to be held, in Australia; and

                     (b)  the event is specified in a notice in force under subsection (2); and

                     (c)  the publication of the advertisement complies with the conditions (if any) specified in the notice in accordance with subsection (3).

             (2)  For the purposes of subsection (1), the Minister may, by notice published in the Gazette , specify a sporting or cultural event to be held in Australia if, and only if:

                     (a)  the Minister is satisfied that the event will be completed before 1 October 2003; and

                     (b)  in a case where the event is to be held on or after 1 October 2001:

                              (i)  a similar event held before that date (the earlier event ) was specified in a notice under this subsection; and

                             (ii)  no application to have another similar event specified in a notice under this subsection has been rejected since the earlier event; and

                     (c)  the Minister is satisfied, having regard to the guidelines in force under subsection (5), that:

                              (i)  the event is of international significance; and

                             (ii)  failure to specify the event would be likely to result in the event not being held in Australia.

Note:          Section 61FB provides for the making of applications to have events specified in notices under this subsection.

             (3)  In a notice under subsection (2) specifying an event, the Minister may also, having regard to the guidelines in force under subsection (5), specify conditions to be complied with in relation to the publication of interactive gambling service advertisements in connection with the event, being conditions related to:

                     (a)  the content of the advertisements that may be published; or

                     (b)  the number of advertisements, or the number of advertisements of a particular kind, that may be published, or that may be published in a particular way; or

                     (c)  the way in which advertisements may be published.

             (4)  A notice under subsection (2):

                     (a)  comes into force:

                              (i)  on the day when it is published in the Gazette ; or

                             (ii)  if a later day is specified in the notice as the day when it is to come into force—on that later day; and

                     (b)  stops being in force (unless it is revoked earlier):

                              (i)  at the end of 3 years after it came into force; or

                             (ii)  if an earlier day is specified in the notice as the day when it stops being in force—on that earlier day.

             (5)  The Minister may, by writing, determine guidelines for the purposes of subsections (2) and (3).

             (6)  An instrument under subsection (5) determining guidelines is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

             (7)  Subsection (1) only has effect for the purposes of this Part.



61ED   Accidental or incidental publication permitted

             (1)  A person may publish an interactive gambling service advertisement if:

                     (a)  the person publishes the advertisement as an accidental or incidental accompaniment to the publication of other matter; and

                     (b)  the person does not receive any direct or indirect benefit (whether financial or not) for publishing the advertisement (in addition to any direct or indirect benefit that the person receives for publishing the other matter).

             (2)  Subsection (1) only has effect for the purposes of this Part.

61EE   Publication by person not receiving any benefit permitted

             (1)  A person may publish an interactive gambling service advertisement if:

                     (a)  the publication is not in the course of the provision of interactive gambling services; and

                     (b)  the person publishes the advertisement on the person’s own initiative; and

                     (c)  the person does not receive any direct or indirect benefit (whether financial or not) for publishing the advertisement.

             (2)  Subsection (1) only has effect for the purposes of this Part.

61EF   Publication of advertisements during flights of aircraft

             (1)  A person may publish an interactive gambling service advertisement in an aircraft during a flight of the aircraft unless the flight begins at a place in Australia and is intended to end at another place in Australia.

             (2)  For the purposes of subsection (1), each sector of a flight of an aircraft is taken to be a separate flight.

             (3)  Subsection (1) only has effect for the purposes of this Part.

61EG   Defence—advertising under existing contracts or arrangements

             (1)  Subsections 61EA(1) and (2) do not apply to the publication of an interactive gambling service advertisement if:

                     (a)  the publication was under a contract or arrangement that was:

                              (i)  entered into before the commencement of section 1; and

                             (ii)  for the sponsorship of an event, activity or service; and

                     (b)  if the terms of the contract or arrangement, in so far as they relate to things other than the period to which it applies, were varied on or after the commencement of section 1 and before the publication—if the contract or arrangement had not been so varied, the publication could still be said to have been under the contract or arrangement; and

                     (c)  the advertisement was published before 1 July 2003; and

                     (d)  before the publication of the advertisement, each of the parties to the contract or arrangement notified the Minister, in writing, of:

                              (i)  the date on which the contract or arrangement was entered into; and

                             (ii)  particulars of the contract or arrangement in so far as it relates to the publication of interactive gambling service advertisements, including the circumstances of publication of the advertisements and the nature of the advertisements.

Note:          The defendant bears an evidential burden in relation to the matters in subsection (1). See subsection 13.3(3) of the Criminal Code .

             (2)  For the purposes of this section, if:

                     (a)  a party to a contract or arrangement of a kind referred to in paragraph (1)(a), for the purposes of publishing an interactive gambling service advertisement under the contract or arrangement, engaged (whether before or after the commencement of section 1) another person to do something that amounted to publishing the advertisement; and

                     (b)  the other person did that thing and, consequently, published the advertisement;

the other person is taken to have published the advertisement under the contract or arrangement.

61EH   Defence—display of signs before 1 July 2003

             (1)  Subsections 61EA(1) and (2) do not apply to the display of an interactive gambling service advertising sign if:

                     (a)  the sign was displayed under a contract or arrangement entered into before the commencement of section 1; and

                     (b)  if the terms of the contract or arrangement were varied on or after the commencement of section 1—if the contract or arrangement had not been so varied, the display of the sign could still be said to have been under the contract or arrangement; and

                     (c)  the display of the sign was permitted by regulations made for the purposes of subsection (2).

Note:          The defendant bears an evidential burden in relation to the matters in subsection (1). See subsection 13.3(3) of the Criminal Code .

             (2)  The regulations may permit the display, in specified circumstances, and before a specified date that is earlier than 1 July 2003, of interactive gambling service advertising signs of a specified size and composition.

             (3)  In this section:

interactive gambling service advertising sign means a sign that is or contains an interactive gambling service advertisement.

sign includes an electronic installation used to display advertisements.

Division 6 Miscellaneous

61FA   Failure to broadcast, datacast or publish advertisement not actionable if this Part would be contravened

                   Civil proceedings do not lie against a person for refusing or failing to broadcast, datacast or publish an interactive gambling service advertisement if the broadcast, datacast or publication is prohibited by this Part.

61FB   Applications for the purposes of section 61EC

             (1)  A person may apply to the Minister to have a particular event specified in a notice under subsection 61EC(2).

             (2)  An application must be in writing and must set out the grounds on which the applicant thinks the Minister should grant it.

             (3)  If the Minister needs further information to decide an application, the Minister may ask the applicant to provide the information.

             (4)  The Minister must decide an application within 60 days after receiving it. This subsection has effect subject to subsections (5) to (7).

             (5)  If the Minister thinks that it will take longer to decide an application, the Minister may extend, by up to 60 days, the period for deciding it.

             (6)  An extension must be made by written notice given to the applicant within 60 days after the Minister receives the application concerned.

             (7)  If the Minister makes an extension, the Minister must decide the application concerned within the extended period.

             (8)  If the Minister has not decided an application before the end of the day by which the Minister is required to decide it, the Minister is taken to have decided, under section 61EC, to refuse the application at the end of that day.

             (9)  This section does not limit the power of the Minister to make a decision under section 61EC otherwise than because of an application under this section.

61FC   Review of decisions

             (1)  An application may be made to the Tribunal for a review of a decision made under subsection 61EC(2) or 61EC(3).

             (2)  In this section:

Tribunal means:

                     (a)  before the commencement of Parts 4 to 10 of the Administrative Review Tribunal Act 2001 —the Administrative Appeals Tribunal; and

                     (b)  after the commencement of Parts 4 to 10 of the Administrative Review Tribunal Act 2001 —the Administrative Review Tribunal.

61FD   Additional conditions for licences under the Broadcasting Services Act 1992

Commercial television broadcasting licence

             (1)  Each commercial television broadcasting licence is subject to the condition that the licensee will not, in contravention of this Part, broadcast an interactive gambling service advertisement.

Commercial radio broadcasting licence

             (2)  Each commercial radio broadcasting licence is subject to the condition that the licensee will not, in contravention of this Part, broadcast an interactive gambling service advertisement.

Community broadcasting licence

             (3)  Each community broadcasting licence is subject to the condition that the licensee will not, in contravention of this Part, broadcast an interactive gambling service advertisement.

Subscription television broadcasting licence

             (4)  Each subscription television broadcasting licence is subject to the condition that the licensee will not, in contravention of this Part, broadcast an interactive gambling service advertisement.

Provision of a broadcasting service under a class licence

             (5)  The provision by a person of a broadcasting service under a class licence is subject to the condition that the licensee will not, in contravention of this Part, broadcast an interactive gambling service advertisement.

Datacasting licence

             (6)  Each datacasting licence is subject to the condition that the licensee will not, in contravention of this Part, datacast an interactive gambling service advertisement.

Definitions

             (7)  In this section:

class licence has the same meaning as in the Broadcasting Services Act 1992.

commercial radio broadcasting licence has the same meaning as in the Broadcasting Services Act 1992.

commercial television broadcasting licence has the same meaning as in the Broadcasting Services Act 1992.

community broadcasting licence has the same meaning as in the Broadcasting Services Act 1992.

subscription television broadcasting licence has same meaning as in the Broadcasting Services Act 1992.

61FE   Reports to Parliament

             (1)  As soon as practicable after each 31 December, the Minister must cause to be prepared a report on:

                     (a)  the number and nature of any contraventions of this Part occurring in the preceding 12 months; and

                     (b)  any action taken by the Minister or a Commonwealth agency in response to each contravention.

             (2)  A person who prepares a report under subsection (1) must give a copy to the Minister.

             (3)  The Minister must cause copies of the report to be laid before each House of the Parliament within 15 sitting days of that House after its receipt by the Minister.



(40)   Dem (1) [Sheet XX225]

          Clause 68, page 49 (lines 25 and 26), omit subclause (1), substitute:

             (1)  Before 1 July 2003, the Minister must cause to be conducted a review of the following matters:

                     (a)  the operation of this Act;

                     (b)  the growth of interactive gambling services;

                     (c)  the social and commercial impact of interactive gambling services;

                     (d)  the effect of the following provisions:

                              (i)  paragraphs 5(3)(aa) and 6(3)(aa) and section 8A (excluded wagering services);

                             (ii)  paragraphs 5(3)(ab) and 6(3)(ab) and section 8B (excluded gaming services);

                            (iii)  paragraphs 5(3)(ac) and 6(3)(ac) and section 8C (services that have a designated broadcasting link);

                            (iv)  paragraphs 5(3)(ad) and 6(3)(ad) and section 8C (services that have a designated datacasting link);

                             (v)  paragraphs 5(3)(ae) and 6(3)(ae) and section 8D (excluded lottery services);

                     (e)  the effectiveness of this Act in dealing with the social and commercial impact of interactive gambling services;

                      (f)  technological developments that are relevant to the regulation of interactive gambling services;

                     (g)  technological developments that may assist in dealing with problem gambling.

(41)   Dem (2) [Sheet XX225]

          Clause 68, page 50 (after line 3), at the end of the clause, add:

             (4)  For the purposes of subsection (1), in determining whether a service is an interactive gambling service, subsection 5(3) is to be disregarded.

(42)   AG (1) [Sheet DL200]

          Page 50 (after line 7), after clause 69, insert:

69A  Regulations about unenforceability of agreements relating to illegal interactive gambling services

Agreements

             (1)  The regulations may provide:

                     (a)  that an agreement has no effect to the extent to which it provides for the payment of money for the supply of an illegal interactive gambling service; and

                     (b)  that civil proceedings do not lie against a person to recover money alleged to have been won from, or paid in connection with, an illegal interactive gambling service.

Deadline for making regulations

             (2)  The Minister must take all reasonable steps to ensure that regulations are made for the purposes of this section within 6 months after the commencement of Part 2.

Illegal interactive gambling service

             (3)  For the purposes of this section, an interactive gambling service is an illegal interactive gambling service if, and only if, the provision of the service contravenes a provision of this Act that creates an offence.

Definition

             (4)  In this section:

agreement means an agreement, whether made orally or in writing.

 

 

 

 

 

 

 

HARRY EVANS

Clerk of the Senate

 

 

The Senate

28 June 2001