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Interactive Gambling Bill 2001

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2285

1998-1999-2000-2001

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

 

 

Interactive Gambling Bill 2001

 

 

(Amendments to be moved by Senator Brown (AG) in committee of the whole)

 

(1)     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.

[Clause 2—offence of providing an Australian-based interactive gambling service to customers in designated countries]

(2)     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

[Clause 3—offence of providing an Australian-based interactive gambling service to customers in designated countries]

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

designated country has the meaning given by section 9A.

[Clause 4—offence of providing an Australian-based interactive gambling service to customers in designated countries]

(4)     Clause 4, page 4 (before line 26), before the definition of designated Internet gambling matter , insert:

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

[Clause 4—offence of providing an Australian-based interactive gambling service to customers in designated countries]

(5)     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 .

[Clause 9A—offence of providing an Australian-based interactive gambling service to customers in designated countries]

(6)     Page 9 (before line 27), before clause 10, 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.

[Clause 9B—offence of providing an Australian-based interactive gambling service to customers in designated countries]

(7)     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 we 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 acce4ssed, or available for access, by an end-user in the capacity of customer of the service.

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