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Interactive Gambling Bill 2001

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.