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Interactive Gambling Bill 2001

Part 4 Complaints system: industry code and industry standard

Division 1 Simplified outline

32   Simplified outline

                   The following is a simplified outline of this Part.

•      A body or association that represents Internet service providers may develop an industry code that deals with the designated Internet gambling matters (see section 35).

•      An industry code may be registered by the ABA.

•      Compliance with an industry code is voluntary unless the ABA directs a particular Internet service provider to comply with the code.

•      The ABA has a reserve power to make an industry standard if there is no industry code or if an industry code is deficient.

•      Compliance with an industry standard is mandatory.



 

Division 2 Interpretation

33   Industry code

                   For the purposes of this Act, an industry code is a code developed under this Part (whether or not in response to a request under this Part).

34   Industry standard

                   For the purposes of this Act, an industry standard is a standard determined under this Part.

35   Designated Internet gambling matters

                   For the purposes of this Act, the following matters are designated Internet gambling matters :

                     (a)  the formulation of a designated notification scheme;

                     (b)  procedures to be followed by Internet service providers in dealing with Internet content notified under paragraph 24(1)(b) or section 26 (for example, procedures relating to the provision of regularly updated Internet content filtering software to subscribers).



 

Division 3 General principles relating to industry code and industry standard

36   Statement of regulatory policy

             (1)  The Parliament intends that a body or association that the ABA is satisfied represents Internet service providers should develop a single code ( industry code ) that:

                     (a)  is to apply to Internet service providers; and

                     (b)  deals exclusively with the designated Internet gambling matters.

             (2)  The Parliament intends that an industry code developed, or industry standard determined, under this Part is to be in addition to any codes developed, or standards determined, under Schedule 5 to the Broadcasting Services Act 1992 .

             (3)  The Parliament intends that this Part does not, by implication, limit the matters that may be dealt with by any codes developed, or standards determined, under Schedule 5 to the Broadcasting Services Act 1992 .

             (4)  The Parliament intends that the ABA should make reasonable efforts to ensure that either:

                     (a)  an industry code is registered under this Part before Part 3 commences; or

                     (b)  an industry standard is registered under this Part before Part 3 commences.

37   Matters that must be dealt with by industry code and industry standard

Object

             (1)  The object of this section is to set out the matters to be dealt with by an industry code or industry standard.

Matters that must be dealt with by industry code or industry standard

             (2)  The Parliament intends that, for Internet service providers, there should be:

                     (a)  an industry code or an industry standard that deals with; or

                     (b)  an industry code and an industry standard that together deal with;

the designated Internet gambling matters.

Designated alternative access-prevention arrangements

             (3)  An industry code or an industry standard may provide that an Internet service provider is not required to deal with Internet content notified under paragraph 24(1)(b) or section 26 by taking steps to prevent particular end-users from accessing the content if access by the end-users is subject to an arrangement that is declared by the code or standard to be a designated alternative access-prevention arrangement for the purposes of the application of this section to those end-users.

             (4)  An industry code developed by a body or association must not declare that a specified arrangement is a designated alternative access-prevention arrangement for the purposes of the application of this section to one or more specified end-users unless the body or association is satisfied that the arrangement is likely to provide a reasonably effective means of preventing access by those end-users to prohibited Internet gambling content.

Note:          For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901 .

             (5)  An industry standard determined by the ABA must not declare that a specified arrangement is a designated alternative access-prevention arrangement for the purposes of the application of this section to one or more specified end-users unless the ABA is satisfied that the arrangement is likely to provide a reasonably effective means of preventing access by those end-users to prohibited Internet gambling content.

Note:          For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901 .

             (6)  The following are examples of arrangements that could be declared to be designated alternative access-prevention arrangements:

                     (a)  an arrangement that involves the use of regularly updated Internet content filtering software;

                     (b)  an arrangement that involves the use of a filtered Internet carriage service.

             (7)  For the purposes of this Act, if an industry code:

                     (a)  deals to any extent with procedures to be followed by Internet service providers in dealing with Internet content notified under paragraph 24(1)(b) or section 26; and

                     (b)  makes provision as mentioned in subsection (3);

then:

                     (c)  the code is taken to deal with the matter set out in paragraph 35(b); and

                     (d)  the code is taken to be consistent with subsection (2).

             (8)  For the purposes of this Act, if an industry standard:

                     (a)  deals to any extent with procedures to be followed by Internet service providers in dealing with Internet content notified under paragraph 24(1)(b) or section 26; and

                     (b)  makes provision as mentioned in subsection (3);

then:

                     (c)  the standard is taken to deal with the matter set out in paragraph 35(b); and

                     (d)  the standard is taken to be consistent with subsection (2).



 

Division 4 Industry code

38   Registration of industry code

             (1)  This section applies if:

                     (a)  the ABA is satisfied that a body or association represents Internet service providers; and

                     (b)  that body or association develops an industry code that applies to Internet service providers and deals exclusively with the designated Internet gambling matters; and

                     (c)  the body or association gives a copy of the code to the ABA; and

                     (d)  the ABA is satisfied that the code provides appropriate community safeguards for the designated Internet gambling matters; and

                     (e)  the ABA is satisfied that, before giving the copy of the code to the ABA:

                              (i)  the body or association published a draft of the code and invited members of the public to make submissions to the body or association about the draft within a specified period; and

                             (ii)  the body or association gave consideration to any submissions that were received from members of the public within that period; and

                      (f)  the ABA is satisfied that, before giving the copy of the code to the ABA:

                              (i)  the body or association published a draft of the code and invited Internet service providers to make submissions to the body or association about the draft within a specified period; and

                             (ii)  the body or association gave consideration to any submissions that were received from Internet service providers within that period.

             (2)  The ABA must register the code by including it in the Register of industry codes kept under section 53.

             (3)  A period specified under subparagraph (1)(e)(i) or (1)(f)(i) must run for at least 30 days.

             (4)  If:

                     (a)  an industry code (the new code ) is registered under this Part; and

                     (b)  the new code is expressed to replace another industry code;

the other code ceases to be registered under this Part when the new code is registered.

39   ABA may request code

             (1)  If the ABA is satisfied that a body or association represents Internet service providers, the ABA may, by written notice given to the body or association, request the body or association to:

                     (a)  develop an industry code that applies to Internet service providers and deals exclusively with the designated Internet gambling matters; and

                     (b)  give the ABA a copy of the code within the period specified in the notice.

             (2)  The period specified in a notice under subsection (1) must run for at least 120 days.

             (3)  The ABA must not make a request under subsection (1) unless the ABA is satisfied that, in the absence of the request, it is unlikely that an industry code would be developed within a reasonable period.

             (4)  The ABA may vary a notice under subsection (1) by extending the period specified in the notice.

             (5)  Subsection (4) does not, by implication, limit the application of subsection 33(3) of the Acts Interpretation Act 1901 .

             (6)  A notice under subsection (1) may specify indicative targets for achieving progress in the development of the code (for example, a target of 60 days to develop a preliminary draft of the code).

40   Publication of notice where no body or association represents Internet service providers

             (1)  If the ABA is satisfied that Internet service providers are not represented by a body or association, the ABA may publish a notice in the Gazette stating that, if such a body or association were to come into existence within a specified period, the ABA would be likely to give a notice to that body or association under subsection 39(1).

             (2)  The period specified in a notice under subsection (1) must run for at least 60 days.

41   Replacement of industry code

             (1)  Changes to an industry code are to be achieved by replacing the code instead of varying the code.

             (2)  If the replacement code differs only in minor respects from the original code, section 38 has effect, in relation to the registration of the code, as if paragraphs 38(1)(e) and (f) had not been enacted.

Note:          Paragraphs 38(1)(e) and (f) deal with submissions about draft codes.

42   Compliance with industry code

             (1)  If:

                     (a)  a person is an Internet service provider; and

                     (b)  the ABA is satisfied that the person has contravened, or is contravening, an industry code that is registered under this Part;

the ABA may, by written notice given to the person, direct the person to comply with the industry code.

             (2)  A person must comply with a direction under subsection (1).

Note:          For enforcement, see Part 5.

43   Formal warnings—breach of industry code

                   The ABA may issue a formal warning if an Internet service provider contravenes an industry code registered under this Part.



 

Division 5 Industry standard

44   ABA may determine an industry standard if a request for an industry code is not complied with

             (1)  This section applies if:

                     (a)  the ABA has made a request under subsection 39(1) in relation to the development of a code that is to:

                              (i)  apply to Internet service providers; and

                             (ii)  deal exclusively with the designated Internet gambling matters; and

                     (b)  any of the following conditions is satisfied:

                              (i)  the request is not complied with;

                             (ii)  if indicative targets for achieving progress in the development of the code were specified in the notice of request—any of those indicative targets were not met;

                            (iii)  the request is complied with, but the ABA subsequently refuses to register the code.

             (2)  The ABA may, by written instrument, determine a standard that applies to Internet service providers in relation to the designated Internet gambling matters. A standard under this subsection is to be known as an industry standard .

             (3)  Before determining an industry standard under this section, the ABA must consult the body or association to whom the request mentioned in paragraph (1)(a) was made.

Note:          See also section 52.

             (4)  A standard under subsection (2) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

             (5)  The Minister may give the ABA a written direction as to the exercise of its powers under this section.

45   ABA may determine industry standard where no industry body or association formed

             (1)  This section applies if:

                     (a)  the ABA is satisfied that Internet service providers are not represented by a body or association; and

                     (b)  the ABA has published a notice under subsection 40(1); and

                     (c)  that notice states that, if such a body or association were to come into existence within a particular period, the ABA would be likely to give a notice to that body or association under subsection 39(1); and

                     (d)  no such body or association comes into existence within that period.

             (2)  The ABA may, by written instrument, determine a standard that applies to Internet service providers and deals exclusively with the designated Internet gambling matters. A standard under this subsection is to be known as an industry standard .

Note:          See also section 52.

             (3)  A standard under subsection (2) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

             (4)  The Minister may give the ABA a written direction as to the exercise of its powers under this section.

46   ABA may determine industry standard—total failure of industry code

             (1)  This section applies if:

                     (a)  an industry code that:

                              (i)  applies to Internet service providers; and

                             (ii)  deals exclusively with the designated Internet gambling matters;

                            has been registered under this Part for at least 180 days; and

                     (b)  the ABA is satisfied that the code is totally deficient (as defined by subsection (7)); and

                     (c)  the ABA has given the body or association that developed the code a written notice requesting that deficiencies in the code be addressed within a specified period; and

                     (d)  that period ends and the ABA is satisfied that it is necessary or convenient for the ABA to determine a standard that applies to Internet service providers and deals exclusively with the designated Internet gambling matters.

             (2)  The period specified in a notice under paragraph (1)(c) must run for at least 30 days.

             (3)  The ABA may, by written instrument, determine a standard that applies to Internet service providers and deals exclusively with the designated Internet gambling matters. A standard under this subsection is to be known as an industry standard .

             (4)  If the ABA is satisfied that a body or association represents Internet service providers, the ABA must consult the body or association before determining an industry standard under subsection (3).

Note:          See also section 52.

             (5)  A standard under subsection (3) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

             (6)  The industry code ceases to be registered under this Part on the day on which the industry standard comes into force.

             (7)  For the purposes of this section, an industry code that applies to Internet service providers and deals exclusively with the designated Internet gambling matters is totally deficient if, and only if, the code is not operating to provide appropriate community safeguards in relation to the designated Internet gambling matters.

             (8)  The Minister may give the ABA a written direction as to the exercise of its powers under this section.

47   ABA may determine industry standard—partial failure of industry code

             (1)  This section applies if:

                     (a)  an industry code that:

                              (i)  applies to Internet service providers; and

                             (ii)  deals exclusively with the designated Internet gambling matters; and

                            has been registered under this Part for at least 180 days; and

                     (b)  section 46 does not apply to the code; and

                     (c)  the ABA is satisfied that the code is deficient (as defined by subsection (7)) to the extent to which the code deals with one of the designated Internet gambling matters (the deficient matter ); and

                     (d)  the ABA has given the body or association that developed the code a written notice requesting that deficiencies in the code be addressed within a specified period; and

                     (e)  that period ends and the ABA is satisfied that it is necessary or convenient for the ABA to determine a standard that applies to Internet service providers and deals with the deficient matter.

             (2)  The period specified in a notice under paragraph (1)(c) must run for at least 30 days.

             (3)  The ABA may, by written instrument, determine a standard that applies to Internet service providers and deals with the deficient matter. A standard under this subsection is to be known as an industry standard .

             (4)  If the ABA is satisfied that a body or association represents Internet service providers, the ABA must consult the body or association before determining an industry standard under subsection (3).

Note:          See also section 52.

             (5)  A standard under subsection (3) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

             (6)  On and after the day on which the industry standard comes into force, the industry code has no effect to the extent to which it deals with the deficient matter. However, this subsection does not affect:

                     (a)  the continuing registration of the remainder of the industry code; or

                     (b)  any investigation, proceeding or remedy in respect of a contravention of the industry code or section 42 that occurred before that day.

             (7)  For the purposes of this section, an industry code that applies to Internet service providers and deals exclusively with the designated Internet gambling matters is deficient to the extent to which it deals with a particular one of the designated Internet gambling matters if, and only if, the code is not operating to provide appropriate community safeguards in relation to that matter.

             (8)  The Minister may give the ABA a written direction as to the exercise of its powers under this section.

48   Compliance with industry standard

                   If:

                     (a)  an industry standard that applies to Internet service providers is registered under this Part; and

                     (b)  a person is an Internet service provider;

the person must comply with the industry standard.

Note:          For enforcement, see Part 5.

49   Formal warnings—breach of industry standard

                   The ABA may issue a formal warning if an Internet service provider contravenes an industry standard registered under this Part.

50   Variation of industry standard

             (1)  The ABA may, by written instrument, vary an industry standard that applies to Internet service providers if it is satisfied that it is necessary or convenient to do so to provide appropriate community safeguards in relation to either or both of the designated Internet gambling matters.

Note:          See also section 52.

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

51   Revocation of industry standard

             (1)  The ABA may, by written instrument, revoke an industry standard.

             (2)  If:

                     (a)  an industry code is registered under this Part; and

                     (b)  the code is expressed to replace an industry standard;

the industry standard is revoked when the code is registered.

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

52   Public consultation on industry standard

             (1)  Before determining or varying an industry standard, the ABA must:

                     (a)  cause to be published in a newspaper circulating in each State a notice:

                              (i)  stating that the ABA has prepared a draft of the industry standard or variation; and

                             (ii)  stating that free copies of the draft will be made available to members of the public during normal office hours throughout the period specified in the notice; and

                            (iii)  specifying the place or places where the copies will be available; and

                            (iv)  inviting interested persons to give written comments about the draft to the ABA within the period specified under subparagraph (ii); and

                     (b)  make copies of the draft available in accordance with the notice.

             (2)  The period specified under subparagraph (1)(a)(ii) must run for at least 30 days after the publication of the notice.

             (3)  Subsection (1) does not apply to a variation if the variation is of a minor nature.

             (4)  If interested persons have given comments in accordance with a notice under subsection (1), the ABA must have due regard to those comments in determining or varying the industry standard, as the case may be.

             (5)  In this section:

State includes the Northern Territory and the Australian Capital Territory.



 

Division 6 Industry code and industry standard to be included on a Register

53   Industry code and industry standard to be included on a Register

             (1)  The ABA is to maintain a Register in which the ABA includes:

                     (a)  all industry codes required to be registered under this Part; and

                     (b)  all industry standards; and

                     (c)  all requests made under section 39; and

                     (d)  all notices under section 40; and

                     (e)  all directions under section 42.

             (2)  The Register may be maintained by electronic means.

             (3)  The Register is to be made available for inspection on the Internet.