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Interactive Gambling Bill 2001

Part 1 Introduction

   

1   Short title

                   This Act may be cited as the Interactive Gambling Act 2001 .

2   Commencement

             (1)  Subject to this section, this Act commences on the day on which it receives the Royal Assent.

             (2)  Parts 2 and 7A commence on the 28th day after the day on which this Act receives the Royal Assent.

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

             (3)  The following provisions of this Act commence on a day to be fixed by Proclamation:

                     (a)  Part 3;

                     (b)  section 42;

                     (c)  section 43;

                     (d)  section 48;

                     (e)  section 49;

                      (f)  Part 5.

             (4)  If the provisions referred to in subsection (3) do not commence under that subsection within the period of 6 months after the day on which this Act receives the Royal Assent, those provisions commence on the first day after the end of that period.

3   Simplified outline

                   The following is a simplified outline of this Act:

•      This Act regulates interactive gambling services by:

               (a)     prohibiting interactive gambling services from being provided to customers in Australia; and

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

              (b)     establishing a complaints-based system to deal with Internet gambling services where the relevant content ( prohibited Internet gambling content ) is available for access by customers in Australia.

•      A person may complain to the ABA about prohibited Internet gambling content .

•      If prohibited Internet gambling content is hosted in Australia and the ABA considers that the complaint should be referred to an Australian police force, the ABA must refer the complaint to a member of an Australian police force.

•      If prohibited Internet gambling content is hosted outside Australia , the ABA must:

               (a)     if the ABA considers that the content should be referred to a law enforcement agency—notify the content to a member of an Australian police force; and

              (b)     notify the content to Internet service providers so that the providers can deal with the content in accordance with procedures specified in an industry code or industry standard (for example, procedures relating to the provision of regularly updated Internet content filtering software to subscribers).

•      Bodies and associations that represent Internet service providers may develop an industry 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.

•      This Act prohibits the advertising of interactive gambling services.

4   Definitions

                   In this Act, unless the contrary intention appears:

ABA means the Australian Broadcasting Authority.

access has the same meaning as in Schedule 5 to the Broadcasting Services Act 1992 .

Australia , when used in a geographical sense, includes the external Territories.

Australian-customer link has the meaning given by section 8.

Australian police force means:

                     (a)  the Australian Federal Police; or

                     (b)  the police force of a State or Territory.

bet includes wager.

broadcasting service means a broadcasting service (as defined by the Broadcasting Services Act 1992 ) provided in Australia.

business includes a venture or concern in trade or commerce, whether or not conducted on a regular, repetitive or continuous basis. To avoid doubt, the fact that a club or association provides services to its members does not prevent those services from being services provided in the course of carrying on a business.

business day means a day that is not a Saturday, a Sunday or a public holiday in the place concerned.

Chapter 8 agreement has the same meaning as in the Corporations Law.

civil proceeding includes a civil action.

content service means a content service (as defined by the Telecommunications Act 1997 ) provided using a listed carriage service.

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

datacasting service means a datacastingservice (within the meaning of the Broadcasting Services Act 1992 ) that is provided in Australia under a datacasting licence.

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

designated country has the meaning given by section 9A.

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

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

designated Internet gambling matter has the meaning given by section 35.

designated notification scheme means a scheme:

                     (a)  in the nature of a scheme for substituted service; and

                     (b)  under which the ABA is taken, for the purposes of this Act, to have notified each Internet service provider of a matter or thing.

Note:          For example, the ABA may make matters or things available on the Internet (with or without security measures).

engage in conduct means:

                     (a)  do an act; or

                     (b)  omit to perform an act.

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

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

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

exempt service has the meaning given by section 10.

Federal Court means the Federal Court of Australia.

futures contract has the same meaning as in the Corporations Law.

gambling service means:

                     (a)  a service for the placing, making, receiving or acceptance of bets; or

                     (b)  a service the sole or dominant purpose of which is to introduce individuals who wish to make or place bets to individuals who are willing to receive or accept those bets; or

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

                     (d)  a service for the supply of lottery tickets; or

                     (e)  a service for the conduct of a game, where:

                              (i)  the game is played for money or anything else of value; and

                             (ii)  the game is a game of chance or of mixed chance and skill; and

                            (iii)  a customer of the service gives or agrees to give consideration to play or enter the game; or

                      (f)  a gambling service (within the ordinary meaning of that expression) that is not covered by any of the above paragraphs.

game includes an electronic game.

industry code has the meaning given by section 33.

industry standard has the meaning given by section 34.

interactive gambling service has the meaning given by section 5.

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

Internet carriage service means a listed carriage service that enables end-users to access the Internet.

Internet content has the same meaning as in Schedule 5 to the Broadcasting Services Act 1992 .

Internet service provider has the same meaning as in Schedule 5 to the Broadcasting Services Act 1992 .

listed carriage service has the same meaning as in the Telecommunications Act 1997 .

lottery includes an electronic lottery.

online provider rule has the meaning given by section 54.

option contract has the same meaning as in Chapter 7 of the Corporations Law.

prohibited Internet gambling content means Internet content that is accessed, or available for access, by an end-user in the capacity of customer of a prohibited Internet gambling service.

Note:          This definition relates to the complaints system.

prohibited Internet gambling service has the meaning given by section 6.

Note:          This definition relates to the complaints system.

relevant agreement has the same meaning as in the Corporations Law.

special access-prevention notice means a notice under section 27.

standard access-prevention notice means a notice under paragraph 24(1)(c).

standard telephone service has the same meaning as in the Telecommunications (Consumer Protection and Service Standards) Act 1999 .

telephone betting service means a gambling service provided on the basis that dealings with customers are wholly by way of voice calls made using a standard telephone service.

ticket includes an electronic ticket.

voice call means:

                     (a)  a voice call within the ordinary meaning of that expression; or

                     (b)  a call that involves a recorded or synthetic voice; or

                     (c)  if a call covered by paragraph (a) or (b) is not practical for a particular customer with a disability (for example, because the customer has a hearing impairment)—a call that is equivalent to a call covered by either of those paragraphs;

whether or not the customer responds by way of pressing buttons on a telephone handset or similar thing.

5   Interactive gambling services

             (1)  For the purposes of this Act, an interactive gambling service is a gambling service, where:

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

                     (b)  the service is provided to customers using any of the following:

                              (i)  an Internet carriage service;

                             (ii)  any other listed carriage service;

                            (iii)  a broadcasting service;

                            (iv)  any other content service;

                             (v)  a datacasting service.

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

             (2)  Subsection (1) has effect subject to subsection (3).

Excluded services

             (3)  For the purposes of this Act, none of the following services is an interactive gambling service :

                     (a)  a telephone betting service;

                    (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);

                     (b)  a service to the extent to which it relates to the entering into of contracts that, under the Corporations Law, are exempt from a law relating to gaming or wagering (see section 9);

                     (c)  an exempt service (see section 10).

6   Prohibited Internet gambling services

             (1)  For the purposes of this Act, a prohibited Internet gambling service is a gambling service, where:

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

                     (b)  the service is provided to customers using an Internet carriage service; and

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

Note:          This definition relates to the complaints system.

          (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.

             (2)  Subsection (1) has effect subject to subsection (3).

Excluded services

             (3)  For the purposes of this Act, none of the following services is a prohibited Internet gambling service :

                    (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);

                     (a)  a service to the extent to which it relates to the entering into of contracts that, under the Corporations Law, are exempt from a law relating to gaming or wagering (see section 9);

                     (b)  an exempt service (see section 10).

8   Australian-customer link

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

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.

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.

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.

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.

9   Contracts exempt under the Corporations Law

                   A reference in this Act to contracts that, under the Corporations Law, are exempt from a law relating to gaming or wagering is a reference to any of the following:

                     (a)  option contracts covered by subsection 778(1) of the Corporations Law;

                     (b)  relevant agreements covered by subsection 778(2) of the Corporations Law;

                     (c)  futures contracts covered by subsection 1141(1) of the Corporations Law;

                     (d)  Chapter 8 agreements covered by subsection 1141(2) of the Corporations Law.

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 .

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.

10   Exempt services

             (1)  The Minister may, by writing, determine that each service included in a specified class of services is an exempt service for the purposes of this Act.

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

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

11   Extended meaning of use

                   Unless the contrary intention appears, a reference in this Act to the use of a thing is a reference to the use of the thing either:

                     (a)  in isolation; or

                     (b)  in conjunction with one or more other things.

12   Crown to be bound

             (1)  This Act binds the Crown in each of its capacities.

             (2)  This Act does not make the Crown liable to be prosecuted for an offence.

             (3)  The protection in subsection (2) does not apply to an authority of the Crown.

13   Extension to external Territories

                   This Act extends to every external Territory.

14   Extra-territorial application

                   Unless the contrary intention appears, this Act extends to acts, omissions, matters and things outside Australia.