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Interactive Gambling Bill 2001

Part 3 Complaints system: prohibited Internet gambling content

Division 1 Making of complaints to the ABA

16   Complaints about prohibited Internet gambling content

             (1)  If a person has reason to believe that end-users in Australia can access prohibited Internet gambling content using an Internet carriage service, the person may make a complaint to the ABA about the matter.

Content of complaint

             (2)  A complaint under subsection (1) about particular Internet content must:

                     (a)  identify the Internet content; and

                     (b)  set out how to access the Internet content (for example: set out a URL or a password); and

                     (c)  if the complainant knows the country or countries in which the Internet content is hosted—set out the name of that country or those countries; and

                     (d)  set out the complainant’s reasons for believing that the Internet content is prohibited Internet gambling content; and

                     (e)  set out such other information (if any) as the ABA requires.

17   Complaints about breaches of online provider rules etc.

                   If a person has reason to believe that:

                     (a)  an Internet service provider has contravened a code registered under Part 4 that is applicable to the provider; or

                     (b)  an Internet service provider has contravened an online provider rule that is applicable to the provider;

the person may make a complaint to the ABA about the matter.

18   Form of complaint

             (1)  A complaint under this Division is to be in writing.

             (2)  However, the ABA may permit complaints to be given, in accordance with specified software requirements, by way of a specified kind of electronic transmission.

19   Residency etc. of complainant

                   A person is not entitled to make a complaint under this Division unless the person is:

                     (a)  an individual who resides in Australia; or

                     (b)  a body corporate that carries on activities in Australia; or

                     (c)  the Commonwealth, a State or a Territory.



 

Division 2 Investigations by the ABA

20   Investigation of complaints by the ABA

             (1)  The ABA must investigate a complaint made under Division 1.

             (2)  Subsection (1) has effect subject to subsections (3) and (4).

Internet content hosted in Australia—referral of complaint to an Australian police force

             (3)  If a complaint relates to Internet content hosted in Australia:

                     (a)  the ABA must not investigate the complaint; and

                     (b)  if the ABA considers that the complaint should be referred to an Australian police force—the ABA must:

                              (i)  refer the complaint to a member of an Australian police force; and

                             (ii)  give written notice to the complainant stating that the complaint has been so referred.

Frivolous or vexatious complaints

             (4)  The ABA need not investigate a complaint if:

                     (a)  the ABA is satisfied that the complaint is:

                              (i)  frivolous; or

                             (ii)  vexatious; or

                            (iii)  not made in good faith; or

                     (b)  the ABA has reason to believe that the complaint was made for the purpose, or for purposes that include the purpose, of frustrating or undermining the effective administration of this Part.

Notification of the results of an investigation

             (5)  The ABA must notify the complainant of the results of an investigation under this section.

Termination of investigation

             (6)  The ABA may terminate an investigation under this section if the ABA is of the opinion that it does not have sufficient information to conclude the investigation.

Referral to Australian police force

             (7)  The manner in which a complaint may be referred under subsection (3) to a member of an Australian police force includes (but is not limited to) a manner ascertained in accordance with an arrangement between the ABA and the chief (however described) of the police force concerned.

             (8)  If a complaint is referred to a member of an Australian police force under subsection (3), the member may refer the complaint to a member of another Australian police force.

             (9)  This section does not, by implication, limit the ABA’s powers to refer other matters to a member of an Australian police force.

21   ABA may investigate matters on its own initiative

                   The ABA may investigate any of the following matters if the ABA thinks that it is desirable to do so:

                     (a)  whether an Internet service provider is supplying an Internet carriage service that enables end-users to access prohibited Internet gambling content hosted outside Australia;

                     (b)  whether:

                              (i)  an Internet service provider has contravened a code registered under Part 4 that is applicable to the provider; or

                             (ii)  an Internet service provider has contravened an online provider rule that is applicable to the provider.

22   Conduct of investigations

             (1)  An investigation under this Division is to be conducted as the ABA thinks fit.

             (2)  The ABA may, for the purposes of an investigation, obtain information from such persons, and make such inquiries, as it thinks fit.

             (3)  This section has effect subject to Part 13 of the Broadcasting Services Act 1992 (which confers certain investigative powers on the ABA).

23   Protection from civil proceedings

                   Civil proceedings do not lie against a person in respect of loss, damage or injury of any kind suffered by another person because of any of the following acts done in good faith:

                     (a)  the making of a complaint under Division 1;

                     (b)  the making of a statement to, or the giving of a document or information to, the ABA in connection with an investigation under this Division.



 

Division 3 Action to be taken in relation to a complaint about prohibited Internet gambling content hosted outside Australia

24   Action to be taken in relation to a complaint about prohibited Internet gambling content hosted outside Australia

             (1)  If, in the course of an investigation under Division 2, the ABA is satisfied that Internet content hosted outside Australia is prohibited Internet gambling content, the ABA must:

                     (a)  if the ABA considers the content should be referred to a law enforcement agency (whether in or outside Australia)—notify the content to:

                              (i)  a member of an Australian police force; or

                             (ii)  if there is an arrangement between the ABA and the chief (however described) of an Australian police force under which the ABA is authorised to notify the content to another person or body (whether in or outside Australia)—that other person or body; and

                     (b)  if a code registered, and/or a standard determined, under Part 4 deals exclusively with the designated Internet gambling matters—notify the content to Internet service providers under the designated notification scheme set out in the code or standard, as the case may be; and

                     (c)  if paragraph (b) does not apply—give each Internet service provider known to the ABA a written notice (a standard access-prevention notice ) directing the provider to take all reasonable steps to prevent end-users from accessing the content.

Note 1:       For Internet content hosted in Australia, see subsection 20(3).

Note 2:       The ABA may be taken to have given a notice under paragraph (c)—see section 31.

             (2)  For the purposes of paragraph (1)(c), in determining whether particular steps are reasonable, regard must be had to:

                     (a)  the technical and commercial feasibility of taking the steps; and

                     (b)  the matters set out in subsection 4(3) of the Broadcasting Services Act 1992 .

             (3)  Subsection (2) does not, by implication, limit the matters to which regard must be had.

Recognised alternative access-prevention arrangements

             (4)  An Internet service provider is not required to comply with a standard access-prevention notice in relation to a particular end-user if access by the end-user is subject to a recognised alternative access-prevention arrangement (as defined by subsection (5)) that is applicable to the end-user.

             (5)  The ABA may, by written instrument, declare that a specified arrangement is a recognised alternative access-prevention arrangement for the purposes of the application of this Division to one or more specified end-users if 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 recognised alternative access-prevention arrangements under subsection (5):

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

Referral to law enforcement agency

             (8)  The manner in which Internet content may be notified under paragraph (1)(a) to a member of an Australian police force includes (but is not limited to) a manner ascertained in accordance with an arrangement between the ABA and the chief (however described) of the police force concerned.

             (9)  If a member of an Australian police force is notified of particular Internet content under this section, the member may notify the content to a member of another law enforcement agency (whether in or outside Australia).

           (10)  This section does not, by implication, limit the ABA’s powers to refer other matters to a member of an Australian police force.

25   Deferral of action in order to avoid prejudicing a criminal investigation

             (1)  If:

                     (a)  in the course of an investigation under Division 2, the ABA is satisfied that Internet content hosted outside Australia is prohibited Internet gambling content; and

                     (b)  apart from this subsection, the ABA would be required to take action under subsection 24(1) in relation to the content; and

                     (c)  a member of an Australian police force satisfies the ABA that the taking of that action should be deferred until the end of a particular period in order to avoid prejudicing a criminal investigation;

the ABA may defer taking that action until the end of that period.

             (2)  Subsection (1) has effect despite anything in section 24.

26  Anti-avoidance—notified Internet content

                   If:

                     (a)  particular Internet content has been notified to Internet service providers as mentioned in paragraph 24(1)(b); and

                     (b)  the ABA is satisfied that Internet content (the similar Internet content ) that is the same as, or substantially similar to, the first-mentioned Internet content is being hosted outside Australia; and

                     (c)  the ABA is satisfied that the similar Internet content is prohibited Internet gambling content; and

                     (d)  a code registered, and/or standard determined, under Part 4 deals exclusively with the designated Internet gambling matters;

the ABA must notify the similar Internet content to Internet service providers under the designated notification scheme set out in the code or standard, as the case may be.

27   Anti-avoidance—special access-prevention notice

             (1)  If:

                     (a)  a standard access-prevention notice relating to particular Internet content is applicable to a particular Internet service provider; and

                     (b)  the ABA is satisfied that the Internet service provider is supplying an Internet carriage service that enables end-users to access Internet content (the similar Internet content ) that is the same as, or substantially similar to, the Internet content identified in the standard access-prevention notice; and

                     (c)  the ABA is satisfied that the similar Internet content is prohibited Internet gambling content;

the ABA may give the provider a written notice ( special access-prevention notice ) directing the provider to take all reasonable steps to prevent end-users from accessing the similar Internet content at any time when the standard access-prevention notice is in force.

Note:          The ABA may be taken to have given a notice under this section—see section 31.

             (2)  For the purposes of subsection (1), in determining whether particular steps are reasonable, regard must be had to:

                     (a)  the technical and commercial feasibility of taking the steps; and

                     (b)  the matters set out in subsection 4(3) of the Broadcasting Services Act 1992 .

             (3)  Subsection (2) does not, by implication, limit the matters to which regard must be had.

Recognised alternative access-prevention arrangements

             (4)  An Internet service provider is not required to comply with a special access-prevention notice in relation to a particular end-user if access by the end-user is subject to a recognised alternative access-prevention arrangement (as defined by subsection 24(5)) that is applicable to the end-user.

28   Compliance with access-prevention notices

Standard access-prevention notice

             (1)  An Internet service provider must comply with a standard access-prevention notice that applies to the provider as soon as practicable, and in any event by 6 pm on the next business day, after the notice was given to the provider.

Special access-prevention notice

             (2)  An Internet service provider must comply with a special access-prevention notice that applies to the provider as soon as practicable, and in any event by 6 pm on the next business day, after the notice was given to the provider.

Note:          For enforcement, see Part 5.

29   Notification of Internet content

                   Internet content may be notified in accordance with this Division by:

                     (a)  setting out the content; or

                     (b)  describing the content; or

                     (c)  in any other way.

30   Application of notifications under this Division

                   A notification under this Division applies to particular Internet content only to the extent to which the content is accessed, or available for access, from an Internet site, or a distinct part of an Internet site, specified in the notification.

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

31   ABA may be taken to have issued access-prevention notices

             (1)  Subject to subsection (2), the ABA may, by written instrument, formulate 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 done any or all of the following:

                              (i)  given each Internet service provider a standard access-prevention notice under paragraph 24(1)(c);

                             (ii)  given each Internet service provider a special access-prevention notice under section 27.

             (2)  It is a minimum requirement for a scheme formulated under subsection (1) that each Internet service provider be alerted by electronic means to the existence of a notice.

Note:          For example, it is not sufficient for the ABA to make notices available on the Internet (with or without security measures) without notifying Internet service providers that a notice has been issued.

             (3)  Paragraph 24(1)(c) has effect, in relation to a scheme under subsection (1), as if the reference in that paragraph to each Internet service provider known to the ABA were a reference to each Internet service provider.

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