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Interactive Gambling Bill 2001

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1998-1999-2000-2001

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

THE SENATE

 

 

 

 

 

 

 

 

 

 

 

INTERACTIVE GAMBLING BILL 2001

 

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

 

 

Amendments to be moved on behalf of the Government

 

 

 

 

(Circulated by authority of the Minister for Communications,

 Information Technology and the Arts, Senator the Hon. Richard Alston)

 

 

 



 

AMENDMENTS TO INTERACTIVE GAMBLING BILL 2001

 

 

OUTLINE

 

The Interactive Gambling Bill 2001 (the Bill) provides for restrictions and complaints in relation to interactive gambling services.  The framework in the Bill has two main elements.  Firstly it creates an offence of providing an Australian-based interactive gambling service to customers in Australia.  Secondly the Bill establishes a complaints scheme which will enable Australians to make complaints about interactive gambling services on the Internet which are available to Australians. 

 

The proposed Government Amendments to the Interactive Gambling Bill 2001:

 

·          exempt lotteries from the scope of the Bill;

·          exempt wagering from the scope of the Bill;

·          clarify that television games and trade promotions are exempt from the scope of the Bill;

·          clarify that linked jackpot gaming machines and other gaming services that are provided to customers who are in a public place are exempt from the scope of the Bill;

·          extend the offence of providing an interactive gambling service to persons in Australia extraterritorially so that it applies to offshore interactive gambling service providers;

·          insert into the main offence provision further matters that can be taken into account regarding the defence of reasonable diligence;

·          introduce a new Part 7A of the Bill to prohibit the advertising of interactive gambling services in Australia; and

·          clarify certain investigation powers of the Australian Broadcasting Authority regarding the complaints system in Part 3 of the Bill.

 

Exemption of lotteries

 

The proposed amendments to Part 1 of the Bill (Amendments (9), (18), (22) and (27)) give effect to the Government decision to exempt lotteries by clarifying that a gambling service does not include a service for the conduct of a lottery or a service for the supply of lottery tickets.  The exemption of lotteries reflects the majority report on the Bill by the Senate Legislation Committee on Environment, Communications, Information Technology and the Arts, which recommended that the Bill be amended to exclude lotteries and lotto.  The exemption also reflects the 1999 Productivity Commission report on gambling industries, in which the Commission found that there is minimal problem gambling behaviour associated with lotteries.

 

The lottery exemption does not, however, cover electronic forms of scratch lotteries or other instant lotteries (see Amendment (27)).  This reflects Government concerns that electronic forms of instant lottery products offer a potential avenue for ‘instant’ gambling which is not unlike Internet-based poker machines, and therefore should be banned by the Bill.

 

Exemption of wagering

 

The proposed amendments to Part 1 of the Bill (Amendments (10), (18), (22) and (24)) give effect to the Government decision to exempt wagering from the scope of the Bill, with the exception of ball-by-ball or micro-event wagering, which will continue to be within the scope of the prohibition.  This reflects the operation of the Interactive Gambling (Moratorium) Act 2000 , which exempted wagering before an event had commenced from the operation of that Act.  The removal of wagering from the Bill recognises that Internet wagering is essentially a substitute for telephone betting, and the racing industry—one of Australia’s largest employers—already relies on the delivery of services through Internet wagering, especially in regional areas.

 

Television games and trade promotions

 

Proposed amendments to Part 1 of the Bill (Amendments (6), (7), (18), (22) and (26)) address concerns that the Bill may operate so as to unintentionally ban interactive television game shows or promotions where there is some form of entry fee such as a 1900 telephone call.  The amendments provide that gambling services expressly and exclusively associated with particular broadcast or datacast programs, and certain promotions associated with broadcast or datacast advertisements, are excluded from the Bill. 

 

An additional amendment to Part 8 of the Bill (Amendment (33)) provides for a Ministerial review of this exemption.  The intention of the review is to address the possible expansion over the next few years of interactive TV games and promotions, and ensure such an expansion does not lead to adverse social consequences even though such services may not be ‘gambling’ in the usually understood sense.

 

Linked jackpot poker machines and other established gaming services

 

Legal advice has indicated that the Bill may prohibit established gaming services that happen to use communications links, such as poker machines connected between and possibly within licensed premises.  Proposed amendments to Part 1 of the Bill (Amendments (8), (18), (22) and (25)) provide that gaming services provided to customers in a public place are exempt from the Bill.  The amendments provide that a  ‘public place’ is a place or part of a place to which the public ordinarily has access, and include a shop, casino, bar or club. 

 

The effect of the amendment, in combination with clause 69 of the Bill, is to exclude gaming services provided in accordance with a State or Territory law where they are provided to customers in a public place.  (Clause 69 of the Bill preserves any State or Territory laws that are capable of operating concurrently with the Bill.)

 

Extraterritorial application of main offence provision

 

Amendments to Parts 1 and 2 of the Bill (Amendments (2) to (5), (11) to (15), (17), (23), and (28) to (31)) extend the offence of providing an interactive gambling service to persons in Australia to offshore providers.  This means that any interactive gambling operator, either within or outside Australia, would be committing an offence

if it had customers in Australia. 

 

The amendments provide for this change by removing the ‘Australian-provider link’ that currently applies in clause 7 of the Bill.  The extraterritorial extension of the offence is subject to section 15.4 of the Criminal Code , which relates to extended geographical jurisdiction.

 

Defence of reasonable diligence

 

Amendment (31) to Part 2 of the Bill adds detail to the defence of ‘reasonable diligence’ to the offence of providing an interactive gambling service to persons in Australia. 

 

Advertising ban

 

Amendment (32) inserts a new Part 7A of the Bill to prohibit the advertising of interactive gambling services.  The prohibition applies to both online and offline advertising of interactive gambling in Australia and the external territories.

 

The proposed prohibition in Part 7A is to apply to any person who publishes or broadcasts an advertisement in Australia for any interactive gambling service (whether or not the interactive gambling service has any Australian customers), subject to certain exceptions set out in Part 7A.  The proposed prohibition does not extend to advertisements published in overseas media such as magazines published overseas or websites that are aimed at non-Australian audiences.

 

The amendments are modelled broadly on the Tobacco Advertising Prohibition Act 1992 (the Tobacco Act).  The amendments include transitional provisions modelled on the equivalent provisions in the Tobacco Act to accommodate existing arrangements relating to the advertising of interactive gambling services.

 

There are two general offences:



·        an offence of broadcasting an interactive gambling advertisement in Australia; and

·        an offence of publishing an interactive gambling advertisement in Australia. 

 

Investigation powers of the Australian Broadcasting Authority

 

Proposed amendments (19) and (20) clarify that the Australian Broadcasting Authority (ABA), when investigating complaints about prohibited Internet gambling content under Part 3 of the Bill, will need to establish that the service could be accessed by end users in Australia, rather than prove that the service actually has customers.  Establishing that a service actually has customers would lead to more onerous and resource-intensive investigations on the part of the ABA.

 

 

FINANCIAL IMPACT STATEMENT

 

The proposed Government amendments are not expected to have any significant financial impact on Commonwealth expenditure or revenue.



NOTES ON AMENDMENTS TO THE

INTERACTIVE GAMBLING BILL 2001

 

 

AMENDMENT (1)

 

Amendment (1) makes consequential amendments to the commencement provision in clause 2 of the Bill as a result of proposed amendments relating to the prohibition on advertising of interactive gambling services in new Part 7A of the Bill. 

 

Subclause 2(2), as proposed to be amended, will provide that the advertising prohibition commences on the 28 th day after the day on which the Bill receives the Royal Assent.

 

This will mean that the prohibition on the advertising of interactive gambling services will commence at the same time as the prohibition on providing interactive gambling services to customers in Australia.  This will provide industry, including interactive gambling services providers, advertisers and broadcasters with additional lead time to put in place appropriate arrangements to avoid contravening the advertising prohibition.

 

 

AMENDMENTS (2) AND (3)

 

Clause 3 of the Bill sets out a simplified outline of the Bill to assist readers.

 

Amendment (2) amends the simplified outline by omitting the reference to ‘Australian-based’ contained in the first dot point of the outline.  This is a consequence of Amendments (15) and (23), which remove the need for an Australian-provider link for the offence of providing an interactive gambling service to persons physically present in Australia.  The removal of the Australian-provider link from the offence provision in clause 15 is explained in detail below in relation to Amendment (15).

 

Amendment (3) amends the simplified outline as a consequence of Amendment (32). Amendment (32) will introduce a new Part 7A of the Bill to prohibit the advertising of interactive gambling services.

 

 

AMENDMENTS (4) AND (5)

 

Amendment (4) removes the definition of ‘Australian-based interactive gambling service’ as a consequence of the extension of the offence provision in clause 15 to persons located outside Australia.

 

Amendment (5) omits the definition in clause 4 of ‘Australian-provider link’ as a consequence of the extension of the offence provision in clause 15 to persons located outside Australia.

 

 

AMENDMENTS (6) AND (7)

 

Amendment (6) provides for a new definition of ‘designated broadcasting link’, which is defined to have a meaning given by new clause 8C.  New clause 8C, set out in Amendment (25), provides that for the purposes of the Bill a gambling service has a designated broadcasting link where the conditions of paragraphs 8C(1)(a) and (b) are satisfied.

 

Amendment (7) provides for a new definition of ‘designated datacasting link’, which is defined to have a meaning given by new clause 8C.  New clause 8C, set out in Amendment (25), provides that for the purposes of the Bill a gambling service has a designated datacasting link where the conditions of paragraphs 8C(2)(a) and (b) are satisfied.

 

A gambling service that has a designated broadcasting link or a designated datacasting link is an excluded service for the purposes of subclauses 5(3) and 6(3) of the Bill.  Consequently it does not come within the offence provision in clause 15, and does not come within the scope of the complaints system in Part 3 of the Bill.

 

 

AMENDMENT (8)

 

Amendment (8) provides for a new definition of ‘excluded gaming service’, which is defined to have a meaning given by new clause 8B.  New clause 8B, set out in Amendment (25), provides that 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.

 

An excluded gaming service is an excluded service for the purposes of subclauses 5(3) and 6(3) of the Bill.  Consequently it does not come within the offence provision in clause 15, and does not come within the scope of the complaints system in Part 3 of the Bill.

 

 

AMENDMENT (9)

 

Amendment (9) provides for a new definition of ‘excluded lottery service’, which is defined to have a meaning given by new clause 8D.  New clause 8D, set out in Amendment (27), provides that an excluded lottery service is a service for the conduct of a lottery of a service for the supply of lottery tickets.  New subclause 8D(2) provides that an excluded lottery service does not apply to an electronic form of scratch lottery of other instant lottery.

 

An excluded lottery service is an excluded service for the purposes of subclauses 5(3) and 6(3) of the Bill.  Consequently it does not come within the offence provision in clause 15, and does not come within the scope of the complaints system in Part 3 of the Bill.

 

 

AMENDMENT (10)

 

Amendment (10) provides for a new definition of ‘excluded wagering service’, which is defined to have a meaning given by new clause 8A.  New clause 8A, set out in Amendment (24), provides that an excluded wagering service is a service that satisfies the conditions in paragraphs 8A(1)(a) and (b) and the conditions in subclauses 8A(2) and (3).

 

An excluded wagering service is an excluded service for the purposes of subclauses 5(3) and 6(3) of the Bill.  Consequently it does not come within the offence provision in clause 15, and does not come within the scope of the complaints system in Part 3 of the Bill.

 

 

AMENDMENT (11)

 

Amendment (11) inserts a new definition of ‘interactive gambling service’.  This new definition replaces the definition of ‘Australian interactive gambling service’ as a consequence of the extension of the offence provision in clause 15 to persons located outside Australia.  The change to the definition is discussed in more detail below in relation to Amendment (15).

 

‘Interactive gambling service’ is defined to have a meaning given by amended clause 5, which provides that an interactive gambling service is a gambling service (defined in clause 4 of the Bill) where the conditions in subclause 5(1) are satisfied and the service is not an excluded service.

 

The term ‘interactive gambling service’ is used in the offence provision in clause 15 of the Bill.  The term is also used in the new prohibition on the advertising of interactive gambling services in new Part 7A of the Bill.

 

 

AMENDMENT (12)

 

Amendment (12) amends the heading to clause 5 of the Bill.  The current heading to clause 5 is ‘Australian-based interactive gambling services’.  The amendment removes the words ‘Australian-based’ and changes the heading to ‘Interactive gambling services’.  This reflects the proposed changes to the offence provision in clause 15, which extend the offence so it applies to both overseas and Australian-based providers of interactive gambling services, rather than just Australian-based providers.

 

 

AMENDMENTS (13) AND (14)

 

Amendments (13) and (14) amend clause 5 of the Bill, which in its current form sets out the definition of ‘Australian-based interactive gambling service’.

 

Amendment (13) omits the words ‘Australian-based’ in subclause 5(1) so that it refers to an ‘interactive gambling service’.

 

Amendment (14) makes a minor amendment to subparagraph 5(1)(b)(v) by omitting ‘service; and’ and substituting ‘service’.  This takes into account the deletion of paragraph 5(1)(c) of the Bill.

 

 

AMENDMENT (15)

 

Amendment (15) amends subclause 5(1) of the Bill by removing paragraph (c).

 

Current paragraph 5(1)(c) of the Bill provides that an ‘Australian-based interactive gambling service’ is a gambling service where, in addition to conditions in paragraphs (a) and (b), the service has an Australian provider link as provided for by paragraph (c).

 

The effect of removing the Australian provider link in paragraph (c) is to extend the application of the offence offshore so that it applies to all providers of interactive gambling services, not just Australian-based ones, when they provide those services to Australians.  This means that any interactive gambling operator, either within or outside Australia, would be committing an offence if it had customers in Australia.  This is intended to serve as a strong deterrent to foreign operators soliciting Australian customers.

 

The extraterritorial effect of the offence is specifically provided for by new subclause 15(5), as inserted by Amendment (31).  New subclause 15(5) provides that section 15.4 of the Criminal Code applies to the offence in clause 15(1).  Section 15.4 of the Criminal Code , as set in the Criminal Code Act 1995 , relates to extended geographical jurisdiction, and is discussed in more detail in relation to Amendment (31).

 

 

AMENDMENT (16)

 

Amendment (16) amends the note at the end of clause 5 of the Bill by including a reference to new Part 7A.  The term ‘interactive gambling services’ is used in Part 7A of the Bill, which prohibits the advertising of interactive gambling services.

 

 

AMENDMENT (17)

 

Amendment (17) omits the words ‘Australian-based’ in subclause 5(3) so that it refers to an ‘interactive gambling service’.  This is a consequence of the changes made by Amendment (15) as discussed above.

 

 

AMENDMENT (18)

 

Amendment (18) creates additional exemptions to the main offence in clause 15 of providing interactive gambling services to customers in Australia.

 

The amendment provides that none of the following services is an interactive gambling service for the purposes of the offence provision:

 

·          an excluded wagering service;

·          an excluded gaming service;

·          services that have a designated broadcasting link;

·          services that have a designated datacasting link; and

·          an excluded lottery service.

 

These interactive gambling services are excluded even though they may utilise telecommunications or other communications services listed in paragraph 5(1)(b) of the Bill.  The amendment is intended to exclude all forms of these services, whether they are provided on-line or through more traditional ‘offline’ means.

 

The term ‘excluded wagering service’ is defined in new section 8A of the Bill, as set out in Amendment (24).  The term ‘excluded gaming service’ is defined in new section 8B, as set out in Amendment (25).  The terms ‘designated broadcasting link’ and ‘designated datacasting link’ are defined in new section 8C, as set out in Amendment (26).  The term ‘excluded lottery service’ is defined in new section 8D, as set out in Amendment (27).

 

 

AMENDMENT (19)

 

Amendment (19) amends the definition of ‘prohibited Internet gambling service’ in clause 6 of the Bill by replacing current paragraph 6(1)(c) with a new paragraph.  New paragraph 6(1)(c) provides that a prohibited Internet gambling service is a gambling service where, under new paragraph (c), an individual who is physically present in Australia is capable of becoming a customer of the service.  ‘An individual’ refers to a natural person.

 

The effect of the proposed amendment is that the Australian Broadcasting Authority (ABA), when investigating complaints about prohibited Internet gambling content under Part 3 of the Bill, will need to establish that the service could be accessed by end users in Australia, rather than prove that the service actually has customers.  Establishing that a service actually has customers would lead to more onerous and resource-intensive investigations on the part of the ABA.  If in the course of an investigation under Division 2 of Part 3 the ABA is satisfied that Internet content hosted outside Australia is prohibited Internet gambling content, the ABA must take certain steps set out in subclause 24(1) of the Bill.

 

 

AMENDMENT (20)

 

Amendment (20) inserts a new subclause 6(1A) relating to prohibited Internet gambling services.

 

Subclause 6(1A) provides that for the purposes of new paragraph 6(1)(c), discussed above in relation to Amendment (19), in determining whether a person physically present in Australia is capable of becoming a customer of a gambling service, it is to be assumed by the investigating body that the person will not falsify or conceal his or her identity or location.  This reflects the intention that new paragraph 6(1)(c) should be interpreted in the context of an ordinary person, and assumes that an ordinary customer would not deliberately conceal his or her identity or location.

 

 

AMENDMENT (21)

 

Amendment (21) makes a minor drafting change to subclause 6(3) by omitting ‘neither’ and substituting ‘none’ as a consequence of the insertion of additional excluded services to subclause 6(3).

 

 

AMENDMENT (22)

 

Amendment (22) excludes additional specified services from the scope of the complaints system in Part 3 of the Bill.  Under the complaints system in Part 3, Australians are able to complain to the ABA if they believe that Australian customers can access prohibited Internet gambling content over the Internet. 

 

The amendment provides that none of the following services is a prohibited Internet gambling service for the purposes of the complaints system:

 

·          an excluded wagering service;

·          an excluded gaming service;

·          services that have a designated broadcasting link;

·          services that have a designated datacasting link; and

·          an excluded lottery service.

 

The term ‘excluded wagering service’ is defined in new section 8A of the Bill, as set out in Amendment (24).  The term ‘excluded gaming service’ is defined in new section 8B, as set out in Amendment (25).  The terms ‘designated broadcasting link’ and ‘designated datacasting link’ are defined in new section 8C, as set out in Amendment (26).  The term ‘excluded lottery service’ is defined in new section 8D, as set out in Amendment (27).

 

 

AMENDMENT (23)

 

Amendment (23) omits clause 7 of the Bill.  This as a consequence of the extension of the offence provision in clause 15 to persons located outside Australia.

 

The major offence created by the Bill as currently drafted, of providing an interactive gambling service to persons physically present in Australia, applies to persons with an ‘Australian-provider link’ as defined in current clause 7 of the Bill.  This requires some connection to Australia, either through carrying on a business in Australia or where the central management and control of the service is in Australia.

 

The removal of clause 7, which contains the definition of Australian-provider link reflects the intention to extend the offence provision in clause 15 to both Australian providers and other providers wherever they might be based.  This is discussed in more detail above in relation to Amendment (15).

 

 

AMENDMENT (24)

 

Amendment (24) inserts a new clause 8A to define ‘excluded wagering service’. 

 

For the purpose of new clause 8A, wagering services are different to gaming services.  Wagering is focused on a bet on an event or contingency while gaming is focused on playing games of chance for money or something else of value.  In a wager, the bettor usually does not participate in the actual event or contingency.  In contrast, interactive gaming involves the bettor in the game.

 

Paragraph 8A(1)(a) provides that an excluded wagering service is a service that relates to betting on a horse race, harness race, greyhound race or a sporting event, or a series of those races or sporting events.  ‘Sporting event’ is to be given its ordinary meaning.  Therefore, for example, a completed match of tennis is a sporting event, but if only a part of that match is completed, for example just one game or set, then it is not a sporting event for the purposes of subclause 8A(1).

 

Paragraph 8A(1)(b) provides that other wagering services that relate to betting on an event, a series of events, or a contingency are also excluded wagering services.  In this context, a wager includes a bet on any outcome or event.  For example, a bet on the weather for a particular day would be a wager for the purposes of this paragraph.

 

Paragraph 8A(1)(b) distinguishes an ‘event’ from a ‘series of events’.  This is consistent with the anti-hoarding provisions in Part 10A of the Broadcasting Services Act 1992 , which also distinguish between ‘events’ and a ‘series of events’.  For example, in the case of the game of cricket, the ‘event’ would be characterised as a single cricket match.  However, the test series would be characterised as a ‘series of events’.  In the game of tennis, an individual tennis match would be an ‘event’.  However a tennis tournament, such as the Australian Open, would be characterised as a ‘series of events’.  

 

Paragraphs 8A(1)(a) and (b) are intended to cover a service that introduces individuals who wish to make or place bets to individuals who are willing to receive or accept bets on the events or contingencies specified in those paragraphs.  Such a service would be a ‘service that relates to betting’ on those events or contingencies.

 

Subclause 8A(2) is intended to exclude from the definition of ‘excluded wagering service’ types of continuous wagering, such as real-time ‘ball-by-ball’ betting on interactive television, that could evolve into highly addictive and easily accessible forms of interactive gambling.  Another type of continuous wagering is ‘betting on the run’, where a person bets after an event has commenced on the outcome of that event.  An example of betting on the run is where a person bets on who will win a football match after that match has already started (for instance, at half time). 

 

These types of continuous wagering mentioned above are also known as ‘micro-wagering’.

 

Paragraph 8A(2)(a) provides that a service is not an excluded wagering service to the extent to which it 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.  Therefore, for example, an interactive gambling service that enables the placing of a bet on the result of a cricket match after the first ball has been bowled is not an excluded wagering service.  Such a service will be covered by the offence provision in clause 15 of the Bill.

 

Paragraph 8A(2)(b) provides that a service is not an excluded wagering service to the extent to which it relates to betting on a contingency that may or may not happen in the course of a sporting event, where the bets are made after the event has commenced.  Examples of such contingency betting after an event has commenced include who is going to take the most wickets in a cricket match, whether the next ball in a cricket match will take a wicket, who will serve the next ace in a tennis match or who will win a tennis match after the first set has finished but before the second set has commenced.  Such micro-wagering services will be covered by the offence provision in clause 15 of the Bill.

 

However paragraph 8A(2)(b) does not cover services relating to betting on extraneous events unrelated to the official course of an event, after an event has started.  For example, betting on the likelihood of rain during a cricket match, after the match has begun, would not be categorised as a ‘contingency that may or may not happen in the course of a ‘sporting event’.  Consequently this would mean that a service related to such betting would be an excluded wagering service and will not be covered by the Bill.

 

Nor would subclause 8A(2) cover betting services on the outcome of a tournament or series after the first match within that tournament or series has begun.  Subclause 8A(2) only covers wagering on a sporting event after the event has begun.  A ‘sporting event’ refers to an individual event.  It does not cover wagering on a ‘series of sporting events’, such as a tournament or series, after an individual event has begun.  Paragraph 8A(2)(b) clearly distinguishes between an ‘event’ and a ‘series of events’ (see discussion above on paragraph 8A(2)(b)).  Consequently, betting services on the final outcome of a cricket test series after the first cricket match has begun would not be covered by subclause 8A(2) and therefore would be excluded from the Bill.

 

Paragraphs 8A(3)(a) and (b) provide that a service for the conduct of a scratch lottery or other instant lottery, or the service for the supply of tickets in a scratch lottery or other instant lottery is not an excluded wagering service for the purposes of clause 8A.  Paragraph 8A(3)(c) provides that a service relating to the betting on the outcome of a scratch lottery or other instant lottery is not an excluded wagering service for the purposes of clause 8A.  Paragraphs 8A(3)(a) to (c) relate to excluded lottery services in new clause 8D and ensure that services which are properly characterised as interactive lottery services do not come within the exemption provided in new paragraph 5(3)(aa) of the Bill.  For example, the betting on the outcome of an electronic instant scratch ticket service would not be excluded wagering service and will still be subject to the offence provision in clause 15 of the Bill.

 

Paragraph 8A(3)(d) provides that a service for the conduct of a game covered by paragraph (e) of the definition of ‘gambling service’ in clause 4 of the Bill is not an excluded wagering service for the purposes of clause 8A.  Games relevant to this paragraph are games played for money or anything else of value, which are of chance or mixed skill and chance and involve the customer giving consideration to play or enter the game.  Examples of such games include roulette and games played on poker machines.  There is no skill involved in these games.

 

Paragraph 8A(3)(e) provides that a service that relates to betting on the outcome of a game of chance or of mixed chance and skill is not an excluded wagering service for the purposes of clause 8A. 

 

For example, an interactive gambling service which involves a game of virtual roulette, or bet on the outcome of the spin of a virtual roulette wheel, would not be an excluded wagering service and will still be subject to the offence provision in clause 15 of the Bill.  This ensures that services which are properly characterised as interactive gaming services do not come within the exemption provided in new paragraph 5(3)(aa) of the Bill.

 

The effect of new clause 8A, in combination with paragraph 5(3)(aa) of the Bill, is that an excluded wagering service is not an ‘interactive gambling service’.  Consequently it does not come within the offence provision in clause 15.  Similarly, paragraph 6(3)(ab) provides that an excluded wagering service does not come within the complaints system in relation to prohibited Internet content, set out in Part 3 of the Bill.

 

 

AMENDMENT (25)

 

Amendment (25) inserts a new clause 8B to define ‘excluded gaming service’. 

 

Subclause 8B(1) provides that an excluded gaming service is a service for the conduct of a game covered by paragraph (e) of the definition of ‘gambling service’ in clause 4 of the Bill, to the extent to which the service is provided to customers who are in a public place.

 

Games covered by paragraph (e) of the definition of ‘gambling service’ in clause 4 are games played for money or anything else of value, which are of chance or mixed skill and chance and involve the customer giving consideration to play or enter the game.  Examples of such games include roulette, games played on poker machines and games played on machines that utilise linked jackpots.  There is no skill involved in these games.

 

Subclause 8B(2) provides for definitions of ‘public place’ and ‘section of the public’.

 

A ‘public place’ means a place or part of a place to which the public ordinarily has access whether or not by payment or by invitation.  ‘The public’ includes a ‘section of the public’.  Examples of public places include a shop, casino, bar or club.

 

‘Section of the public’ includes the members of a particular club, society or organisation.  This means that “members-only” clubs, which provide traditional gambling services such as poker machines, are included in the definition of ‘public place’.  ‘Section of the public’ does not include a group consisting only of persons with a common workplace or a common employer.  It is not intended that common workplaces be included in the definition of ‘public place’. 

 

The effect of new clause 8B, in combination with paragraph 5(3)(ab) of the Bill, is that an excluded gaming service is not an ‘interactive gambling service’.  Consequently it does not come within the offence provision in clause 15.  Similarly, paragraph 6(3)(ab) provides that an excluded gaming service does not come within the complaints system in relation to prohibited Internet content, set out in Part 3 of the Bill.

 

The effect of paragraph 5(3)(ab), in combination with clause 69 of the Bill, is to exclude gaming services provided in accordance with a State or Territory law where they are provided to customers in a public place.

 

Clause 69 of the Bill preserves any State or Territory laws that are capable of operating concurrently with the Bill.  Therefore, a gaming service that is provided in accordance with State or Territory laws and that is provided to customers in a public place as defined in subclause 8B(2) will not be in breach of the Bill or the relevant State or Territory law.

 

The words ‘to the extent’ in subclause 8B(1) make it clear that interactive gambling services are only exempt from the offence provision of the Bill if they are provided wholly in a public place.

 

This will impact on the provision of gambling services through new interactive broadcasting services and wireless telecommunications services technology.  With such technology, the only way an interactive gambling service provider could be certain of avoiding a breach of the offence provision is for that provider to ensure that the means of accessing its gaming service is fixed in a public place.  An example of a gaming service that is fixed in a public place is a poker machine in a club or casino.

 

If a gambling service provider uses technology that cannot guarantee that the gaming service will not be accessed in non-public places then it risks breaching the offence provisions of the Bill.  This reflects the intention of the Bill to ensure that people do not have ready access to interactive gambling services in a private place such as their own home.

 

The definition of ‘excluded gaming services’ ensures that gaming services will not be offered in public places such as Internet cafes and shopping centres unless the relevant gambling service provider can ensure that the services can only be accessed in those places, and are provided in accordance with relevant State or Territory laws.  Therefore, an interactive gaming service that can be accessed in both an Internet cafe and a private home would result in the provider being in breach of the Bill, because the definition applies only to gaming services provided wholly in public places. 

 

If it were hypothetically possible to offer interactive gaming services that were only accessible in certain Internet cafes (or other ‘fixed’ public places) then those fixed places would need to meet the strict licensing requirements under the relevant State or Territory laws.

 

Prohibited Internet gambling content hosted outside Australia, which could be accessed in public places like Internet cafes, is subject to the complaints mechanism set out in Part 3 of the Bill.  Action can be taken by the Australian Broadcasting Authority in relation to such content under Division 3 of Part 3 of the Bill.

 

 

AMENDMENT (26)

 

Amendment (26) inserts a new clause 8C to define ‘designated broadcasting link’ and ‘designated datacasting link’.

 

For the purposes of new paragraph 8C(1)(a) of the Bill a gambling service has a ‘designated broadcasting link’ if either:



·          the service is expressly and exclusively associated with a particular program, or a particular series of programs, broadcast on a broadcasting service; or

·          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.

 

For the purposes of new paragraph 8C(1)(b) of the Bill a gambling service has a ‘designated broadcasting link’ if other conditions that are specified in the regulations have been satisfied.

 

For the purposes of new paragraph 8C(2)(a) of the Bill a gambling service has a ‘designated datacasting link’ if either:



·          the service is expressly and exclusively associated with a particular program, or a particular series of content, transmitted on a datacasting service; or

·          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.

 

For the purposes of new paragraph 8C(2)(b) a gambling service has a ‘designated datacasting link’ if other conditions that are specified in the regulations have been satisfied.

 

Subclause 8C(3) defines ‘content’ and ‘program’ for the purposes of new clause 8B.  ‘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 (BSA) but does not include advertising or sponsorship material. 

 

New clause 8C is intended to cover television game shows that involve an element of interactivity and include some form of entry fee such as a 1900 telephone call.  Examples of games on TV programs that include some element of interactivity and are intended to be covered by this exemption are ‘Classic Catches’ and programs like ‘Big Brother’ and ‘Video Hits’ that involve television viewers voting for prizes.  Clause 8B is also intended to cover promotions or games conducted on television or over the Internet that involve consideration including, for example, the purchase of a product.

 

Subparagraph 8C(1)(a)(i) is intended to cover services that are expressly and exclusively associated with a particular program.  This would include, for example, a viewer paying an entry fee and voting on the Internet for his or her favourite song where that song was played on a particular television program and the Internet entry was specifically linked to that program.  These services are intended to be exempt from the Bill.

 

Subparagraph 8C(1)(a)(ii) is intended to cover services that are have the sole purpose of promoting goods or services (other than gambling services) that are included in televised advertisements, and the services are associated with those advertisements.  Examples of such services include prize draws conducted through advertising campaigns.  Such a promotional service might require a person to purchase a soft drink, enter the barcode of that soft drink into an Internet-based draw, and possibly win a prize as the result of that draw.  These services are intended to be exempt from the Bill.

 

For subclause 8C(1), ‘broadcasting service’ has the same meaning as in the Broadcasting Services Act 1992 , as provided for in current clause 4 of the Bill, and includes television and radio services.

 

New subclause 8C(2) is intended to cover the same services covered by subclause 8C(1), but where those services are transmitted on a datacasting service.

 

For subclause 8C(2), ‘datacasting service’ has the same meaning as in the Broadcasting Services Act 1992 , as provided for in current clause 4 of the Bill.

 

Paragraphs 8C(1)(b) and 8C(2)(b) provide that in addition to the condition in paragraph (a) of each subclause being satisfied, a gambling service has a designated broadcasting or datacasting link if such other conditions (if any) as are specified in the regulations have been satisfied.  The effect of these paragraphs is to give the Minister a reserve power allowing him or her to impose further conditions on broadcasters and datacasters , though regulations, relating to the exemption for TV game shows and promotions.  This reserve power would allow the Minister to monitor the ongoing development of these services and ensure the proposed exemption will not be used as a platform for the significant extension of gambling in the home environment.

 

Clause 8C is not intended to cover interactive games such as trivia games and arcade games of skill that are or may become available through subscription-based broadcasting services, digital broadcasting services or datacasting services.  Such interactive games are generally regarded as games of skill for the purposes of the definition of ‘gambling service’ in clause 4 of the Bill.  Therefore, they are not intended to be covered by the Bill, whether a fee is charged to play such games and whether such games are played for prizes or not.  As a result, such games do not need to be exempted from the offence provision in clause 15 of the Bill.

 

The reference to a game of mixed chance and skill in the definition of ‘gambling service’ in clause 4 of the Bill is not intended to include games that would generally be regarded to be games of skill even though it could be argued that the outcome of those games might be affected by chance.  For example a trivia quiz game, available through interactive or subscription-based television services, that requires competitors to answer general knowledge questions will not be covered by the Bill as it does not involve mixed chance and skill.  It should be regarded as a game of skill.

 

Similarly an arcade-style game, available through interactive or subscription-based television services, should be regarded as a game of skill even though it could be argued that there is an element of chance in relation to playing the game.  Examples of these arcade-style games include Tetris, Space Invaders, Tomb Raider and Scrabble-type games.

 

Where such skill-based quiz or arcade-style games involve interactive ‘leaderboards’, which are lists of the top scoring players of the same game across the network or subscriber base, they should still be regarded as games of skill because a player’s overall skill in his or her performance will determine the position of that player on the leaderboard.

 

The effect of new clause 8C, in combination with paragraphs 5(3)(ac) and (ad) of the Bill, is that a gambling service that has a designated broadcasting link or a designated datacasting link is an excluded service for the purposes of the definition of an ‘interactive gambling service’.  Consequently it does not come within the offence provision in clause 15.  Similarly, paragraphs 6(3)(ac) and (ad) provide that an excluded gaming service does not come within the complaints system in relation to prohibited Internet content, set out in Part 3 of the Bill.

 

The operation of the exemption relating to television games and trade promotions will be reviewed by 1 July 2003, as provided for in Amendment (33) as described below.

 

 

AMENDMENT (27)

 

Amendment (27) inserts a new clause 8D to define ‘excluded lottery service’.

 

Subclause 8D(1) provides that an excluded lottery service is a service for the conduct of a lottery or a service for the supply of lottery tickets.  For clarification, the ordinary meaning of ‘lottery’ is relevant to clause 8D.  The ordinary meaning of lottery is discussed in the original Explanatory Memorandum in relation to clause 4 of the Bill.  It makes reference to the Macquarie Dictionary definition of ‘lottery’, which defines it as a ‘scheme or arrangement for raising money…by the sale of a large number of tickets, certain among which, as determined by chance after the sale, entitle the holders to prizes’.

 

The reference to ‘lottery’ in subclause 8D(1) is also intended to include reference to ‘lotto’.  ‘Lotto’ services include the sale of a large number of tickets or entries, certain among which, as determined by a chance event or draw after the sale, entitle the holders to prizes such as cash jackpots.  Examples of such lotto services that are intended to be covered by the reference to ‘lottery’ are Tattslotto, Oz Lotto, Super 66 and Powerball.  ‘Keno’ is also intended to be covered by the reference to ‘lottery’, but only when it is in the form of a lotto-based service as described above. 

 

Subclause 8D(2) provides that the definition of ‘excluded lottery service’ does not apply to an electronic form of scratch lottery of an electronic form of other instant lottery.  Traditional forms of scratch or other instant lotteries are lotteries where the result and any prize is predetermined at the time of purchase or entry, or is not subject to a separately scheduled drawing.  These are not covered by the Bill because they are non-electronic lotteries that involve a physical ticket that a customer scratches or otherwise uses. 

 

However, when scratch or other instant lotteries are in electronic form, they are not covered by the exclusion in subclause 8D(1) and are prohibited by operation of the offence in clause 15 of the Bill of providing an interactive gambling service.  Scratch or other instant lotteries in electronic form are lotteries where the result and prize is not determined by an independent or separate draw held some time after the time of purchase.  The result and prize may be determined by a separate or random electronic process, but that process occurs at a time instantaneous to the ‘scratching’ (or other form of playing or use) of the electronic lottery ticket, and is not subject to a separately scheduled drawing.  Therefore, it is a scratch or other instant lottery for the purposes of subclause 8D(2), and is not an ‘excluded lottery service’.

 

An examples of a prohibited electronic scratch or instant lottery is an ‘on-line’ scratch lottery ticket, which is provided to the customer in a virtual form after that customer accesses an ‘on-line scratchies’ Internet site.  After accessing an image of a ticket, the customer controls a cursor and ‘scratches’ away a covering picture on the ticket to reveal various figures representing amounts of money.  If the uncovered ticket reveals, for example, three matching figures, then the customer wins a specified amount of money.  This example is not an ‘excluded lottery service’ for the purposes of clause 8D.

 

The effect of new clause 8D, in combination with paragraph 5(3)(ab) of the Bill, is that an excluded lottery service is not an ‘interactive gambling service’.  Consequently it does not come within the offence provision in clause 15.  Similarly, paragraph 6(3)(ab) provides that an excluded lottery service does not come within the complaints system in relation to prohibited Internet content, set out in Part 3 of the Bill.

 

 

AMENDMENT (28)

 

Amendment (28) omits the words ‘Australian-based’ in the heading to Part 2 of the Bill so that it refers to an ‘Offence of providing an interactive gambling service to customers in Australia’.  This amendment is a consequence of the changes in Amendments (15) and (23).

 

 

AMENDMENT (29)

 

Amendment (29) omits the words ‘Australian-based’ in the heading to clause 15 of the Bill so that it refers to an ‘Offence of providing an interactive gambling service to customers in Australia’.

 

 

AMENDMENT (30)

 

Amendment (30) omits the words ‘Australian-based’ from the main offence provision in paragraph 15(1)(a).  The offence provision now provides that a person is guilty of an offence if the person intentionally provides an interactive gambling service and the service has an Australian-customer link.

 

 

AMENDMENT (31)

 

Amendment (31) inserts new subclauses (4) and (5) into the offence provision of providing an interactive gambling service to a customer in Australia.

 

Subclause 5(4) provides detail for the defence of reasonable diligence in current paragraph 15(3)(a) of the Bill.  Subclause 5(4) provides that in determining whether a person could, with reasonable diligence, have ascertained that the service had an Australian-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 physically present in Australia;

(b)    whether customers had entered a contractual relationship with the provider with an explicit condition that the customer was not to use the service while physically located in Australia;

(c)     whether the person providing the service required customers to provide personal details, and , if so, whether those details suggested that the customer was not physically present in Australia;

(d)    whether the person providing the service has network data that indicates that a customer was physically present outside Australia when the relevant customer account was opened and throughout the period when the services were provided to the customer; and

(e)     any other relevant matters.

 

An example for the matter provided for in paragraph 15(4)(a) is whether a customer was informed of the prohibition through a disclaimer message posted on a website that offers the service.

 

The matters outlined in paragraphs 15(4)(d) and (e) are intended to cover any new technology that allows interactive gambling service providers who are operating legally by providing their services wholly to customers outside Australia to determine that their customers are physically present outside Australia.  Paragraph 15(4)(e) is also intended to cover any other relevant matters not necessarily relating to technology.

 

Subclause 15(5) provides that section 15.4 of the Criminal Code applies to the offence in clause 15(1) of providing an interactive gambling service to a customer in Australia.  Section 15.4 of the Criminal Code , as set in the Criminal Code Act 1995 , relates to extended geographical jurisdiction and provides that if a law of the Commonwealth applies section 15.4 of the Code to a particular offence, the offence applies whether or not the conduct constituting the alleged offence occurs in Australia and whether or not a result of the conduct constituting the alleged offence occurs in Australia.

 

Subclause 15(5) ensures that the extraterritorial extension of the offence in clause 15 of the Bill is done within the framework of Commonwealth criminal law policy, as set out in the Criminal Code .

 

 

AMENDMENT (32)

 

Amendment (32) inserts a new Part 7A of the Bill to prohibit the advertising of interactive gambling services.

 

New Part 7A establishes a prohibition on both online and offline advertising of interactive gambling in Australia and the external territories.

 

The proposed prohibition in Part 7A is to apply to any person who publishes or broadcasts an advertisement in Australia for any interactive gambling service (whether or not the interactive gambling service has any Australian customers), subject to certain exceptions set out in Part 7A. 

 

The proposed prohibition does not extend to advertisements published in overseas media such as magazines published overseas or websites that are aimed at non-Australian audiences.

 

The prohibition extends to all forms of media, both electronic and non-electronic, including advertising via the Internet, broadcasting, print media, billboards and hoardings. 

 

The amendments are modelled broadly on the Tobacco Advertising Prohibition Act 1992 (the Tobacco Act).  The amendments include transitional provisions modelled on the equivalent provisions in the Tobacco Act to accommodate existing arrangements relating to the advertising of interactive gambling services.

 

There are two general offences:



·        an offence of broadcasting or datacasting an interactive gambling advertisement in Australia; and

·        an offence of publishing an interactive gambling advertisement in Australia. 

 

 

Division 1—Interpretation: definitions

 

Clause 61AA - Definitions

 

Clause 61AA sets out the key definitions used in Part 7A.  These definitions are discussed below.

 

Broadcast

 

The term ‘broadcast’ is defined to mean transmit by means of a broadcasting service, and is used in Division 4 of Part 7A, which sets out the prohibition of broadcasting or datacasting interactive gambling service advertisements in Australia.

 

Broadcasting service

 

‘Broadcasting service’ is given a different meaning in Part 7A to the remainder of the Act.  ‘Broadcasting service’ is defined to mean a service that delivers television programs or radio programs to persons having equipment appropriate for receiving that service, whether the delivery uses the radiofrequency spectrum, cable, optical fibre, satellite or any other means or a combination of those means, but does not include:

(a)     a datacasting service; or

(b)    Internet video and audio streaming. 

 

Paragraph (b) of the definition of ‘broadcasting service’ provides that Internet audio and video streaming are not a broadcasting service for the purposes of Part 7A of the Bill.  This is consistent with a Ministerial determination made under paragraph (c) of the definition of ‘broadcasting service’ in subsection 6(1) of the Broadcasting Services Act 1992 (the BSA) (Determination under paragraph (c) of the definition of ‘broadcasting service’ (No.1 of 2000)).  The determination made it clear that audio and video streaming over the Internet are not broadcasting services for the purposes of the BSA.

 

Broadcasting service bands

 

The term ‘broadcasting service bands’ has the same meaning as in the BSA.

 

Datacast

 

The term ‘datacast’ is defined to mean transmit by means of a datacasting service.  The phrase ‘datacasting service’ is defined in clause 4 of the Bill as introduced.  ‘Datacast’ is used in Division 4 of Part 7A, which sets out the prohibition of broadcasting or datacasting interactive gambling service advertisements in Australia.  ‘Datacasting service’ is already defined in clause 4 of the Bill and means in effect a datacasting service provided by a licensed datacaster.

 

Display

 

The term ‘display’ is defined to include continue to display.   ‘Display’ is used in new clause 61CA, which sets out the meaning of ‘publish’.

 

Exempt library

 

The phrase ‘exempt library’ is defined in to mean a public library, a library of a tertiary institution, or a library of an authority of the Commonwealth or of a State or Territory.  ‘Exempt library’ is used in new clause 61CE, which establishes an exception to the meaning of interactive gambling service advertisement in relation to ordinary activities of exempt libraries.

 

Government or political matters

 

The phrase ‘government or political matters’ is defined to mean government or political matters relating to any level of government in Australia, and includes:

(a)     matters relating to any election or appointment to public office; and

(b)    political views or public conduct relating to activities that have become the subject of political debate; and

(c)     the performance, conduct, capacity or fitness of a person elected, or seeking appointment, to any public office; and

(d)    the actions or policies of any government in Australia or any Australian political party.

 

This phrase is used in clause 61BB, which establishes the political communication exception to the meaning of interactive gambling service advertisement.

 

Interactive gambling service provider

 

The phrase ‘interactive gambling service provider’ is defined to mean a person who provides an interactive gambling service. 

 

The phrase ‘interactive gambling service’ is to have the same meaning as ‘interactive gambling service’ as defined in clause 5 of the Bill, without the requirement of an Australian provider link.  It is used in clauses 61BC, 61BD, 61BE and 61CD.

 

Periodical

 

The term periodical is defined to mean an issue of a newspaper, magazine, journal, newsletter, or other similar publication, issues of which are published at regular or irregular intervals.  The term is used in clause 61EB relating to periodicals distributed outside Australia.

 

Program

 

The term ‘program’ is taken to have the same meaning as in the BSA.   The BSA defines ‘program’ in section 6 to mean:

(a)     matter the primary purpose of which is to entertain, to educate or to inform an audience; or

(b)    advertising or sponsorship matter, whether or not of a commercial kind.

 

The term is used in clause 61CA, which provides the basic meaning of ‘publish an interactive gambling service advertisement’.

 

Public place

 

The phrase ‘public place’ is defined to mean a place, or 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, restaurant, hotel, cinema or club).  Clause 61AA also defines ‘section of the public’, as set out below.  The inclusion of a place accessible by only a section of the public in the definition of ‘public place’ is designed to allow ‘member’s only’ clubs to be covered. 

 

Publish

 

The term ‘publish’ is given a special meaning with respect to an interactive gambling service advertisement in Division 3 of Part 7A.  For matters other than interactive gambling service advertisements, ‘publish’ is to have a meaning equally as broad as it has in relation to interactive gambling service advertisements.  Further explanation of the definition of ‘publish’ in Division 3 is set out below.

 

Section of the public

 

The phrase ‘section of the public’ is defined to include members of a club, society or organisation, or a group consisting only of persons sharing a common workplace or common employer.  An example of a section of the public is the members of a sporting club.  The definition of ‘section of the public’ for the purposes of Part 7A differs from the definition of ‘section of the public’ set out in clause 8B of the Bill.  For the purposes of Part 7A it is defined more broadly to include persons with a common workplace.  This is to ensure the prohibition on advertising extends in its application to sections of the public in particular workplaces.  The term is used in clause 61CA in relation to the basic meaning of publish.

 

Workplace

 

The term ‘workplace’ is defined as a premises where contractors or

employees work, other than a premises that is primarily used as a private dwelling.  The term is used in the definition of ‘section of the public’.

 

 

Division 2—Interpretation: interactive gambling service advertisement

 

Clause 61BA - Basic meaning of interactive gambling service advertisement

 

Subclause 61BA(1) provides that for the purposes of Part 7A an ‘interactive gambling service advertisement’ is any writing, still or moving picture, sign, symbol or other visual image or audible message, or any combination of 2 or more of those things,  that gives publicity to or otherwise promotes or is intended to promote:

·          an interactive gambling service;

·          interactive gambling services in general;

·          the whole or part of a trademark or design in respect of an interactive gambling service, such as a domain name;

·          a domain name or URL that relates to an interactive gambling service; or

·          any other words that are closely associated with an interactive gambling service, whether also closely associated with other kinds of services or products.

 

In paragraph 61BA(1)(d), 'URL' has its ordinary meaning of 'uniform resource locator', which is the address of a document on the Internet.

 

‘Interactive gambling service advertisement’ is intended to cover more than just the promotion of an individual interactive gambling service.  For example, an advertisement that refers to a website where details of interactive gambling services can be found should be regarded as advertising for the purposes of Part 7A of the Bill. 

 

Further, the term is intended to cover both advertisements for particular interactive gambling sites, such as “IGSP.com.au”, as well as the advertising of particular interactive gambling services, such as online casinos. 

 

Clause 61BA has effect subject to exceptions set out in proposed clauses 61BB, 61BC, 61BD, 61BE, 61BF and 61BG.

 

Clause 61BB - Exception—political communication

 

Clause 61BB clarifies that interactive gambling service advertisements are permitted in the context of discourse on government and political matters, provided the advertisements do not promote interactive gambling services.

 

Subclause 61BB(1) provides that if an advertisement does not promote and is not intended to promote any particular interactive gambling service, and the advertisement relates solely to government or political matters, the advertisement is not an interactive gambling service advertisement for the purposes of Part 7A of the Bill.

 

Subclause 61BB(2) provides that the use in an advertisement of the whole name of an interactive gambling service provider does not itself constitute promotion of an interactive gambling service  or services for the purposes of paragraph 61BB(1)(a).

 

Subclause 61BB(3) provides that subclause (2) does not apply to the use of names referred to in that subclause in a way prohibited by regulations made for this subsection.  This is intended to prevent manipulation of the exemption set out in subclause 61BB(2).

 

Subclause 61BB(4) is a saving provision that provides that clause 61BA does not apply to the extent that it would infringe any doctrine of implied freedom of political communication.

 



Clause 61BC - Exception—Internet sites etc. and business documents

 

The exception in clause 61BC is intended to apply in a similar way to the exemption in subsection 9(2) of the Tobacco Act that allows words to appear on tobacco products and packaging. 

 

The exception in clause 61BC provides that the following material does not constitute an interactive gambling service advertisement:

 

(a)     words, signs or symbols that appear on the Internet site of an interactive gambling service that is provided to customers using an Internet carriage service or on or at an equivalent point of provision of any other interactive gambling service; or

(b)    words, signs or symbols that appear on business documents of interactive gambling service providers, whether or not the documents are in electronic form.  Business documents include an invoice, statement, order form, letterhead, business card, cheque, manual of other document ordinarily used in the course of business.

 

However, this does not prevent a still or moving screen shot of an Internet site or equivalent point of provision referred to in (a) from being an interactive gambling service advertisement.  Likewise, it does not prevent a still or moving picture or other visual image of business documents referred to in paragraph (b) from being an interactive gambling service advertisement.  The intention of this qualification is that the exception for the material mentioned in paragraphs (a) and (b) does not extend to the secondary transmission of that material.

 

The reference to 'an equivalent point of provision of any other interactive gambling service' in paragraph 61BC(a) is intended to include interactive gambling services provided via means other than the Internet.  This will include, for example, interactive gambling services provided through interactive television, through datacasting and through other interactive technologies.

 

Clause 61BD - Exception—premises of providers

 

The exemption in clause 61BD is intended to cover words, signs or symbols

appearing on land or buildings occupied by interactive gambling service providers.  As with the exception in clause 61BC, the exception for these words, signs and symbols does not extend to secondary transmission of those things.

 

Clause 61BE - Exception—management advertisements etc.

 

Clause 61BE is intended to remove any doubt as to whether or not certain things fall within the definition of interactive gambling service advertisement.  The clause provides that the following things are not to be considered interactive gambling service advertisements for the purposes of Part 7A of the Bill:

 

·          anything that is required to be done under Commonwealth, State or Territory laws;

·          an advertisement relating to the internal management of the business of an interactive gambling service provider, provided that the advertisement does not promote the interactive gambling service.  This could include, for example, as advertisement in a newspaper or on the Internet for staff or calling for tenders;

·          the taking of any action to prevent persons becoming victims of fraud or any other dishonest or unethical conduct.  This could include, for example, the publishing of a notice warning consumers of the fraudulent offering of services supposedly connected with the interactive gambling service provider who publishes the notice.

 

Clause 61BF - Exception—products or services having the same name as an interactive gambling service

 

Subclause 61BF(1) provides that an advertisement for a product that is not an interactive gambling service, but which by coincidence shares a name with an interactive gambling service or an interactive gambling service provider, does not constitute an advertisement for an interactive gambling service.

 

Paragraph 61BF(1)(b) provides that the exception in paragraph (1)(a) only applies if the manufacturer, distributor or retailer of the non-gambling product or the provider of the service is in on way associated with the interactive gambling service provider concerned.

 

Subclause 61BF(2) provides that two corporations that are related to each other are taken to be associated with each other for the purposes of subclause 61BF(1).

 

Subclause 61BF(3) states that for the purposes of subclause (2), the question of whether two corporations are related to each other will be determined in the same way that the question would be determined under the Corporations Law.

 

Clause 61BG - Exception—anti-gambling advertisements

 

Clause 61BG provides that something, such as an anti-gambling advertisement, that is clearly intended to discourage the use of interactive gambling services or particular kinds of gambling services is not to be considered to be a ‘interactive gambling service advertisement’ for the purposes of Part 7A of the Bill.

 

Clause 61BH - Definition

 

Clause 61BH states that for the purposes of Division 2 of Part 7A, ‘words’ includes abbreviations, initials and numbers.

 

 



Division 3—Interpretation: publication of interactive gambling service advertisement

 

Clause 61CA - Basic meaning of publish an interactive gambling service advertisement

 

Clause 61CA provides that for the purposes of new Part 7A a person publishes an interactive gambling site if the person does any of the following things:

 

·          includes the advertisement on an Internet site;

·          includes the advertisement in a document, including a newspaper, magazine, program, leaflet or ticket, that is available or distributed to the public;

·          includes the advertisement in a film, video, television program or radio program that is or is intended to be seen or heard by the public;

·          the person sells or hires the advertisement to the public, or offers it for sale, supply or hire to the public;

·          the person displays, screens or plays the advertisement so that it can be seen or heard in a public place, on public transport or in a workplace;

·          the person otherwise brings the advertisement to the notice of or disseminates the advertisement to the public by any means, including for example, by means of a film, video, computer disk or electronic medium.

 

For the above matters ‘the public’ includes a section of the public.  An advertisement includes something that contains the advertisement

 

Clause 61CA has effect subject to exceptions set out in proposed clauses 61CB, 61CC, 61CD, 61CE and 61CF.

 

Clause 61CB - Publish does not include broadcast or datacast

 

Clause 61CB excludes the broadcasting or datacasting of an interactive gambling service advertisement from the definition of ‘publish an interactive gambling service advertisement’.  This is to avoid overlap between publishing and broadcasting or datacasting, which are addressed separately in Part 7A.

 

Clause 61CC - Exception—trade communications

 

Clause 61CC excludes from the definition of ‘publish’ the communication of information within the interactive gambling service industry to people who are all involved in the interactive gambling service industry.

 

Therefore, publishing an interactive gambling service advertisement in a trade journal that goes only to people in the interactive gambling service industry would not be ‘publishing an interactive gambling service advertisement for the purposes of Part 7A.  However, if this journal containing interactive gambling service advertisement was also available to the public or to people whose only involvement in the industry is as consumers, then the publishing would be considered ‘publishing an interactive gambling service advertisement’.

 



Clause 61CD - Exception—advertisements in telephone directories

 

Subclause 61CD(1) provides that the publishing of the name of an interactive gambling service provider in a telephone directory does not amount to the publication of an interactive gambling service advertisement.

 

However, subclause (2) provides that subclause (1) does not apply if the publication is on the Internet and the entry for the provider contains a link to an Internet site for the provider that relates to an interactive gambling service.  Therefore, for example, a listing in an on-line White Pages for an interactive gambling service provider that contains a link to that provider’s Internet site will not come within the exception in this clause. 

 

An example of an acceptable listing for the purposes of subclause (1) would be a listing on an Internet directory site that simply provides information relating to an interactive gambling service provider’s business address and telephone number, and does not provide any link whatsoever to an interactive gambling service site.

 

Clause 61CE - Exception—ordinary activities of exempt libraries

 

Clause 61CE excludes from the definition of ‘publish an interactive gambling service advertisement’ anything done on behalf of an ‘exempt library’ for the normal practices of that library.

 

Clause 61CF - Exception—acknowledgments of assistance or support

 

Clause 61CF excludes from the definition of ‘publish an interactive gambling service advertisement’ limited recognition of a sponsorship or some other arrangement of assistance or support.  However, such recognition must comply with relevant regulations made for the purposes of this provision in order to qualify with this exception.

 

 

Division 4—Broadcasting or datacasting of interactive gambling service advertisements in Australia

 

Clause 61DA - Interactive gambling service advertisements not to be broadcast or datacast in Australia

 

Subclause 61DA(1) provides that a person is guilty of an offence if:

 

·          the person broadcasts or datacasts an interactive gambling service advertisement in Australia; and

·          the broadcast or datacast is not permitted by section 61DB, which relates to  accidental or incidental broadcasts; and

·          the broadcast or datacast is not permitted by section 61DC, which relates to the broadcast or datacast of advertisements during flights of aircraft.

 



Subclause 61DA(2) provides that a person is guilty of an offence if:

 

·          the person authorises or causes an interactive gambling service advertisement to be broadcast or datacast in Australia; and

·          the broadcast or datacast is not permitted by section 61DB; and

·          the broadcast or datacast is not permitted by section 61DC.

 

The penalty for the offences in subclauses 61DA(1) and (2) is 120 penalty units.  A penalty unit is currently $110, so the current maximum penalty for an individual is $13,200.  Under subsection 4B(3) of the Crimes Act 1914, if a body corporate is convicted of an offence against a Commonwealth law, the Court may impose a penalty of up to 5 times the amount of the maximum penalty that could be imposed on a natural person.  As a result, the current maximum penalty that could be imposed on a corporation is $66,000.

 

The offences in clause 61DA do not specify fault elements, in line with Commonwealth criminal law policy.  In place of specified fault elements, section 5.6 of the Criminal Code applies to the offences in clause 61DA. 

 

Section 5.6(1) of the Criminal Code provides that if a fault element for a physical element consists only of conduct, intention is the fault element for that physical element. Section 5.6(2) provides that if a fault element for a physical element consists of a circumstance or a result, recklessness is the fault element for that physical element.

 

This ensures that the appropriate fault element of intention applies to the physical element of conduct in the offences in clause 61DA, and the fault element of recklessness applies to the physical element of circumstance or result in the offence.

 

Clause 61DB - Accidental or incidental broadcast or datacast permitted

 

Clause 61DB permits an interactive gambling service advertisement that is broadcast or datacast as an accidental or incidental accompaniment to other matter provided the broadcaster or datacaster does not receive any benefit additional to the benefit they receive for broadcasting the other matter.  The benefit need not be financial.

 

This will permit broadcasters and datacasters to include incidental material that is technically advertising in their broadcasts or datacasts.  For example, this would permit the broadcast of an international sporting event at an overseas venue where an interactive gambling service advertisement might be permitted.  If however, the broadcaster receives some benefit for the interactive gambling service advertisement, additional to the benefit arising from broadcasting the sporting event, the interactive gambling service advertisement would not be permitted under this clause.

 

Subclause 61DB(2) provides that subsection (1) only has effect for the purposes of Part 7A.

 



Clause 61DC - Broadcast or datacast of advertisements during flights of aircraft

 

Subclause 61DC(1) permits the publication of advertisements for interactive gambling services in an aircraft during a flight of the aircraft, provided the flight does not commence and terminate within Australia.  The effect of this provision is to permit the advertising of interactive gambling services on international flights.  Such advertisements are not permitted on domestic flights, which are flights starting at a place in Australia and terminating within Australia.

 

For example, an advertisement for interactive gambling services on a flight departing from Japan and arriving in England would not be covered.  Neither would an advertisement on a flight from Paris to Australia.  However, an advertisement for an interactive gambling service on a flight from Sydney to Perth would be prohibited as the flight begins and ends within Australia.

 

Subclause 61DC (2) provides that each sector of a flight of an aircraft is to be taken to be a separate flight.  This covers flights with various stops between the departure point and the eventual destination.  For example, a flight might commence in Sydney, stop in Perth, and continue on to London.  The flight from Sydney to Perth, and the flight from Perth to London, are treated as separate flights for the purposes of subclause (2).  As a result, an interactive gambling advertisement broadcast during the flight from Sydney to Perth would be prohibited, but if the advertisement was broadcast during the flight from Perth to London, the advertisement would be permitted.

 

Subclause 61DC(3) provides that subsection (1) only has effect for the purposes of Part 7A.

 

 

Division 5—Publication of interactive gambling service advertisements

in Australia

 

Clause 61EA - Interactive gambling service advertisements not to be published in Australia

 

Clause 61EA prohibits the publication of advertisements for interactive gambling services in Australia.

 

Subclause 61EA(1) provides that a person is guilty of an offence if:

 

·          the person publishes an interactive gambling service advertisement in Australia; and

·          the publication is not permitted by section 61EB, which relates to periodicals distributed outside Australia; and

·          the publication is not permitted by section 61EC, which relates to Australian sporting and cultural events of international significance; and

·          the publication is not permitted by section 61ED, which relates to accidental or incidental publication; and

·          the publication is not permitted by section 61EE, which relates to publications by persons not receiving any benefit; and

·          the publication is not permitted by section 61EF, which relates to publication of advertisements during flights of aircraft.

 

Subclause 61EA(2) provides that a person is guilty of an offence if:

 

·          the person authorises or causes an interactive gambling service advertisement to be published in Australia; and

·          the publication is not permitted by section 61EB; and

·          the publication is not permitted by section 61EC; and

·          the publication is not permitted by section 61ED; and

·          the publication is not permitted by section 61EE; and

·          the publication is not permitted by section 61EF.

 

The penalty for the offences in subclauses 61EA(1) and (2) is 120 penalty units.  A penalty unit is currently $110, so the current maximum penalty for an individual is $13,200.  Under subsection 4B(3) of the Crimes Act 1914, if a body corporate is convicted of an offence against a Commonwealth law, the Court may impose a penalty of up to 5 times the amount of the maximum penalty that could be imposed on a natural person.  As a result, the current maximum penalty that could be imposed on a corporation is $66,000.

 

As discussed above in relation to the offences in clause 61DA, the offences in clause 61EA also do not specify fault elements.  In place of specified fault elements, section 5.6 of the Criminal Code therefore applies to the offences in clause 61EA. 

 

This ensures that the appropriate fault element of intention applies to the physical element of conduct in the offences in clause 61EA, and the fault element of recklessness applies to the physical element of circumstance or result in the offence.

 

Subclause 61EA(3) sets out the circumstances where an interactive gambling service advertisement published on an Internet site will be considered to have been published in Australia.  Publication will be taken to have occurred in Australia if two conditions are satisfied.  First, the site must be accessible for users in Australia.  Second, the content and marketing of the site must indicate that the majority of users accessing the site are physically present in Australia. 

 

An example for the first condition, as set out in paragraph 61EA(3)(a), is a site that does not block users from registering with the site if they supply an Australian address.  An example for the second condition, as set out in paragraph 61EA(3)(b), is a site that contains reports of events occurring in Australia, results of sporting matches held in Australia, reports from Australian stock markets and Australian weather reports.  A site that had an international focus with little or no mention of matters specific to Australia would not be a site for the purposes of paragraph (3)(b).  ‘Time.com’ and ‘CNN.com’ are examples of international Internet sites that would not come within paragraph (3)(b). 

 



Clause 61EB - Periodicals distributed outside Australia—acts of publication permitted

 

Subclause 61EB(1) permits interactive gambling service advertisements to be published in any magazine, newspaper, journal or similar document that is not principally intended for the Australian market.  Therefore, for example, such documents can be printed in Australia but only where those documents are not principally intended for the Australian market and are thus mostly distributed outside Australia.

 

Advertisements for interactive gambling services would not be permitted in the Australian edition of a periodical.  Likewise, it would not be permitted in a periodical which has more than 50 percent of its readership in Australia, which is an example of a periodical that is ‘principally intended for the Australian market’.

 

Subclause 61EB(2) provides that subclause (1) only has effect for the purposes of Part 7A of the Bill. 

 

Clause 61EC - Australian sporting and cultural events of international significance—acts of publication permitted

 

Clause 61EC permits the publication of interactive gambling service advertisements in association with specified sporting or cultural events, subject to conditions.  Clause 61EC is modelled on section 18 of the Tobacco Act, which permits publication of tobacco advertising in similar circumstances.  The advertising prohibition in new Part 7A of the Bill is modelled substantially on the Tobacco Act prohibition, and the intention is to provide similar exemptions for sporting and cultural events as are available in the Tobacco Act.

 

Subclause 61EC(1) provides that a person may publish an interactive gambling service advertisements if:

 

·          the advertisement is published in connection with a sporting or cultural event held or to be held in Australia; and

·          the event is specified in a notice in force under subclause (2); and

·          the publication of the advertisement complies with any conditions specified in the notice in accordance with subclause (3).

 

Subclause 61EC(2) provides that for the purposes of subclause (1) the Minister may by notice published in the Gazette specify a sporting or cultural event to be held in Australia only if:

 

·          the Minister is satisfied the event is to be completed before 1 October 2003; and

·          if the event is to be held on or after 1 October 2001, a similar event held before that date was specified in a notice under this subclause and no application to have another similar event specified in a notice under this subclause has been rejected since the earlier event; and

·          the Minister is satisfied, having regard to the guidelines in force under subclause (5) that the event is of international significance and failure to specify the event would be likely to result in the event not being held in Australia.

 

Clause 61FB, set out below, provides for the making of applications to have events specified in notices under subclause (2).

 

Subclause (3) provides that in a notice under subclause (2) specifying an event, the Minister may impose conditions on the interactive gambling service advertising permitted at a specified sporting or cultural event.  The Minister is to have regard to any guidelines in force under subclause (5) when imposing conditions relating to the content, number and method of publication of the advertisements that may be published under this provision.

 

Subclause (4) provides that a notice under subclause (2) comes into force on the day it is published in the Gazette or on a later day specified in the notice.   A notice stops being in force (unless it is revoked earlier) at the end of 3 years after it came into force, or if an earlier day is specified in the notice, on that earlier day.

 

Subclause (5) provides that the Minister may determine guidelines for the purposes of subclauses (2) and (3).  These guidelines must be made in writing.

 

Subclause (6) provides that the guidelines are a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .  Accordingly, the guidelines will be required to be notified in the Gazette , tabled in the Parliament and will be subject to Parliamentary disallowance.

 

Subclause (7) limits the application of subclause (1) to Part 7A only.

 

Clause 61ED - Accidental or incidental publication permitted

 

Subclause 61ED(1) permits advertisements for gambling services where the advertisement was published accidentally, or where the advertisement was an incidental accompaniment to another matter.   For the advertisement to be permitted, the publisher must not receive any benefit, either financial or other, in addition to the benefit received for the publication of the other matter.

 

This clause permits publishers to include incidental material in their publications which is technically interactive gambling advertising, provided they receive no benefit for including such material.  For example, reporting on a specified sporting or cultural event sponsored by an interactive gambling service provider would not breach Part 7A unless the publisher received some benefit for the interactive gambling advertising.

 

Subclause (2) provides that subclause (1) only applies to Part 7A of the Bill.

 

Clause 61EE - Publication by person not receiving any benefit permitted

 

Subclause 61EE(1) permits the publication of an interactive gambling service by a person if that person:



·          is not publishing the advertisement in the course of providing interactive gambling services;

·          is publishing the advertisement on his or her own initiative; and

·          is not receiving any direct or indirect benefit, whether financial or not, for the publication.

 

This clause is intended to make it clear that a person is not covered by the prohibition on advertising interactive gambling services where that person is not deriving any kind of benefit from the advertising.  Examples of interactive gambling advertising which are permitted under this provision include:



·          wearing items of clothing with the names of interactive gambling service providers on those items;

·          listing interactive gambling service providers on Internet search engines; and

·          providing links on personal homepages to interactive gambling Internet sites. 

 

The intention of this clause is to permit such activities as long as the publication is not in the course of the provision of interactive gambling services, the person publishes the advertisement at his or her own initiative, and no benefits are received by the person for the publication of the advertisement.

 

Subclause (2) provides that subclause (1) only applies for the purposes of Part 7A.

 

Clause 61EF - Publication of advertisements during flights of aircraft

 

Subclause 61EF(1) permits the publication of advertisements for interactive gambling services in an aircraft during a flight of the aircraft, provided the flight does not commence and terminate within Australia. 

 

This permitted activity is discussed in more detail above in relation to clause 61DC, which permits the broadcasting or datacasting of advertisements during aircraft flights.

 

Clause 61EG - Defence—advertising under existing contracts or arrangements

 

Subclause 61EG(1) provides for a temporary defence from the publishing prohibition for persons publishing interactive gambling service advertisements arising from a sponsorship contract or other legally enforceable arrangement already entered into before the commencement of the Bill.  The advertisement may not be published (including displayed) after 30 June 2003. 

 

In order to qualify for this defence, each party to the contract or arrangement must have notified the Minister, before the advertisement was published, of the specifics of the advertisements which are to be published and the date of the contract or arrangement out of which the advertisement arises.  For example, the parties should notify the Minister of the location, size and content of the advertisements.

 

The contract or arrangement may be altered without affecting the defence provided that the advertising arose from legally enforceable obligations under the original contract or arrangement.  Furthermore, the advertising may be continued past the original termination date of the contract or arrangement.

 

For the defence in clause 61EG, the defendant bears an evidential burden in relation to the matters set out in subclause (1). 

 

An evidential burden requires the defendant to adduce evidence that suggests a real possibility that the matter exists or does not exist (subsection 13.3 of the Criminal Code ).  This means that the defendant must adduce or point to evidence that establishes that the requirements in paragraphs 61EG(1)(a) to (d) were all met in relation to the publication of the relevant interactive gambling service advertisement.

If the defendant can do this then the prosecution would then need to disprove that those requirements were met by the defendant (subsection 13.1(2) of the Code). 

 

Placing an evidential burden on the defendant is consistent with the Criminal Code (see subsection 13.3 of the Code).

 

Subclause 61EG(2) provides that, should this defence apply to advertising published as a result of a particular sponsorship contract or arrangement, then the defence would also apply to other persons involved in the publishing of the interactive gambling advertising.

 

Clause 61EH - Defence—display of signs before 1 July 2003

 

Subclause 61EH(1) provides a temporary defence from the publishing prohibition for persons publishing an interactive gambling advertisement on a billboard, illuminated sign or other outdoor sign.  The advertisement may not be published (including displayed) after 30 June 2003 or an earlier date if specified in any regulation made pursuant to this provision and must arise from a contract or arrangement entered into before the commencement of this Bill. 

 

For the defence in clause 61EH, the defendant bears an evidential burden in relation to the matters set out in subclause (1).  The effect of an evidential burden is explained above in relation to the defence in clause 61EG.

 

Subclause (2) provides that regulations are to be made which specify the permitted circumstances for the display of signs, the size and composition of the signs, and the final date that the signs may be used to publish interactive gambling advertisements.

 

Subclause (3) ensures that this defence applies also to persons who publish an interactive gambling service advertisement using an electronic sign.  This subclause defines the terms ‘interactive gambling service advertising sign’ and ‘sign’ which fall within this provision.

 

 

Division 6—Miscellaneous

 

Clause 61FA - Failure to broadcast, datacast or publish advertisement not actionable if this Part would be contravened

 

Subclause 61FA(1) provides that if a person refuses or fails to broadcast, datacast or publish an interactive gambling advertisement in compliance with the prohibition contained in Part 7A of this Bill, no legal action can be taken against that person for not engaging in that prohibited conduct.

 

Clause 61FB - Applications for the purposes of section 61CC

 

Subclause 61FB (1) provides that a person may apply to the Minister for a

specification under subclause 61EC(2) in relation to an event of international significance.

 

Subclause (2) provides that applications under this provision must be in writing and must set out the grounds on which the applicant thinks the Minister should grant it.

 

Subclause (3) provides that the Minister may ask the applicant to provide further information to enable the Minister to decide on an application.

 

Subclause (4) provides that the Minister must make a decision regarding an application within 60 days, subject to subclauses (5) to (7).

 

Subclause (5) provides that the Minister may extend the period for deciding an application by up to 60 days if the Minister thinks that it will take longer to decide an application.

 

Subclause (6) requires the giving of notice in writing to the applicant where the Minister has decided to extend the period for deciding an application.

 

Subclause (7) requires the Minister to decide the application within any extended period.

 

Subclause (8) provides that if the Minister has not reached a decision on the application before the end of the day by which the Minister is obliged to decide it, then it is to be taken that the Minister has refused the application under clause 61EC.

 

Subclause (9) makes it clause that the Minister is able to make decisions in respect of matters under subclause 61EC without an application being made pursuant to this provision.

 

Clause 61FC - Review of decisions

 

Subclause 61FC(1) provides that decisions concerning events of international significance (subclauses 61EC(2) and 61EC(3)) are to be reviewable by the Tribunal.

 

Subclause (2) defines the term “Tribunal” as meaning:

 

·          before the commencement of Parts 4 to 10 of the Administrative Review Tribunal Act 2001 —the Administrative Appeals Tribunal; and

·          after the commencement of Parts 4 to 10 of the Administrative Review Tribunal Act 2001 —the Administrative Review Tribunal.

 



Clause 61FD - Additional conditions for licences under the Broadcasting Services Act 1992

 

Clause 61FD sets out further conditions which apply to licences granted under the provisions of the Broadcasting Services Act 1992 (BSA).  Subclause (1) provides that all commercial television broadcasting licences are subject to the condition that the licensee does not broadcast an interactive gambling service advertisement in breach of Part 7A of the Bill.

 

Subclause (2) provides that all commercial radio broadcasting licences are subject to the condition that the licensee does not broadcast an interactive gambling service advertisement in breach of Part 7A of the Bill.

 

Subclause (3) provides that all community broadcasting licences are subject to the condition that the licensee does not broadcast an interactive gambling service advertisement in breach of Part 7A of the Bill.

 

Subclause (4) provides that all subscription television broadcasting licences are subject to the condition that the licensee does not broadcast an interactive gambling service advertisement in breach of Part 7A of the Bill.

 

Subclause (5) provides that all persons providing broadcasting services under a class licence must not broadcast an interactive gambling service advertisement in breach of Part 7A of the Bill.

 

Subclause (6) provides that all datacasting licences are subject to the condition that the licensee does not broadcast an interactive gambling service advertisement in breach of Part 7A of the Bill.

 

Subclause (7) defines the terms “class licence”, “commercial radio broadcasting licence”, “commercial television broadcasting licence”, “community broadcasting licence” and “subscription television broadcasting licence”.  All terms in subclause (7) have the same meaning as in the BSA.

 

The licence conditions imposed under this clause are additional conditions for those licences under the BSA and are enforceable under provisions of the BSA that deal generally with breaches of licence conditions. 

 

Where a licensee breaches the condition that interactive gambling service advertisements are not to be broadcast, the Australian Broadcasting Authority (ABA) may take action against the licensee under Division 3 of Part 10 of the BSA. 

 

Broadcasting an interactive gambling service advertisement in contravention of a commercial television broadcasting licence, a commercial radio licence, a community broadcasting licence, or a subscription television broadcasting licence may be an offence under sections 139 or 140 of the BSA.  Further, the ABA may issue a notice to the licensee to cease broadcasting in contravention of the licence under section 141, and a breach of a notice issued by the ABA will be an offence under section 142.  The ABA may suspend or cancel a licence under section 143 for breach of a licence condition or breach of a notice issued by the ABA.  Thus, the ABA may take action under these provisions of the BSA where a licensee breaches a licence condition created under subclauses 61FD(1), (2), (3) or (4) of the Bill.

 

Under s144 of the BSA, the ABA may seek a Federal Court order against a class licensee to cease broadcasting where the class licensee breaches a condition attached to the class licence.  Thus, where a class licensee broadcasts an interactive gambling service advertisement in contravention of subclause 61FD(5) of the Bill, the ABA may seek a Federal Court order under section 144 of the BSA to prevent the continued broadcasting of that advertisement by the class licensee.

 

Breaches of datacasting licence conditions are dealt with under Part 8 of Division 1 of Schedule 6 to the BSA.  A breach of a datacasting licence condition may result in an offence under clause 52 of Schedule 6 to the BSA.  Under subclause 53(1) of the BSA the ABA may direct a licensee not to breach a licence condition, and a failure to comply with a notice issued by the ABA may be an offence under subclause 53(4).  The ABA may also suspend or cancel a datacasting licence under clause 54 of the BSA if the licensee fails to comply with a direction of the ABA or breaches a licence condition.  In addition, clause 55 grants the ABA the power to apply to the Federal Court for an injunction to prevent a breach of a licence condition.  These provisions provide the mechanisms for enforcing subclause 61FD(6) of the Bill and provide remedies to prevent datacasters from datacasting interactive gambling services advertisements.

 

Clause 61FE - Reports to Parliament

 

Subclause 61FE(1) provides that as soon as practicable after each 31 December, the Minister must cause a report to be prepared on:

 

·          the number and nature of any contraventions of Part 7A of the Bill occurring in the preceding 12 months; and

·          any action taken by the Minister or a Commonwealth agency in response to each contravention.

 

Subclause (2) provides that the person who prepares the report must give a copy to the Minister.

 

Subclause (3) requires the Minister to lay copies of the report before each House of Parliament within 15 sitting days of that House after receiving it.

 

The reporting requirement will ensure that the operation of the prohibition on interactive gambling service advertisements is monitored for its efficacy in limiting the take-up by Australians of new and potentially addictive forms of interactive gambling services.

 

 

AMENDMENT (33)

 

Amendment (33) inserts a new clause 67A into Part 8 of the Bill.  New clause 67A requires the Minister to conduct a review before 1 July 2003 of the operation of the exemptions of the following services from the offence provision in clause 15 and the complaints system in Part 3 of the Bill:

 

·          a service with a designated broadcasting link; and

·          a service with a designated datacasting link.

 

These services are described in detail above in relation to Amendment (26).  The intention of the review is to address the possible expansion over the next few years of interactive TV games and promotions.  Such an expansion may lead to adverse social consequences even though such services may not be ‘gambling’ in the usually understood sense.