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Gambling Harm Reduction (Protecting Problem Gamblers and Other Measures) Bill 2014

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2013-2014

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

Gambling Harm Reduction (Protecting Problem Gamblers and Other Measures) Bill 2014

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

Circulated by authority of

Andrew Wilkie MP



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Gambling Harm Reduction (Protecting Problem Gamblers and Other Measures) Bill 2014

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

 
   Overview of the Bill 
 
    
 
  This Bill details a regulatory framework for the operation of poker machines in Australia. It also regulates some related activities that facilitate the operation of poker machines. Primary reforms include mandatory precommitment enabled on all machines in Australia, limits to the maximum bets per play and the jackpots available, restrictions on ATM withdrawals from within poker machine venues, and require poker machines to disallow a standing credit of more than $20 at any time. 
 
    
 
  The Bill is substantially similar in parts to Bills introduced in the Senate previously, and also echoes and strengthens the National Gambling Reform Bill 2012, which introduced voluntary precommitment and limits to ATM withdrawals but to a lesser extent than the mandatory requirements contained in this Bill. This Bill closely follows Productivity Commission recommendations relating to regulatory gambling reform. 
 
    
 
   Human rights implications 
 
    
 
  This Bill does not engage any of the applicable rights or freedoms. It creates regulatory requirements and does not impact ultimately on consumer choice. It also seeks to protect individuals through providing them with the systems that enable them to make choices in their best interests. 
 
    
 
   Conclusion 
 
    

This Bill is compatible with human rights as it does not raise any human rights issues.

 

 

Mr Andrew Wilkie MP, Member for Denison

Gambling Harm Reduction (Protecting Problem Gamblers and Other Measures) Bill 2014

 

Notes on Clauses

Part 1 - Preliminary

Clause 1: Short Title

1.     This clause is a formal provision and specifies the short title of the Bill, once enacted, as the Gambling Harm Reduction (Protecting Problem Gamblers and Other Measures) Bill 2014.

Clause 2: Commencement

2.     This clause provides for the commencement of the Act on the day of Royal Assent.

 Clause 3: Object of the Act

3.     This clause states that the object of the Act is to limit the harm poker machines cause to problem gamblers by limiting the rate of losses occurring during their operation.

Clause 4: Application of Act

4.     This clause allows for the Act to extend to the external Territories.

Clause 5: Relationship with State and Territory law

5.     This clause specifies that this Act is not intended to exclude or limit the concurrent operation of any law of a State or Territory, to the extent that the law is capable of operating concurrently with this Act. So in the event that a State or Territory wants to place additional restrictions on the use of poker machines, that is possible provided the additional measures are not contradictory to a requirement in this Bill.

 Clause 6: Definitions

6.     This clause sets out the definitions of terms within this Act including a definition for ATM which includes EPTPOS transactions, which is relevant to clause 32.

Clause 7: Constitutional limitations

7.     This clause clarifies that this Act must not infringe particular sections of the Constitution relating to discrimination against and preference to one State or Territory over another.

Part 2 - Restrictions on the operation of poker machines

Clause 8: Management and utilisation of poker machines

8.     This clause outlines the timeline for when corporations must comply with other parts of the Bill. All machines that are sold or leased must be operationally ready to comply with all parts of the Bill by 31 December 2015 and must be actually compliant by 31 December 2019 to allow for the poker machine suppliers to continue operating before the venues themselves have to be compliant. The venues themselves must be compliant by 31 December 2019 (for venues with over 5 poker machines) and 31 December 2021 for the smaller venues. The clause also provides that persons connected to a contravention of these provisions may be subject to pecuniary civil penalties. The operation and effect of these penalties are detailed in other parts of the Bill.

 

Clause 9: Regulation of parameters of practical operation of poker machines

9.     This clause sets five requirements on poker machines that must be complied with by the dates established in clause 7. All poker machines must only accept banknotes of a denomination of $20 or less. Further, no poker machine shall accept additional credits that push the total standing credit over $20. The maximum bet must be $1 per spin. No poker machines shall have a jackpot or linked-jackpot greater than $500. Finally, all machines must be fitted with operational mandatory precommitment capabilities as outlined by other parts of this Bill.

Clause 10: Variation of parameters of practical operation of poker machines

10. This clause specifies that the parameters in clause 9 apart from mandatory precommitment may be reduced through regulations.

Part 3 - Implementation of mandatory precommitment capabilities

Clause 11: Poker machines to be capable of precommitment

11. This clause specifies that all poker machines must be fitted with operational precommitment capabilities that meet the requirements detailed in Part 3 and are enabled through a system that has been approved by clause 25.

Clause 12: Mandatory registration process for users

12. This clause mandates the registration of all poker machine users who must specify a loss limit and a limit period (both of which are subject to qualifications in other sections of Part 3). The system must provide the user with confirmation of the loss limit they have set, when the limit period commences, and that the subsequent limit period commences immediately after the preceding one. The exact form in which the information is to be communicated can be prescribed by regulations.

Clause 13: Identification requirements during registration

13. This clause specifies the identification requirements for a precommitment system, specifying what may and may not be attached to a user’s account. Photographs and signatures may be used but biometric information may not. The type of information may be altered by regulations provided it does not include material specifically precluded by this clause.

Clause 14: Self exclusion from poker machines—setting a loss limit of $0

14. This clause removes doubt that a person may set a loss limit of $0 and the act of setting that limit results in self exclusion as they are unable to place any bets.

Clause 15: Requirements for limit periods

15. This clause sets the requirements for limit periods, primarily that the length of the period shall not be less than 24 hours, and States and Territories may allow users to set their own limit periods provided they are no less than 24 hours. Upon registration, the first limit period will commence and every subsequent limit will commence immediately after the end of the previous limit.

Clause 16: Changing loss limits and limit periods after initial registration

16.  This clause specifies that users must be allowed to change their loss limit and limit period, in the case of the latter only provided it is no less than 24 hours in accordance with clause 15.

Clause 17: When changes to loss limits or limit periods may take effect

17. This clause outlines the time that changes to a loss limit or limit period apply at the end of the current period in terms of loosening a limit, or immediately upon change in terms of tightening a limit.

Clause 18: Identification of registered user

18. This clause requires users to identify themselves to the precommitment system before they are able to use the poker machine. It also includes safeguards by precluding the use of biometric information.

Clause 19: Monitoring and transmitting expenditure and winnings

19. This clause requires the precommitment system to monitor and record all the play information, including all money spent and all money won (including credit), during the session of play, and then transmit that information as directed by the regulations. If a session of play spans over two or more limit periods then the information must be monitored in total and as discrete amounts for each limit period.

Clause 20: Precommitment information for registered user

20. This clause outlines what information must be provided to users upon commencement of play. Information such as the limit period, the loss limit and time remaining on the limit period must be displayed. There is the option to provide additional information such as the length of time since the person last set the loss limit or limit period and anything else prescribed by regulations. The system must also inform the player of the amount remaining on the loss limit and limit period during play.

Clause 21: No use of poker machine after loss limit reached

21. This clause is the operative clause stating that players will be unable to continue play once the loss limit is reached within the limit period. This must take effect immediately once the limit is reached.

Clause 22: Capability requirement for precommitment systems

22. This clause specifies that, for players who have not registered, the precommitment system must be able to prevent non-registered players from using the poker machine.

Clause 23: Transaction statement for registered user

23. This clause requires that the precommitment system must, on request of the person, provide a transaction statement on that person’s play statistics including the loss limit, the total amount spent and won on the poker machines in that State or Territory over the past 12 months and the current limit period, and the number of times in the past 12 months that the person was prevented from playing due to the loss limit being reached. The venue/owner may not charge the person for the provision of the transaction statement.

Clause 24: Additional requirements for precommitment systems

24. This clause states that the regulations may prescribe additional requirements of precommitment systems.

Clause 25: Approving precommitment systems and variations to approved terms and conditions

25. This clause provides the detail for the approval of precommitment systems by the Regulator, provided they satisfy the Regulator and meet certain requirements, and give the Regulator power to refuse to approve a precommitment system despite its compliance with all technical requirements if it is contrary to the object of the Act. The Regulator is deemed to have approved the terms and conditions on which the precommitment system is to be provided if the system itself is approved. Variation to the approval may be made by the Regulator in writing.

Clause 26: Notification of approvals

26. This clause provides that the Regulator must provide copies of the approvals to the applicant as soon as practicable, including the approved terms and conditions. This process must be completed where there is a variation of the terms or conditions. Approvals have effect for 10 years unless revoked earlier.

Clause 27: Changes to precommitment requirements

27. This clause clarifies that any change to the requirements in Part 3 apply to all precommitment systems including those already approved.

Clause 28: Revocation of approvals

28. This clause provides the Regulator with the power to revoke an approval if it ceases to comply with the requirements in Part 3, is regardless contrary to the object of the Act or is being provided on terms and conditions other than the approved terms and conditions.

Clause 29: Reviewable decisions before the AAT

29. This clause establishes that exemption decisions made by the Regulator in relation to approvals under this Part are reviewable, upon application, by the Administrative Appeals Tribunal.

Part 4 - ATM withdrawal limit for poker machine premises

Clause 30: ATM withdrawal limit for poker machine premises

30. This clause requires that automatic teller machines (defined in clause 6) at poker machine premises prevent people from withdrawing more than $250 in a 24 period. States and Territories may still place further restrictions on ATMs at poker machine premises such as a total prohibition.

Clause 31: Indexation

31. This clause allows the regulations to specify an index and adjustment rate for the cash limit and the manner in which an indexation increase is to be changed.

Clause 32: Anti-avoidance—determination of poker machine premises

32. This clause grants the Regulator power to make a determination that a person has provided an automatic teller machine in a manner intended to avoid the operation of this Part or Part 3, and that avoidance was the sole or dominant reason for the automatic teller machine being supplied. The Regulator may also determine that a premises is to be classified as a poker machine premises. Such a determinations is not a legislative instrument.

Clause 33: Exemptions from the operation of Part 4

33. This clause grants the Regulator broad powers to exempt venues from the operation of clause 30. These exemptions can be contained in the regulations, granted on application from the occupier of a poker machine premises, be subject to conditions, and have the conditions varied or revoked. Exemptions are not legislative instruments.

Clause 34: Reviewable decisions before the AAT

34. This clause establishes that exemption decisions made by the Regulator in relation to defining premises and granting exemptions under this Part are reviewable, upon application, by the Administrative Appeals Tribunal.

Part 5 - The Regulator

Clause 35: The Regulator

35. This clause provides that the Regulator is the Secretary of the Department.

Clause 36: Functions of the Regulator

36. This clause explains that the Regulator has responsibility for a range of functions, including administration, monitoring and enforcement of compliance, and evaluating the operation of the new Act. The Regulator is required to cooperate with the States and Territories and other relevant persons in administering the new Act.

Clause 37: Powers of the Regulator

37. This clause provides that the Regulator has a range of powers to do all things necessary or convenient to be done in connection with their functions.

Clause 38: Regulator may charge for services

38. This clause grants the Regulator the power to specify fees for services provided in the performance of their functions. Such a specification is a legislative instrument. Sections 17 to 19 of the Legislative Instruments Act 2003 address rule-maker consultation, including the circumstances in which consultation may be unnecessary or inappropriate. The Legislative Instruments Act 2003 does not make consultation mandatory. However, all Commonwealth agencies are encouraged to undertake appropriate consultation before making a legislative instrument, particularly if the proposed instrument is likely to affect business or restrict competition. A fee specified for services by the Regulator must not amount to taxation.

Clause 39: Arrangements with other agencies

39. This clause provides that the Regulator may make arrangements with other agencies to assist in the performance of the Regulator’s functions, duties, or exercising of their powers.

Clause 40: Consultants

40. This clause provides that the Regulator may engage consultants to assist in performing the Regulator’s functions.

Clause 41: Minister may give directions to the Regulator

41. This clause outlines that the Minister may give directions to the Regulator in relation to the performance of their functions and exercise of their powers. Such a direction is a legislative instrument. However, the Minister must not give a direction in relation to a particular case. The Regulator must comply with a direction given under this clause.

Clause 42: Annual report

42. This clause provides that the Regulator must prepare an annual report, which must be included in the Department’s annual report. The clause provides a non-exhaustive list of the information that must be included in the annual report.

Part 6 - Civil Penalties

Clause 43: Pecuniary penalties for contravention of civil penalty provisions

43. This clause outlines the process by which the pecuniary penalties for a breach of the civil penalty provisions are applied. The Minister can apply to the Federal Court for an order for a pecuniary penalty within 6 years of a contravention and, if satisfied that a person has contravened a civil penalty provision, the Court may order the person to pay to the Commonwealth such pecuniary penalty. The Court must have regard to all relevant matters when determining the penalty, including the circumstances of the contravention, the loss or damage, past conduct or proceedings and the general effect of poker machines. Where two or fewer machines are affected, the penalty is not to exceed 500 penalty units for each machine affected, or 2000 penalty units in the case of three or more affected machines. A failure to comply with more than one provision constitutes more than one contravention of a civil penalty provision, even if that contravention relates to the same conduct, and each machine affected and day during which the contravention continues are separate contraventions but the total penalty is limited.

Clause 44: Contravening a civil penalty provision is not an offence

44. This clause states that a contravention of a civil penalty provision is not an offence.

Clause 45: Recovery of a pecuniary penalty

45. This clause provides that the Federal Court ordering a person to pay a pecuniary penalty may be enforced as if it were a judgment of the Court by the Commonwealth, the party to which the penalty is payable.

Part 7 - Minimum uniform national standards and national monitoring network

Clause 46: Minimum uniform national standards and national monitoring network

46. This clause provides that the Minister must take all reasonable steps to implement uniform national standards for poker machines in relation to harm minimisation, with particular reference to maximum losses. In implementing these standards, the Minister must consult with COAG and the Ministerial Council on Gambling, and that this consultation must begin within 90 days of the Act receiving Royal Assent. These national standards must be in place and take effect from 1 January 2019. This clause also provides for a national monitoring network for poker machines to be established.

Part 8 - Miscellaneous

Clause 47: Regulations

47. This clause provides that t he Governor-General may make regulations prescribing matters relating to the Act.