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Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017



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BILLS DIGEST NO. 99, 2017-18 3 MAY 2018

Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017 Er-Kai Wang Consultant

Michele Brennan Law and Bills Digest Section

This Digest was published after the Bill had passed the Parliament

Contents

Purpose of the Bill ............................................................... 3

Background ......................................................................... 3

Broadcast and Content Reform Package ................................. 3

Current regulation of gambling advertising ............................ 4

Committee consideration .................................................... 4

Senate Environment and Communications Legislation Committee ............................................................................... 4

Senate Standing Committee for the Scrutiny of Bills .............. 5

Broad delegation of administrative powers .......................... 5

Limitation on merits review .................................................. 5

Broad delegation of legislative power................................... 6

Policy position of non-government parties/independents ..... 7

Nick Xenophon Team (NXT)................................................... 8

Position of major interest groups ......................................... 8

Anti-gambling organisations and children’s advocates ........... 8

Victorian Inter-Church Gambling Taskforce, Victorian Local Governance Association and Alliance for Gambling Reform (submission 2) .......................................... 8

Victorian Responsible Gambling Foundation (VRGF) (submission 5) ....................................................................... 9

Australian Council on Children and the Media (ACCM) (submission 8) ....................................................................... 9

Date introduced: 6 December 2017

House: Senate

Portfolio: Communications and the Arts

Commencement: The day after Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at

May 2018.

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UNICEF Australia (submission 13) ......................................... 9

Flinders Centre for Gambling Research (FCGR) (submission 14) ..................................................................... 9

The gambling industry ........................................................... 10

Tabcorp (submission 1) ....................................................... 10

Responsible Wagering Australia (RWA) (submission 10) .... 10

Sporting organisations ........................................................... 10

Coalition of Major Professional and Participation Sports Inc. (COMPPS) (submission 3) ............................................. 10

Media organisations .............................................................. 11

Australian Subscription Television and Radio Association (ASTRA) (submission 4) .................................... 11

Communications Alliance Ltd (CAL) (submission 6) ............ 11

Commercial Radio Australia (CRA) (submission 7) .............. 12

Special Broadcasting Service (SBS) (submission 9) .............. 12

Free TV Australia Limited (Free TV) (submission 11) .......... 12

Digital Industry Group Incorporated (DiGi) (submission 12)........................................................................................ 12

Financial implications ........................................................ 13

Statement of Compatibility with Human Rights .................. 13

Parliamentary Joint Committee on Human Rights ................ 13

Key issues and provisions................................................... 13

Broadcasting restrictions ..................................................... 13

Online content restrictions .................................................... 13

Impact on advertising revenue and value of sports rights .... 14

Rules are to be in a legislative instrument ............................ 14

Limitation on merits review .................................................. 15

Definitions ............................................................................. 15

What can be covered by the rules? ..................................... 15

Gambling promotional content ........................................... 15

Online content service ........................................................ 15

In conjunction with live coverage of a sporting event ........ 17

Exemptions ............................................................................ 18

Compliance and enforcement ............................................... 19

Appendix A ....................................................................... 21

Appendix B ........................................................................ 23

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Purpose of the Bill The Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017 (the Bill) is part of the Government’s Broadcast and Content Reform Package announced in May 2017.1

The Bill seeks to amend the Broadcasting Services Act 1992 (BSA) to create a regulatory framework which can be used by the Australian Communications and Media Authority (ACMA) to impose gambling promotion restrictions on online content service providers. It also empowers the ACMA (if directed by the Minister) to determine program standards about gambling promotional content which apply to certain broadcasters and subscription providers. Consequential amendments are made to the Australian Communications and Media Authority Act 2005 (the ACMA Act) and the Enhancing Online Safety Act 2015.

As explained in further detail below, the Government intends that most gambling promotions will be prohibited from five minutes before the scheduled start of live coverage of a sporting event until five minutes after the conclusion of the sporting event, where the event occurs between 5am and 8.30pm.2 Stricter rules apply to commentator betting odds promotions and representative venue-based promotions, which will be prohibited from 30 minutes before the scheduled start of live coverage of a sporting event until 30 minutes after the conclusion of the sporting event, where the event occurs between 5am and 8.30pm.3 The advertising prohibitions will be imposed on broadcasters through amendments to broadcasting codes of practice4 and on online content service providers through rules to be made by ACMA under proposed Schedule 8 to the BSA, inserted by item 22 of the Bill. The Bill provides a framework through which gambling advertising restrictions can be imposed, rather than imposing such restrictions directly.

Background Broadcast and Content Reform Package The Government announced its Broadcast and Content Reform Package (Reform Package) in May 2017.5 One of the objectives of the Reform Package was to protect children from exposure to gambling promotion during live sports programs. The Minister for Communications, Senator Mitch Fifield described the proposed further restrictions on gambling advertising as providing ‘a community dividend’.6 Other goals set in the Reform Package include improving the sustainability of Australia’s free-to-air broadcasting sector and supporting the creation of high quality Australian content.7 Other aspects of the Reform Package will be implemented by the Broadcasting Legislation Amendment (Broadcasting Reform) Act 2017 and the Commercial Broadcasting (Tax) Act 2017, which introduce significant changes to media regulation in Australia, including abolishing the ’75 per cent audience reach rule’ and the ‘two out of three cross-media control rule’. These Acts also amended the anti-siphoning scheme, abolished broadcasting licence fees and introduced a new interim transmitter licence tax.8

ACMA will be provided with $50 million funding between 2018-19 and 2020-21 to implement the Reform Package.9

1. M Fifield (Minister for Communications and the Arts), Major reforms to support Australian broadcasters, media release, 6 May 2017; Department of Communications and the Arts (DCA), ‘Broadcast and Content Reform Package’, DCA website. 2. Explanatory Memorandum, Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017, p. 2. 3. Ibid. A commentator betting odds promotion is the provision of betting odds (however described) by a commentator (clause 2 of proposed

Schedule 8 of the BSA, at item 22 of the Bill). A representative venue-based promotion is gambling promotional content that consists of visual images (including animated images) or speech of a representative of a gambling service provider that gives the impression that the representative is at, or around, the venue of a sporting event (clause 2 of proposed Schedule 8 of the BSA). 4. Australian Communications and Media Authority (ACMA), ‘New gambling advertising rules during live sports’, ACMA website. Note that item 13 of the Bill would allow the Minister to direct the ACMA to determine a gambling promotion program standard if the industry did not amend the broadcasting codes to provide gambling advertising restrictions in relation to live sporting events that the Government considered sufficient. The broadcasting codes have been amended in this regard, with effect from 30 March 2018. See Appendix A of this Digest for details. 5. M Fifield (Minister for Communications and the Arts), Major reforms to support Australian broadcasters, op. cit. 6. Ibid.

7. Ibid., See also: Department of Communications and the Arts (DCA), ‘Broadcast and Content Reform Package’, DCA website. 8. For more information see: R Jolly, Broadcasting Legislation Amendment (Broadcasting Reform) Bill 2017, Bills digest, 8, 2017-18, 8 August 2017; Parliament of Australia, ‘Broadcasting Legislation Amendment (Broadcasting Reform) Bill 2017 homepage’, Australian Parliament website; M Biddington and R Jolly, Commercial Broadcasting (Tax) Bill 2017, Bills digest, 4, 2017-18, 7 August 2017 and Parliament of

Australia, ‘Commercial Broadcasting (Tax) Bill 2017 homepage’, Australian Parliament website. 9. Australian Government, Portfolio additional estimates statements 2017-18; Communications and the Arts Portfolio, pp. 48-49.

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Current regulation of gambling advertising Advertisement of gambling services, online or otherwise, is currently regulated by federal, state and territory laws as well as the broadcast industry codes of practice and the self-regulatory framework for advertising established by the Australian Association of National Advertisers.10

The Interactive Gambling Act 2001 (IGA) regulates the provision of ‘interactive gambling services’.11 It prohibits the publication of certain interactive gambling service advertisement to Australians.12 On 13 September 2017, major amendments to the IGA came into effect.13 The amendments, among other things, aimed at reducing the provision of illegal online gambling services to Australians through stronger enforcement and disruption measures. In particular, the amended IGA extended the advertising prohibition to unlicensed regulated interactive gambling services in Australia.14

The ACMA can investigate complaints in relation to broadcasting and datacasting services as well as advertising of gambling services.15

State and territory gambling regulations, consumer protection and fair trading laws regulate gambling services and advertisement of gambling.16 The state and territory laws relating to gambling control primarily focus on racing, poker machines and casinos. Queensland, the ACT, Victoria and the Northern Territory are the only jurisdictions that have legislation that specifically addresses interactive gambling.17

Committee consideration Senate Environment and Communications Legislation Committee On 7 December 2017 the Senate referred the Bill to the Senate Environment and Communications Legislation Committee for inquiry.18 The Committee reported on 12 February 2018 and the majority of the Committee recommended that the Bill be passed.19 The Australian Greens issued a dissenting report arguing that the Bill ‘is welcome, but incomplete’ and that it:

…does not, in its current form, provide adequate safeguards against regulatory bypass and thus leaves open the opportunity for some broadcasters to enjoy monopoly rights to promote gambling content in contradiction with community expectations and expert advice on harm minimisation…

The Bill should not proceed in its current form until such opportunity is closed through amendment. 20

Labor Senators issued additional comments, which are discussed below.

The Committee received fourteen submissions.21 The views of submitters are discussed below.

10. Appendix A provides a list of industry codes of practice. The Australian Association of National Advertisers (AANA)’s Code of Ethics came into effect in January 2012 and is part of its advertising and marketing self-regulation. The Code applies to all advertising and marketing communications and requires the advertisers to comply with the AANA Code for Marketing & Advertising Communications to Children.

11. Section 5 of the IGA defines a ‘prohibited interactive gambling service’ as a gambling service where: (a) the service is provided in the course of carrying out a business; and (b) the service is provided to customers using an internet carriage service or any other listed carriage service, a broadcasting service, any other content service or a datacasting service. However this provision allows a range of exclusions such as a telephone betting service or a wholesale gambling service.

12. Part 7A of the IGA. 13. These amendments were contained in the Interactive Gambling Amendment Act 2017. 14. For more information see R Jolly, Interactive Gambling Amendment Bill 2016, Bills digest, 50, 2016-17, Parliamentary Library, Canberra, 2016. 15. See section 10(1)(m) of the Australian Communications and Media Authority Act 2005 (ACMA Act) and Part 2, 2A and 7A of the IGA. 16. See Appendix B which outlines some of the key legislation in each state and territory, as well as the regulators. 17. Queensland and the ACT have stand-alone interactive gambling legislation. In Victoria and the NT provisions dealing with interactive gambling

are included in general gambling legislation. See Appendix B for details. 18. Senate Standing Committee for Selection of Bills, Report, 15, 2017, The Senate, Canberra, 7 December 2017. 19. Senate Environment and Communications Legislation Committee, Communications Legislation Amendment (Online Content Services and

Other Measures) Bill 2017—Report, The Senate, Canberra, 12 February 2018. 20. Ibid., p. 29. 21. Senate Environment and Communications Legislation Committee, Submissions, Inquiry into the Communications Legislation Amendment

(Online Content Services and Other Measures) Bill 2017, The Senate, Canberra, 2018.

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Senate Standing Committee for the Scrutiny of Bills The Senate Standing Committee for the Scrutiny of Bills (Scrutiny Committee) raised a number of concerns with the Bill, as set out below.22

Broad delegation of administrative powers Section 51 of the ACMA Act provides ACMA with a broad delegation power, under which any or all of ACMA’s functions and powers may be delegated to ACMA staff and members, other than those set out under section 53. Section 53, as currently relevant, provides that various licensing powers under the BSA (including the power to cancel or suspend licences, or impose, vary or revoke a licence condition) are not able to be delegated. Paragraph 53(2)(k) currently provides that the power to ‘issue, or extend the time for compliance with, a notice’ under the BSA (other than a notice under Part 9C of the BSA, which deals with access to commercial television broadcasting services provided with the use of a satellite) is not able to be delegated. Item 2 of the Bill will amend paragraph 53(2)(k) of the ACMA Act to exclude notices under, or relating to, Schedule 8 of the BSA from the reach of paragraph 53(2)(k), in the same way as notices under Part 9C of the BSA. (Schedule 8 of the BSA will be inserted by item 22 of the Bill and will allow ACMA to make online content service provider rules). The result is that ACMA will be able to delegate, under section 51 of the ACMA Act, the power to issue a notice under Schedule 8 of the BSA, or any other notice under the BSA that relates to Schedule 8. The power to extend time for compliance with such a notice will also be able to be delegated to any ACMA staff member.

The Committee drew attention to its ongoing concern with legislation that allows the delegation of administrative powers to a broad class of persons and stated its preference that ‘delegates be confined to the holders of nominated offices or to members of the Senior Executive Service [SES]’.23

The Committee asked the Minister to provide more detailed justification for the amendment to paragraph 53(2)(k) of the ACMA Act and suggested that it may be appropriate to amend the Bill to limit the delegation of the ability to issue, and extend time for compliance with, notices under Schedule 8 of the BSA to persons who hold special attributes, qualifications or qualities.24

The Minister responded to the Committee’s comments on 21 February 2018.25 The Minister advised the Committee that the ability to delegate the power to issue notices under Schedule 8 of the BSA will provide ‘greater flexibility and efficiency in the day to day administration of the proposed online content service provider rules’.26 The Minister also stated that although the proposed approach would allow delegation to members of staff below the SES level ‘this does not necessarily mean that the ACMA would exercise the power in such a way’.27

The Committee responded that it ‘has not generally accepted a desire for administrative flexibility or efficiency as sufficient justification for the broad delegation of administrative powers at any level’ and reiterated its view that it would be appropriate to amend the Bill to restrict the range of people to whom powers may be delegated.28

Limitation on merits review The Committee is concerned that the Bill would empower the ACMA, under legislative instruments, to not only set gambling promotion program standards and make online content provides rules; but also determine which of its decisions under those standards and rules are subject to merits review by the Administrative Appeals Tribunal (AAT).29 No limitation is set by the Bill as to the ACMA’s power to determine which (or what kind) of its decisions under those instruments will be merits reviewable, nor does the Bill set out any matters or considerations that ACMA must take into account when making such a decision.

22. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 1, 2018, The Senate, Canberra, 7 February 2018, p. 8. 23. Ibid., p. 9. 24. Ibid., pp. 9-10. 25. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 3, 2018, The Senate, Canberra, 21 March 2018, p. 80. 26. Ibid., p. 82. 27. Ibid.

28. Ibid., p. 83. 29. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 1, 2018, op. cit., p. 10. See section 204 of the BSA and item 15 of the Bill.

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The Committee asked the Minister to provide more detailed justification for this approach. It also sought the Minister’s advice on whether it might be appropriate to amend the Bill to prescribe classes of decision that must be subject to review, or matters that ACMA must take into account before determining whether a particular decision will be reviewable.30

The Minister’s response advised the Committee:

As neither the content of any gambling promotion program standard nor the online content service provider rules is yet known, it is not possible to identify particular types of decisions of an administrative character that might be made by the ACMA under those instruments. 31

The Minister noted that, as legislative instruments, the gambling promotion program standards and online content provider rules will be subject to Parliamentary scrutiny and disallowance.32

In response, the Committee acknowledged:

… the difficulty in identifying the relevant decisions that could be made under rules that are yet to be made. However, it remains unclear to the committee why the Bill could not be amended to prescribe general matters that the ACMA must take into account before determining whether a particular decision, or class of decisions, will be subject to merits review, or otherwise to provide (at least high-level) guidance for the making of such a determination.

33

Broad delegation of legislative power Item 22 of the Bill will insert proposed Schedule 8 into the BSA, under which ACMA will be empowered to make online content service provider rules. Subclause 13(1) of proposed Schedule 8 would allow those rules to make provision for or in relation to prohibiting or regulating gambling promotional content provided on online content services in conjunction with live coverage of a sporting event. Proposed subclause 13(2) provides that the rules may require online content service providers to ensure that explanatory content relating to the application of the rules is made available in certain circumstances.

Clauses 15 and 16 of proposed Schedule 8 provide that ACMA may determine that an online content service or service provider, or a class of services or providers is not subject to rules made for the purposes of subclauses 13(1) or (2) or specified aspects of those rules. Clause 15 specifies matters that ACMA must consider in deciding whether to make a determination under that provision. Clause 16 does not set out relevant considerations. A determination under clause 15 that exempts an individual service or service provider would not be a legislative instrument and will not be subject to parliamentary scrutiny or disallowance (proposed subclause 15(14)). A determination under clause 16 that exempts a class of services or service providers would be a legislative instrument and therefore subject to parliamentary scrutiny and disallowance.

The Committee sought ‘detailed justification’ from the Minister for the breadth of ACMA’s proposed powers under clauses 15 and 16 of proposed Schedule 8, including ‘examples of when it is envisaged that such powers would be exercised’.34 The Committee also asked the Minister to consider whether the Bill should be amended so that clause 16 of proposed Schedule 8 provides guidance on relevant considerations when making a determination, as is the case with clause 15.35

The Minister advised that flexibility was required due to the rapidly evolving nature of the online content sector and the diversity of businesses within that sector. As an example of when it might be appropriate to exempt a service from the rules, the Minister referred to:

30. Ibid., p. 11. 31. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 3, 2018, op. cit., p. 85. 32. Ibid., p. 86. 33. Ibid.

34. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 1, 2018, op. cit., p. 13. 35. Ibid.

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…instances where children are unable to access the content provided by a particular online content service (and so there is minimal risk a child would be exposed to gambling promotional content provided on the online content service). 36

The Minister did not consider it appropriate to amend clause 16 of proposed Schedule 8 of the BSA to insert guidance on the exercise of ACMA’s powers under that provision and felt that the scrutiny to which decisions under clause 16 would be exposed by virtue of being disallowable legislative instruments is a sufficient check on ACMA’s powers.37

In response the Committee asked that the key information provided in the Minister’s response be incorporated into the Explanatory Memorandum to the Bill.38

Policy position of non-government parties/independents Australian Labor Party

The ALP supported the Bill as ‘a step in the right direction’ but expressed concern that it:

…may not go far enough to address community concerns because it continues to permit gambling ads during live sport, on the SBS, on commercial and subscription broadcasting and online at times when children may still be watching sport. 39

Labor Senators on the Environment and Communications Legislation Committee did not dissent from the Committee’s recommendation that the Bill be supported, but made additional comments in the Committee report, criticising the Government for a perceived delay in introducing the legislation.40 Labor Senators were also sympathetic to concerns raised by SBS that the regulation of SBS programming by means other than the SBS Code of Practice would be contrary to the statutory independence of SBS.41 Reflecting this concern, Labor proposed an amendment to the Bill in the Senate, which would have removed SBS from the regulatory regime to be established by the Bill.42 The proposed amendment was not supported by the Senate.43

Australian Greens

As set out above, Greens Senators on the Environment and Communications Legislation Committee dissented from the Committee’s recommendation supporting the Bill and considered that the Bill should not proceed in its current form.44

In debate on the Bill in the Senate, the Greens proposed amendments to the Bill, including extending the timeframe during which gambling advertisements would be prohibited to 30 minutes before the start and after the conclusion of a relevant sporting event (rather than five minutes before and after, as proposed in the Bill) and ensuring that gambling promotion program standards and online content service provider rules cannot

36. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 3, 2018, op. cit., p. 88. 37. Ibid,

38. Ibid., p. 89. 39. T Butler, ‘Second reading speech: Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017’, House of Representatives, Debates, 28 March 2018, p. 3182. 40. Senate Environment and Communications Legislation Committee, Communications Legislation Amendment (Online Content Services and

Other Measures) Bill 2017—Report, op. cit., p. 27. 41. Ibid., p. 28. 42. D O’Neill, ‘Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017 - amendments to be moved by

Senator O'Neil on behalf of the Opposition’, Senate, sheet 8380, 19 March 2018; D O’Neill, ‘Second reading speech: Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017’, Senate, Debates, 26 March 2018, p. 2151-4. 43. Australia, Senate, ‘Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017’, Journals, 93, 2016-18, 27 March 2018, pp. 2936-42. 44. Senate Environment and Communications Legislation Committee, Communications Legislation Amendment (Online Content Services and

Other Measures) Bill 2017—Report, op. cit., p. 29.

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exempt broadcasters or providers based on audience share or the number of end users.45 The proposed amendments were not supported by the Senate.46

Nick Xenophon Team (NXT) The Nick Xenophon Team (NXT) supported the Bill, but felt that it ‘does not go far enough’.47 Accordingly, Senator Stirling Griff moved amendments to the Bill to:

…include a prohibition on all gambling ads during the hours of 5 am to 8.30 pm during G-rated programs and any sporting event on TV, radio or online, regardless whether the event is live or not. In instances where a sporting event has started but not finished before 8.30 pm, the NXT amendments will also extend the prohibition of gambling ads to 30 minutes after the conclusion of the sporting event.

The proposed amendments were not supported by the Senate.48

Position of major interest groups Anti-gambling organisations and children’s advocates

Victorian Inter-Church Gambling Taskforce, Victorian Local Governance Association and Alliance for Gambling Reform (submission 2) In their joint submission, these three organisations advocate for simple legislation that bans gambling advertising altogether.49 The submission supports the Bill, but argues it would benefit from the following amendments:

• Rather than compliance and enforcement being complaint driven, as proposed in the Bill, relevant media outlets and service providers should be required to submit their gambling promotional material and plans to the ACMA prior to the actual advertising activity taking place. This may prevent breaches of the rules from occurring in the first place.50

• The organisations would prefer that exemptions from the online content service provider rules (under clauses 15 and 16 of proposed Schedule 8 of the BSA, at item 22 of the Bill) should not be available.51 If the exemptions are to remain, the organisations consider that economic benefits to the service provider should not be grounds for exemptions and ACMA should be required to also consider the likelihood of an exemption causing harm and the number of children who are likely to be exposed to the gambling promotion as a result of the exemption.52

• The period when restrictions on gambling promotional content apply should be extended. It should start when the broadcast of the sporting event starts and end when the entire event broadcast ends (that is, it should apply to any pre- or post-game broadcast rather than merely the game or match itself).53

45. S Hanson-Young, ‘Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017 - amendments to be moved by the Australian Greens’, Senate, sheet 8367, 15 March 2018; S Hanson-Young, ‘Second reading speech: Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017’, Senate, Debates, 26 March 2018, p. 2159.

46. Australia, Senate, ‘Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017’, Journals, 93, 2016-18, 27 March 2018, pp. 2936-42. 47. S Griff, ‘Second reading speech: Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017’, Senate, Debates, 26 March 2018, p. 2156; S Griff, ‘Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017 -

amendments to be moved by Senator Griff on behalf of the Nick Xenophon Team’, Senate, sheet 8395, 19 March 2018. 48. Australia, Senate, ‘Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017’, Journals, 93, 2016-18, 27 March 2018, pp. 2936-42. 49. Victorian Inter-Church Gambling Taskforce, Victorian Local Governance Association and Alliance for Gambling Reform, Submission to Senate

Environment and Communications Legislation Committee, Inquiry into the Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017, 12 January 2018, p. 1. 50. Ibid., pp. 2 and 4. 51. Ibid., p. 5. 52. Ibid.

53. Ibid.

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Victorian Responsible Gambling Foundation (VRGF) (submission 5) The Victorian Responsible Gambling Foundation is a statutory authority accountable to the Victorian Parliament. It is governed by a board that is accountable to the Minister for Consumer Affairs, Gaming and Liquor Regulation. Its mission is on gambling harm prevention and support.54

The Foundation’s submission supports the gambling promotional restrictions proposed in the Bill.55 It recommended that the restrictions be widened in terms of time zones so that they are adequate to protect all children. In other words, the restrictions should be in place from 5am AEST/AEDT to 8.30pm WAST.56

The Foundation further recommends that start and finishing time restrictions should be five minutes before the cross to the ground or event venue and five minutes after all players have left the ground or playing area.57

Australian Council on Children and the Media (ACCM) (submission 8) ACCM is the peak not-for-profit community organisation that provides support to families, industry and decision makers in building and maintaining a media environment that fosters the health, safety and well-being of Australian children.58

To the ACCM, the Bill will create obstacles to the effective regulation of gambling promotion, such as the requirement that ACMA may only make a gambling promotion program standard if directed by the Minister.59

ACCM also argues that the 8.30pm cut-off time is unrealistic as it assumes that children would not be watching television or accessing the internet after that time.60

UNICEF Australia (submission 13) UNICEF Australia considers that the approach taken in the Bill is not sufficiently strict and recommends a comprehensive prohibition on relevant gambling advertising, contained in legislation.61 It recommends, among other things, that Option 6 as explained in the Regulation Impact Statement (RIS) for the Bill be adopted.62 This option proposes comprehensive prohibition of gambling promotion across all platforms between 5am and 8.30pm every day.63

Flinders Centre for Gambling Research (FCGR) (submission 14) FCGR conducts studies into the health, social, economic and political impact of gambling on society including the community, families and individuals.64 In its submission, FCGR agrees with concerns raised in other submissions of the need for a ministerial direction to trigger the process of determining program standards and considered instead that ACMA ‘should be required, under legislation, to determine a standard on gambling advertising, consistent with current requirements for children’s television content’.65 FCGR expressed particular concern at ASTRA’s suggestion that fantasy sports be excluded from the advertising restrictions, arguing that:

• fantasy sports share the same psychological mechanisms involved in more traditional wagering products, such as intermittent reinforcement

54. Victorian Responsible Gambling Foundation (VRGF), ‘Who we are’, VRGF website. 55. Victorian Responsible Gambling Foundation, Submission to Senate Environment and Communications Legislation Committee, Inquiry into the Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017, 12 January 2018, p. 1. 56. Ibid., p. 4. 57. Ibid.

58. Australian Council on Children and the Media (ACCM), Submission to Senate Environment and Communications Legislation Committee, Inquiry into the Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017, January 2018, p. 1. 59. Ibid., p. 2. See item 13 of the Bill. 60. Ibid., pp. 7-8. 61. UNICEF Australia, Submission to Senate Environment and Communications Legislation Committee, Inquiry into the Communications

Legislation Amendment (Online Content Services and Other Measures) Bill 2017, 15 January 2018, p. 1. 62. Ibid., p. 4. 63. The RIS is contained in the Explanatory Memorandum to the Bill. See Explanatory Memorandum, Communications Legislation Amendment

(Online Content Services and Other Measures) Bill 2017, p. 15. 64. Flinders Centre for Gambling Research, Submission to Senate Environment and Communications Legislation Committee, Inquiry into the Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017, 12 January 2018, p. 1. 65. Ibid., p. 2.

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• many fantasy sports platforms are associated with large corporations that provide traditional forms of gambling, which allow them to promote their products across the fantasy sports sites and

• there is a growing trend for gambling corporations to seek association with fantasy sports platforms and young people involved in fantasy sports are at risk of being exposed to an increasing amount of gambling promotional material.66

The gambling industry

Tabcorp (submission 1) In its brief submission, Tabcorp supports the principle of the Bill but raises concerns that it may provide an avenue for the granting of a class exemption for synthetic lotteries. Tabcorp explains that synthetic lotteries are bets on the outcomes of overseas lotteries, rather than government-regulated lottery draws.67

Responsible Wagering Australia (RWA) (submission 10) RWA is a peak body representing the interest of Australia’s online wagering industry. Its members include some of the largest online gambling companies, such as Ladbrokes and Bet365. RWA supports the Bill but recommends the following amendments:

• for consolidation of responsibility purposes, the Department of Communications be given the role of considering and granting exemptions, instead of ACMA

• online wagering industry providers should be given an exemption as they are required to age gate their services and verify the identity of their customers and

• a clear commencement date for the restrictions. Although the Minister for Communications has given an indication that the restrictions will apply from March 2018, the Bill empowers the ACMA to determine its own timeframes.68

Sporting organisations

Coalition of Major Professional and Participation Sports Inc. (COMPPS) (submission 3) As reported by the ABC, Australia’s major sporting codes have opposed the proposed restrictions on gambling promotional content during live broadcast of sporting events. 69 The codes have argued that restrictions will diminish the value of the television rights their codes attract.

According to the ABC, the National Rugby League (NRL) has a commercial deal with Sportsbet worth $60 million, and half of the NRL's sixteen teams have a corporate bookmaker as a major sponsor. The AFL has a $10 million a year deal with CrownBet.70

Another issue raised by the codes was that the proposed change will put at risk the integrity agreements they have with Australian-based licensed betting agencies. Those agreements impose information sharing arrangements on the bookmakers and ensure the AFL and NRL can monitor and police any gambling by players, coaches and staff. The codes raised the possibility that if betting operations go offshore, the level of control the codes currently have would be lost.71

In their joint submission to the Senate Committee inquiry into the Bill, the AFL, NRL, Cricket Australia, Tennis Australia and others argued that the existing gambling regulatory framework (including Codes of Practice governing free-to-air, Pay TV and online broadcast) is sufficient. The submission argues that the restrictions proposed by the Bill would adversely affect the revenue raising capacity of major sporting codes, which would

66. Ibid., pp. 2-3 67. Tabcorp, Submission to Senate Environment and Communications Legislation Committee, Inquiry into the Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017, n.d. 68. Responsible Wagering Australia, Submission to Senate Environment and Communications Legislation Committee, Inquiry into the

Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017, n.d, p. 1. 69. C Uhlmann, ‘Sporting codes fight Government's proposed restrictions on gambling advertising on TV’, ABC online, 19 April 2017. 70. Ibid.

71. Ibid.

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impact the codes’ ability to fund integrity programs, grassroots development programs, community programs and so on.72

Media organisations

Australian Subscription Television and Radio Association (ASTRA) (submission 4) ASTRA is the peak body representing the subscription media industry in Australia. Its members include channels whose product offering is based primarily on the broadcast of live sport, both on the broadcast platform and through online products. ASTRA indicates that it understands the legislative intentions of this Bill but prefers that restrictions on gambling promotion be implemented in the co-regulatory codes of practice, rather than through legislation.73

ASTRA’s submission indicated that it was in the process of making changes to its Code of Practice.74 It argues that the proposed restrictions would have a greater impact on its members than free-to-air TV broadcasters, because of the substantial portion of programming of live coverage of sport that their members provide.75

In summary, ASTRA is concerned that:

• restrictions on gambling promotions during online coverage of live sport, as proposed in the Bill, exceed that in the ASTRA Code of Practice76

• there are inconsistencies between the Bill and ASTRA Code77 and

• the existing program standards power as set out in the BSA, which requires that this power is to be exercised only if there is a breach of industry codes, should be maintained.78

ASTRA recommends that gambling advertisements for fantasy sports should be excluded from the restrictions proposed in the Bill.79

Communications Alliance Ltd (CAL) (submission 6) The Communications Alliance Ltd is a representative body of the Australian communications industry.80 One of the concerns raised by the Communications Alliance relates to the record keeping rules that may be included in any gambling promotion program standard specified by the ACMA under proposed sections 125A of the ACMA Act (item 13 of the Bill). Proposed subsections 125A(7) and (8) would allow the gambling promotion program standard to require broadcasters to keep audio-visual records of program content provided in conjunction with live coverage of a sporting event, which can be provided to ACMA if a complaint has been made.

In its brief submission, the Communications Alliance indicates that were such record-keeping rules to be included in a gambling promotion program standard, significant time and costs implications would ensue from establishing, maintaining and administering the records.81

72. Coalition of Major Professional and Participation Sports Inc., Submission to Senate Environment and Communications Legislation Committee, Inquiry into the Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017, 12 January 2018, p. 3. 73. Australian Subscription Television and Radio Association (ASTRA), Submission to Senate Environment and Communications Legislation Committee, Inquiry into the Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017, 12 January

2018, pp. 3-4. 74. The revised Code is now in force. See Appendix A for details. 75. ASTRA, Submission to Senate Environment and Communications Legislation Committee, op. cit., p. 4. 76. Ibid., p. 3. 77. Ibid., p. 11. An example given in the submission concerns the definition of ‘live’. While the ASTRA Code refers only to ‘live-to-air broadcast’,

the definition in the Bill includes delayed transmission commencing prior to the conclusion of the relevant match. 78. Ibid., 3 and 7-10. 79. Ibid., pp. 20-21. A detailed description of ‘fantasy sports’ is provided in B O’Farrell, Review of Illegal Offshore Wagering - Report to the

Ministers for Social Services and the Minister for Communications and the Arts by lead reviewer, the Hon. Barry O’Farrell, 18 December 2015, p. 5. Further, the Department of Broadband, Communications and the Digital Economy (DBCDE) 2012 review of the Interactive Gambling Act recommended, in its Recommendation 30, that the treatment of fantasy sports under the Interactive Gambling Act be the subject of further consultation with the Coalition of Major Professional and Participation Sports, state and territory governments and the promoters of fantasy sports competitions. For further information, see: DBCDE, Interim Report - Review of the Interactive Gambling Act 2001, 2012, pp. 133-134. 80. Communications Alliance Ltd, ‘About us’, Communications Alliance Ltd website. 81. Communications Alliance Ltd, Submission to Senate Environment and Communications Legislation Committee, Inquiry into the

Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017, 12 January 2018, p. 1.

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Commercial Radio Australia (CRA) (submission 7) Commercial Radio Australia (CRA) is the peak industry body representing the interests of commercial radio broadcasters throughout Australia.82

CRA indicates that further record keeping obligations proposed by the Bill would be likely to have a significant impact on radio stations in regional and rural areas, which frequently operate with limited staff and resources.83

Special Broadcasting Service (SBS) (submission 9) As a public broadcaster, the Special Broadcasting Service (SBS) is of the view that it should not be included in the list of broadcasters and online content service providers to whom this Bill applies. It argues that its inclusion in the regulatory regime established by the Bill would compromise the editorial independence of the SBS, which is guaranteed by the provisions of the Special Broadcasting Service Act 1991.84

SBS has concerns about the ACMA’s power to impose financial penalties on it as a public broadcaster; as well as the approach taken by the Bill, under which audiences are allowed to complain to the ACMA directly, rather than the situation under the existing complaint handling process where complainants are required to approach the broadcaster first before escalating a concern to the ACMA.85

As discussed above, when the Bill was debated in the Senate, Labor proposed an amendment to remove SBS from the scope of the Bill, but the amendment was not supported by the Senate.86

Free TV Australia Limited (Free TV) (submission 11) Free TV supports the Bill in general, but expressed concerns similar to those raised by others including:

• that the advertising prohibitions should apply to broadcasters and online service providers from the same commencement time

• the ability of ACMA to determine gambling promotion program standards on direction from the Minister

• additional record keeping obligations and

• enforcement of the rules on offshore operators.87

Digital Industry Group Incorporated (DiGi) (submission 12)

DiGi is a not for profit industry association with members such as Facebook, Microsoft, Twitter, Google, and Yahoo!.

DIGI considers that there has been limited consultation with the digital industry about the Bill and its potential impact on its members. DIGI raised concerns similar to those in other submissions and suggests that the digital industry is different from the broadcasting industry and a different set of self-regulatory Codes of Practice should be developed.88

82. Commercial Radio Australia, Submission to Senate Environment and Communications Legislation Committee, Inquiry into the Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017, 5 January 2018, p. 1. 83. Ibid, p. 3. 84. SBS, Submission to Senate Environment and Communications Legislation Committee, Inquiry into the Communications Legislation

Amendment (Online Content Services and Other Measures) Bill 2017, January 2018, p. 1. 85. Ibid, p. 6. 86. D O’Neill, ‘Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017 - amendments to be moved by

Senator O'Neil on behalf of the Opposition’, Senate, sheet 8380, 19 March 2018; Australia, Senate, ‘Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017’, Journals, 93, 2016-18, 27 March 2018, pp. 2936-42. 87. Free TV, Submission to Senate Environment and Communications Legislation Committee, Inquiry into the Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017, 12 January 2018. 88. DiGi, Submission to Senate Environment and Communications Legislation Committee, Inquiry into the Communications Legislation

Amendment (Online Content Services and Other Measures) Bill 2017, n.d, pp. 1-2.

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Financial implications The Explanatory Memorandum indicates that the measures in this Bill are not expected to have any direct financial impact on Commonwealth revenue or expenditure.89

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.90

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee on Human Rights considers that the Bill does not raise human rights concerns.91

Key issues and provisions The Bill does two key things. First, it amends the Broadcasting Services Act 1992 (BSA) to allow ACMA, on direction by the Minister, to determine a gambling promotion program standard that would apply to broadcasters in relation to the live coverage of a sporting event (proposed section 125A of the BSA at item 13 of the Bill). Secondly, it would add proposed Schedule 8 to the BSA to allow ACMA to make rules about gambling promotional content provided on an online content service in conjunction with live coverage of a sporting event (item 22 of the Bill). Accordingly, the Bill provides a framework through which gambling advertising during live sporting events can be restricted, but does not impose any restrictions itself.

Broadcasting restrictions The Explanatory Memorandum to the Bill indicates that the Government intends that gambling advertising restrictions will be imposed on broadcasters through amendments to industry codes of practice and that proposed section 125A of the BSA will only be employed if industry fails to self-regulate.92 Broadcasting codes of practice are developed by industry and approved by ACMA ‘once it is satisfied that broadcasters have undertaken public consultation and the codes contain appropriate community safeguards’.93 ACMA has approved amendments to the broadcasting codes to implement new rules about gambling advertising during the broadcast of live sports.94 The new rules took effect on 30 March 2018.95

Online content restrictions Item 22 of the Bill would add proposed Schedule 8 to the BSA to establish a legislative framework that:

• allows the ACMA to make online content service provider rules about gambling promotional content provided on an online content service in conjunction with live coverage of a sporting event96

• allows the ACMA to determine if an online content service, an online content service provider or a class of services or service providers is exempt from the rules97

• sets out civil penalties for contraventions of the rules98 and

• allows ACMA to give remedial directions to an online content service provider if any breaches of the rules occur.99

89. Explanatory Memorandum, Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017, p. 4. 90. The Statement of Compatibility with Human Rights can be found at pages 20-22 of the Explanatory Memorandum to the Bill. 91. Parliamentary Joint Committee on Human Rights, Report, 1, 2018, The Senate, Canberra, 6 February 2018, p. 78. 92. Explanatory Memorandum, Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017, p. 2. 93. Australian Communications and Media Authority (ACMA), ‘Broadcasting content regulation’, ACMA website. 94. ACMA, ‘New gambling advertising rules during live sports’, ACMA website. See also Appendix A of this Digest. 95. ACMA, ‘New gambling advertising rules during live sports’, op. cit; ACMA, ‘Odds and betting ads in live sport broadcasts — the rules’, ACMA

website.

96. Clause 11 of proposed Schedule 8 to the BSA, at item 22 of the Bill. 97. Clauses 15 and 16 of proposed Schedule 8 to the BSA, at item 22 of the Bill. 98. Clause 25 of proposed Schedule 8 to the BSA, at item 22 of the Bill. 99. Clause 26 of proposed Schedule 8 to the BSA, at item 22 of the Bill.

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The Bill provides that a decision made by the ACMA under the online content service provider rules will be reviewable by the Administrative Appeals Tribunal as long as the rules provide that the decision is reviewable.100

Impact on advertising revenue and value of sports rights As noted above, Australia’s major sporting codes argue that any prohibition or restriction on gambling promotional content or advertising will diminish the value of the television rights their codes attract.101 ABC News reported that the National Rugby League (NRL) has a commercial deal with Sportsbet worth $60 million, and half of the NRL's sixteen teams have a corporate bookmaker as a major sponsor; while the AFL has a $10 million a year deal with CrownBet. 102

However, experience with the introduction of prohibitions on tobacco advertising suggest that gambling advertising restrictions are unlikely to diminish the value of sporting television rights, or advertising revenue for TV broadcasters, subscription service providers and online content providers. For example, in 2014 in the context of Irish consideration of regulation of alcohol advertising and sponsorship of sports, it was noted:

Given the lack of transparency regarding the quantity of sports sponsorship revenue, it is difficult to know the extent to which the sports bodies in receipt of sponsorship will be affected. Sporting bodies may be initially negatively impacted financially by a loss of alcohol industry funding. Sporting organisations around the world predicted calamity if denied access to tobacco industry sponsorship. However, sport survived after the departure of tobacco money. This was studied most intensively in Australia. There, tobacco brands were major sponsors of cricket, Australian Rules football and motor sport. All of these sports protested loudly prior to the ban. They all indicated that there were no alternative sponsors and they would face financial disaster. The complete tobacco sponsorship ban came into effect in 1996, at which point the total revenue received by sport from all sponsorship sources was 350 million dollars. Four years later, far from falling, sports sponsorship revenue had doubled to 700 million dollars per annum, and this excluded all sponsorship connected to the Olympics in Sydney.

103 (emphasis

added)

In relation to advertising, as distinct from sports sponsorship, one study noted that ‘the ban on tobacco advertising on Australian television and radio stations came into effect on 1 September 1976… advertising revenue for both radio and television continued to increase after the ban on tobacco advertising’.104

The experience of the impact on the prohibition of tobacco advertising and sponsorship, appears to suggest that negative impacts on advertising revenue, sponsorship or the value of TV rights for sporting events are not likely to occur and that other forms of advertising will replace gambling promotions, with revenues either remaining constant or, as was the case after the tobacco ban, increasing.

Rules are to be in a legislative instrument Clause 11 of proposed Schedule 8 of the BSA, inserted by item 22 of the Bill, specifies that the online content service provider rules are to be prescribed in a legislative instrument and as such be subject to parliamentary scrutiny and disallowance under the Legislation Act 2003. Subclause 13(1) of proposed Schedule 8 would allow those rules to make provision for or in relation to prohibiting or regulating gambling promotional content provided on online content services in conjunction with live coverage of a sporting event. Proposed subclause 13(2) provides that the rules may require online content service providers to ensure that explanatory content relating to the application of the rules is made available in certain circumstances.

100. Item 15 of the Bill. 101. C Uhlmann, ‘Sporting codes fight Government's proposed restrictions on gambling advertising on TV’, op. cit. See also: Coalition of Major Professional and Participation Sports Inc., Submission to Senate Environment and Communications Legislation Committee, op. cit. 102. C Uhlmann, ‘Sporting codes fight Government's proposed restrictions on gambling advertising on TV’, op. cit. 103. College of Psychiatrists of Ireland, Submission to the Working Group on Regulating Sponsorship by Alcohol Companies of Major Sporting

Events, Department of the Taoiseach, June 2014, p. 14. See also: S Woodward, Effects on sport of bans on tobacco advertising and sponsorship in Australia, n.d. 104. Tobacco in Australia, ‘Chapter 17.5: Impact of tobacco control strategies on the Australian economy’, Tobacco in Australia: Fact & Issues, Tobacco in Australia website.

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Limitation on merits review Section 204 of the BSA sets out decisions under that Act that are reviewable by the Administrative Appeals Tribunal (AAT). Subsection 204(1) contains a table of reviewable decisions and the person who may apply for review of each decision. Item 14 of the Bill will add decisions made under subclauses 15(1) to (4) and 26(2) of proposed Schedule 8 of the BSA to the list of reviewable decisions. Accordingly, decisions by ACMA to refuse, vary or revoke an individual exemption from the online content service provider rules, or to give, vary or refuse to revoke a remedial direction to an online content service provider, will be reviewable by the AAT.

Item 15 of the Bill will add proposed subsections 204(3) to (5) to the BSA. Proposed subsection 204(3) applies in the event that ACMA makes a gambling promotion program standard under proposed section 125A of the BSA (on direction from the Minister). Proposed subsection 204(4) will apply to the online content service provider rules made under proposed Schedule 8 of the BSA. The proposed subsections provide that decisions made by the ACMA under a gambling promotion program standard or the online content service provider rules are reviewable by the AAT as long as the standard or rules (as appropriate) provide that the decision is reviewable.

As mentioned above, concerns were raised by the Standing Committee for the Scrutiny of Bills that the ACMA would have significant discretion in determining which of its decisions will or will not be subject to merits review.105 Furthermore, no limitation has been set as to the ACMA’s power to determine which (or what kind) of its decisions will be merits reviewable, or any matters or considerations that ACMA must take into account when making such a decision.106

Definitions

What can be covered by the rules? Clause 11 of proposed Schedule 8 to the BSA allows ACMA to make online content service provider rules dealing with matters that are required or permitted, under the BSA, to be dealt with in those rules. Clause 13 of proposed Schedule 8 provides that the online content service provider rules may prohibit or regulate ‘gambling promotional content provided on online content services in conjunction with live coverage of a sporting event’. The meanings of these component terms are examined below.

Gambling promotional content Under clause 2 of proposed Schedule 8 to the BSA, ‘gambling promotional content’ means:

(a) advertising content

(b) sponsorship content or

(c) promotional content that relates to a gambling service.

‘Gambling service’ is defined at clause 18 of proposed Schedule 8 to the BSA as a service:

• for the placing, making, receiving or acceptance of bets

• with a sole or dominant purpose of introducing individuals who wish to make or place bets to individuals willing to receive or accept those bets

• for the conduct of a lottery or the supply of lottery tickets

• for the conduct of a game that is played for money or anything else of value, is a game of chance or of mixed chance and skill and which a person must give consideration to take part in or

• that comes within the ordinary meaning of ‘gambling service’ and is not covered by any of the above points.

Online content service In proposed Schedule 8 to the BSA an ‘online content service’ is a service that delivers content through an internet carriage service to people who have equipment capable of receiving that content, or that allows end-users to access content using an internet carriage service, where the service is provided to the public and has a ‘geographical link to Australia’ (clause 3). (The term ‘geographical link to Australia’ is explained below.)

105. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 1, 2018, op. cit., pp. 10-11. 106. Ibid., p. 11.

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However, certain services that would otherwise fall within the definition of online content service (such as services that allow end users to communicate by voice or video calls, emails and instant messaging) are specifically excluded from the definition (paragraphs 3(1)(e) to (q)). ‘Exempt online simulcast services’ are also excluded from the definition. An exempt online simulcast service is a service that does no more that provide a stream of content that is identical to the stream of programs transmitted on TV or radio (either free-to-air or by subscription) simultaneously or almost simultaneously with the stream of programs (clause 4 of proposed Schedule 8 to the BSA). In addition, ACMA will be able to determine, by disallowable legislative instrument other services that do not fall within the definition of online content service (paragraph 3(1)(r)).

Online content service provider

Under clauses 2, 3 and 6 of proposed Schedule 8 of the BSA (at item 22 of the Bill), an ‘online content service provider’ is defined as a person who provides an online content service but excludes a person who merely supplies an internet carriage service that enables content to be delivered or accessed; or merely provides a billing service, or a fee collection service in relation to an online content service.

An ‘online content service’ means a service that:

• delivers, or allows end-users to access, content using an internet carriage service

• is provided to the public and

• has a geographical link to Australia.

Geographical link to Australia

Under clause 5 of proposed Schedule 8, a service will have a geographical link to Australia if an ordinary reasonable person would conclude that:

• the service is targeted at individuals who are physically present in Australia or

• any of the content provided on the service is likely to appeal to the public, or a section of the public, in Australia.

The Senate Environment and Communications Legislation Committee’s report into the Bill identified three matters that stakeholders had raised in relation to clause 5 of proposed Schedule 8.107

Firstly, ASTRA had asked whether it would be appropriate for clause 5 to provide an express exception for online content services which are geo-blocked to Australia.108 In response, the Department explained that ACMA will decide on exemptions, but that if a service is geo-blocked, then it should not be available to Australian viewers.109

Secondly, DiGi considered that the application of clause 5 was too vague and would create an ‘incredibly wide link to Australia’ as ‘potentially all content online may be of interest to Australians’.110 DiGi offered three suggestions for dealing with this issue. Firstly, it suggested that a service should not be regarded as having such a link on the basis that any of the content provided on that service was likely to appeal to the Australian public, or a section of it. If this suggestion was not adopted, DiGi suggested that the legislation should specifically identify the sports that are sought to be covered and/or apply to com.au domains only.111 In response to DiGi’s concerns, the Department explained that ‘likely to appeal’ to the Australian public or section of it ‘would have its ordinary meaning’ and that ‘every case would depend on the particular circumstances’.112 The Department indicated that

107. Senate Environment and Communications Legislation Committee, Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017—Report, op. cit., pp. 11-12. 108. Ibid., p. 11. ASTRA, Submission to Senate Environment and Communications Legislation Committee, op. cit., p. 12. 109. Senate Environment and Communications Legislation Committee, Communications Legislation Amendment (Online Content Services and

Other Measures) Bill 2017—Report, op. cit., p. 11. 110. Ibid., p. 11; DiGi, Submission to Senate Environment and Communications Legislation Committee, Inquiry into the Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017, op. cit., p. 4. 111. DiGi, Submission to Senate Environment and Communications Legislation Committee, Inquiry into the Communications Legislation

Amendment (Online Content Services and Other Measures) Bill 2017, op. cit., p. 4. 112. Senate Environment and Communications Legislation Committee, Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017—Report, op. cit., p. 12.

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the legislation intends to provide broad coverage and enable the ACMA to determine appropriate exemptions.113

Thirdly, Free TV questioned whether it was realistic to ask ACMA to enforce local laws on international operators.114 In response, the Department explained that the ACMA has existing powers in relation to foreign providers under the IGA and the Enhancing Online Safety Act 2015.115

In conjunction with live coverage of a sporting event ‘Sporting event’ is not defined exhaustively in proposed Schedule 8 to the BSA, but rather will have its ordinary meaning, subject to clause 19, which provides that the term includes the Olympic Games, the Commonwealth Games and any similar games (clauses 2 and 19). In addition, the online content service provider rules made by ACMA under proposed Schedule 8 may specify that something is, or is not, taken to be a sporting event for the purposes of that Schedule (subclauses 19(2) and (3)). Proposed section 125A of the BSA (at item 13 of the Bill), which empowers ACMA to determine a gambling promotion program standard for broadcasters if directed by the Minister, provides that ‘sporting event’ in that section is impacted by subclauses 19(1) to (3) of proposed Schedule 8 to the BSA (proposed subsection 125A(25) of the BSA). This means that under both the online content service provider rules and any gambling promotion program standard, the term ‘sporting event’ will have its ordinary meaning, but will specifically include the Olympic and Commonwealth Games and may cover or exclude events at the discretion of ACMA.

Under clause 2 of proposed Schedule 8 to the BSA, coverage of a sporting event will be ‘live’ according to the ordinary meaning of that term. Delayed coverage will also be regarded as ‘live’ as long as it is provided as if it was live and begins no later than the conclusion of the sporting event. Proposed subsection 125A(25) of the BSA (at item 13 of the Bill), provides that the same definition will apply to any gambling promotion program standard.

Gambling promotional content that is not a ‘commentator betting odds promotion’ or a ‘representative venue-based promotion’ (these terms are explained below) will be provided ‘in conjunction with’ coverage of a live sporting event on an online content service if it is provided on the service during the period beginning five minutes before the scheduled start of the sporting event and ending five minutes after the conclusion of the sporting event (subclause 21(1) of proposed Schedule 8 to the BSA). The online content service provider rules may define the ‘scheduled start’ and the ‘conclusion’ of a specified sporting event or a class of events (clauses 22 and 23 of proposed Schedule 8 to the BSA and subsection 13(3) of the Legislation Act 2003).

A different timeframe applies to a ‘commentator betting odds promotion’ and a ‘representative venue-based promotion’. A commentator betting odds promotion is the provision of betting odds (however described) by a commentator (clause 2 of proposed Schedule 8). A representative venue-based promotion is gambling promotional content that consists of visual images (including animated images) or speech of a representative of a gambling service provider that gives the impression that the representative is at, or around, the venue of a sporting event (clause 2 of proposed Schedule 8). These two types of gambling promotional content will be considered to be provided ‘in conjunction with’ coverage of a live sporting event on an online content service if provided on the service during the period beginning 30 minutes before the scheduled start of the sporting event and ending 30 minutes after the conclusion of the sporting event (subclause 21(3) of proposed Schedule 8 to the BSA). As mentioned above, the online content service provider rules may define the ‘scheduled start’ and the ‘conclusion’ of a specified sporting event or a class of events (clauses 22 and 23 of proposed Schedule 8 to the BSA and subsection 13(3) of the Legislation Act).

As set out above, the Bill provides a framework for the imposition of gambling advertising restrictions, rather than imposing such restrictions directly. In line with this approach, while the Government has indicated that it intends that gambling promotions will be prohibited in the coverage of live sporting events where the event occurs between 5am and 8.30pm, this timeframe is not set out in the Bill. 116 It will instead be imposed on

113. Ibid. 114. Ibid., Free TV, Submission to Senate Environment and Communications Legislation Committee, Inquiry into the Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017, op. cit., p. 3. 115. Senate Environment and Communications Legislation Committee, Communications Legislation Amendment (Online Content Services and

Other Measures) Bill 2017—Report, op. cit., p. 12. 116. Explanatory Memorandum, Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017, p. 2.

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broadcasters through amendments to broadcasting codes of practice117 and on online content service providers through the online content service provider rules to be made by ACMA under proposed Schedule 8 to the BSA.

In the Senate Environment and Communications Legislation Committee inquiry into the Bill, concerns were raised by stakeholders about how realistic and effective the proposed timeframe would be.118 In particular, the Australian Council on Children and the Media (ACCM) argued:

…the restrictions should apply to the full duration of any live transmission of a sporting event scheduled to start before 8:30 pm, as 'many parents would reasonably plan for children to stay up until the end of play; and many adolescents would have a later usual bedtime in any case'. 119

The Department indicated that it is up to the sporting code to set its own scheduling and noted that the proposed 5am to 8.30pm timeframe is consistent with the existing restrictions on the advertising of alcohol and MA 15+ programing, both of which are permitted after 8.30pm.120

Exemptions

Clauses 15 and 16 of proposed Schedule 8 of the BSA provide that ACMA may determine that an online content service or service provider, or a class of services or providers is not subject to the online content service rules or specified aspects of those rules.

Clause 15, which allows ACMA to determine individual exemptions, specifies matters that ACMA must consider in deciding whether to make a determination under that provision. These are:

• whether the service is a small online content service (see below)

• whether a failure to make the determination would be likely to result in a substantial adverse impact on the financial circumstances of the provider

• the likely impact of a failure to make the determination on the quantity and quality of content provided on the online content service and

• any other matters as the ACMA considers relevant (subclauses 15(5) and (6)).

In determining whether a service is a small online content service ACMA must have regard to the number of end-users who are ordinarily resident in Australia and any other matter that it considers relevant. ACMA is permitted to make reasonable assumptions and estimates in determining the number of end users and may publish a statement on its website explaining the approach that it will take to determining whether an online content service is small (subclauses 15(7) to (9)).

Clause 16, which allows ACMA to determine class exemptions, does not set out relevant considerations in deciding whether to make a determination.

A determination under clause 15 that exempts an individual service or service provider would not be a legislative instrument and will not be subject to parliamentary scrutiny or disallowance (subclause 15(14)). A determination under clause 16 that exempts a class of services or service providers would be a legislative instrument and therefore subject to parliamentary scrutiny and disallowance.

As discussed above, the Scrutiny of Bills Committee expressed concern with the breadth of ACMA’s proposed powers under clauses 15 and 16.121 The Committee describes the approach in clauses 15 and 16 as akin to ‘Henry VIII clauses’ which enable delegated legislation to alter or override the operation of primary legislation.

117. Australian Communications and Media Authority (ACMA), ‘New gambling advertising rules during live sports’, ACMA website. See Appendix A of this Digest for details. Note that item 13 of the Bill would allow the Minister to direct the ACMA to determine a gambling promotion program standard if the industry did not amend the broadcasting codes to provide gambling advertising restrictions in relation to live sporting events that the Government considered sufficient.

118. Senate Environment and Communications Legislation Committee, Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017—Report, op. cit., p. 13. 119. Ibid; ACCM, Submission to Senate Environment and Communications Legislation Committee, Inquiry into the Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017, op. cit., pp. 6-7. 120. Senate Environment and Communications Legislation Committee, Communications Legislation Amendment (Online Content Services and

Other Measures) Bill 2017—Report, op. cit., p. 13. 121. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 1, 2018, op. cit., p. 13.

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The Committee considers that ‘such clauses have the potential to impact on levels of parliamentary scrutiny and subvert the appropriate relationship between Parliament and the Executive’.122

As also discussed above, the Victorian Inter-Church Gambling Taskforce, the Victorian Local Governance Association and the Alliance for Gambling Reform would prefer that exemptions from the online content service provider rules should not be available.123 If the exemptions are to remain, these organisations consider that economic benefits to the service provider should not be grounds for exemptions and ACMA should be required to also consider the likelihood of an exemption causing harm and the number of children who are likely to be exposed to the gambling promotion as a result of the exemption.124

Compliance and enforcement Section 10 of the ACMA Act sets out ACMA’s broadcasting, content and datacasting functions. These include monitoring compliance with broadcasting codes of practice and program standards and monitoring and investigating complaints relating to broadcasting services and datacasting services.125 Item 1 of the Bill will amend section 10 to include an additional function of monitoring compliance with the online content service provider rules.

Subclause 25(1) of proposed Schedule 8 of the BSA specifies that an online content service provider must not contravene the online content service provider rules. This is a civil penalty provision. Civil penalties are dealt with in Part 14B of the BSA. Within that Part, section 205F allows the Federal Court to order a person who has contravened a civil penalty provision to pay a pecuniary penalty to the Commonwealth. Item 18 of the Bill amends section 205F to provide that the maximum penalties that the Court may impose for a contravention of the rules is 300 penalty units ($63,000) for a body corporate and 60 penalty units ($12,600) for a person who is not a body corporate.126 Under subclause 25(3) of proposed Schedule 8 of the BSA, on each day that a contravention of the rules continues, the provider commits a separate contravention. This means that the maximum pecuniary penalty can be imposed for each day that a contravention continues.

Subclause 25(4) provides that a breach of the rules can be dealt with by an infringement notice, rather than through court proceedings. Infringement notices are dealt with under Part 14E of the BSA, which allows an authorised infringement officer who has reason to believe that a person has contravened a relevant provision to give the person an infringement notice. An infringement notice must be given within 12 months of the alleged contravention and can only be given if the person has previously received a formal warning (section 205Y). Item 19 of the Bill amends section 205ZA such that the penalty that must be specified in an infringement notice given to a body corporate for a breach of the rules must be equal to 60 penalty units ($12,600). The penalty for an individual will be 10 penalty units ($2,100) (paragraph 205ZA(b)).

Subclauses 26(1) and (2) of proposed Schedule 8 of the BSA allow ACMA to give a remedial direction to an online content service provider who has contravened, or is contravening, the rules. The direction may require the provider to take specified action aimed at ensuring that the provider does not contravene the rules in the future. A provider who contravenes a direction is liable to a civil penalty, with a maximum penalty of 2,000 penalty units ($420,000) for a body corporate and 400 penalty units ($84,000) for a person who is not a body corporate (subclause 26(4) of proposed Schedule 8 of the BSA and item 18 of the Bill). Under subclause 26(6) of proposed Schedule 8 of the BSA, on each day that a contravention of a direction continues, the provider commits a separate contravention. This means that the maximum pecuniary penalty can be imposed for each day that a contravention continues.

Complaints may be made to ACMA by any person who believes that an online service provider has contravened the rules. ACMA may, but is not required to, investigate a complaint (clause 24 of proposed Schedule 8 of the BSA).

122. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 1, 2018, op. cit., p. 13. 123. Ibid., p. 5. 124. Ibid. 125. Section 10 of the ACMA Act. 126. Section 4AA of the Crimes Act 1914 (Cth) provides that a penalty unit is equal to $210.

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Subclause 13(3) of proposed Schedule 8 of the BSA provides that the rules may require online content service providers to keep records that will allow the ACMA to ascertain whether they have been complying with the rules.

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Appendix A Provision in industry Codes of Practice in relation to gambling promotion

Name of the Code of Practice

Prohibition on gambling promotion

Australian Association of National Advertisers (AANA)

Code of Ethics

Code for Marketing & Advertising Communications to Children

Wagering Advertising & Marketing Communication Code

The AANA Code of Ethics requires all advertising and marketing communications to comply with the various Codes especially with respect to children, clause 3.1.

The Code for Marketing & Advertising Communications to Children requires advertisers and marketers not to mislead or deceive children (clause 2.2), and ensure safety and preservation of community standards and social values with regard to children (clauses 2.5 - 2.6).

Clauses 2.1 - 2.3 of the AANA Wagering Advertising Code set out specific rules for advertising wagering products or services directed to children and young adults.

Commercial Radio Australia Code of Practice

Section 9 deals with gambling and betting odds advertising in live sports coverage and applies from 30 March 2018. Advertisements relating to betting or gambling, and the promotion of betting odds, are not permitted during the broadcast of a live sporting event between 5am and 8.30pm. Gambling advertising that is permitted at other times ‘must not be directed at children, portray children as participating in betting or gambling, or portray betting or gambling as a family activity’ (section 9.13).

Free TV Australia

Commercial Television Industry Code of Practice

Section 6.5 and Appendix 3 of the Code provide that a commercial relating to betting or gambling must not be broadcast: (a) in any Program classified G or lower between: i. 6.00 am and 8.30 am; and

ii. 4.00 pm and 7.00 pm; and (b) during any Program that is broadcast between 5.00 am and 8.30pm and principally directed to Children.

Appendix 3 of the Code contains detailed provisions dealing with advertising during live sporting events. Appendix 3 commenced on 30 March 2018 and reflects the Government’s preferred approach as set out in the Regulatory Impact Statement (RIS) that accompanies the Bill. It provides that advertising relating to betting or gambling, and the promotion of betting odds is not permitted between 5am and 8.30pm during the broadcast of a live sporting event and for five minutes before or after that time.

At times when gambling advertising and betting odds promotion is allowed during a live sporting event, such advertisements must not (among other things): • be directed to children

• portray children as participating in betting or gambling or

• portray betting or gambling as a family activity (clause 3.13 of Appendix 3).

Australian Subscription Television and Radio

Appendix A of each of the ASTRA Codes, which commenced on 30 March 2018, reflects the Government’s preferred approach as set out in the RIS

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Association (ASTRA)

Subscription broadcast television codes of practice

Subscription narrowcast television codes of practice

Subscription narrowcast radio codes of practice

that accompanies the Bill.

It provides that advertising relating to betting or gambling, and the promotion of betting odds is not permitted between 5am and 8.30pm during the broadcast of a live sporting event and for five minutes before or after that time.

At times when gambling advertising and betting odds promotion is allowed during a live sporting event, such advertisements must not (among other things):

• be directed to children

• portray children as participating in betting or gambling or

• portray betting or gambling as a family activity (clause 9 of Appendix 3).

SBS Codes of Practice

Code 5 of the SBS Codes of Practice deals with advertising and sponsorship announcements on SBS television and radio. It notes that SBS Television follows Appendix 3 of the Commercial Television Industry Code of Practice (as discussed above) and that SBS Radio follows section 9 of the Commercial Radio Code of Practice (as discussed above).

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Appendix B Relevant state and territory gambling and fair trading laws.

State/Territory/Cth Gambling regulations

ACT

Interactive Gambling Act 1998 (ACT)

Fair Trading (Australian Consumer Law) Act 1992 (ACT)

Key regulators:

ACT Gambling and Racing Commission ACT Fair Trading

NSW

No legislation on interactive or online gambling

Betting and Racing Act 1998 (NSW)

Fair Trading Act 1987 (NSW)

Key regulators:

Liquor and Gaming NSW

NSW Fair Trading

Victoria Gambling Regulation Act 2003 (Vic) )—deals with interactive gaming in Chapter 7

Australian Consumer Law and Fair Trading Act 2012 (Vic)

Key regulators:

Victorian Commission for Gambling and Liquor Regulation

Consumer Affairs Victoria

Queensland Interactive Gambling (Player Protection) Act 1998 (Qld)

Wagering Act 1998 (Qld)

Fair Trading Act 1989 (Qld)

Key regulators:

Office of Liquor and Gaming Regulation

Queensland Office of Fair Trading

Western Australia No legislation on interactive or online gambling Gaming and Wagering Commission Act 1987 (WA)

Fair Trading Act 2010 (WA)

Key regulators:

Department of Racing, Gaming and Liquor

Department of Mines, Industry Regulation and Safety

South Australia

No legislation on interactive or online gambling

Authorised Betting Operations Act 2000 (SA)

Fair Trading Act 1987 (SA)

Key regulators:

Independent Gambling Authority

Consumer and Business Services (CBS)

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Tasmania

No legislation on interactive or online gambling

Gaming Control Act 1993 (Tas)

Consumer Affairs Act 1988 (Tas)

Key regulators:

Tasmanian Liquor and Gaming Commission

Consumer Affairs and Fair Trading

Northern Territory Gaming Control Act (NT)—deals with internet gaming in Division 5 of Part 4 Racing and Betting Act (NT)

Unlawful Betting Act (NT)

Consumer Affairs and Fair Trading Act (NT)

Key regulators:

NT Licensing Commission

NT Consumer Affairs

Commonwealth

Interactive Gambling Act 2001 (Cth)

Competition and Consumer Act 2010 (Cth)

Key regulator:

Australian Communications and Media Authority (ACMA)

Australian Competition and Consumer Commission

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