Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2016
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
Gambling Harm Reduction (Protecting Problem Gamblers and Other Measures) Bill
2016
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 2016
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
2016
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 2016.
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 EFTPOS 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 2017 and must be actually
compliant by 31 December 2021 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 2021 (for venues with over 5 poker
machines) and 31 December 2023 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 2021.
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 the Governor-General may make regulations prescribing
matters relating to the Act.