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2019-2020
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
Interactive Gambling Amendment (Banning Social Casinos and Other Measures) Bill
2020
EXPLANATORY MEMORANDUM
and
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Circulated by authority of
Andrew Wilkie MP
Interactive Gambling Amendment (Banning Social Casinos and Other Measures) Bill
2020
OUTLINE
The Interactive Gambling Amendment (Banning Social Casinos and Other Measures) Bill
2020 creates a criminal offence and civil liability for any person who provides social casino
services to Australian customers. Social casinos services are games of chance, or mixed
chance and skill, which are played on applications or online and for which the customer
gives monetary payment to play the game but cannot cash out their virtual chips for
money. Currently social casino games are classed as entertainment so are not subject to
any gambling regulations.
The bill also gives the Australian Communications and Media Authority (ACMA) the power
to apply for Federal Court injunctions against carriage service providers to block domain
names, URLS and IP addresses of online locations which provide prohibited interactive
gambling services and prohibited social casino services to Australian customers. The
injunction may also require an online search engine provider to take reasonable steps to
remove a search result which refers users to the online location of the prohibited service.
The recent COVID-19 restrictions have led to greater numbers of people accessing online
gambling services including social casinos. Online gambling carries similar risks as
traditional gambling services, including addiction and subsequent mental and physical
health implications. Online gambling services also carry heightened risks due to ease of
access and use of mobile devices. The increasing popularity of social casinos in particular
is problematic because such sites are attractive to new gamblers and children, many of
whom go on to more orthodox gambling.
The bill targets provision of sites, operating as a disincentive for providers rather than
penalising the user of the prohibited site or service.
FINANCIAL IMPACT
The bill will have no financial impact.
NOTES ON CLAUSES
Clause 1: Short Title
This clause is a formal provision and specifies the short title of the Bill as the Interactive
Gambling Amendment (Banning Social Casinos and Other Measures) Act 2020.
Clause 2: Commencement
This clause provides for the commencement of the Act on the day after it receives Royal
Assent.
Clause 3: Schedules
This clause establishes that, as the intent of the Bill is to be realised through amendments
to another Act, the Schedules of this Bill will amend that Act accordingly.
Schedule 1
Interactive Gambling Act 2001
Item 1: Section 4
1. Item 1 inserts two new terms into the definition section of the Interactive Gambling
Act 2001 (the Act). Firstly, the term illegal social casino service means a prohibited
social casino service which is provided to an Australian customer contrary to the
civil liability provision in subsection 15AB(3). Secondly, the term prohibited social
casino service means a service for the conduct of a game of chance or mixed
chance and skill, which is played for virtual currency on an interactive platform, and
for which the customer gives monetary payment to play the game. The term
interactive platform includes websites, downloaded applications and social media
platforms.
Item 2: Section 8
2. Item 2 inserts "or prohibited social casino service" after the term "gambling service".
Item 3: Part 2 (heading)
3. After "Designated interactive gambling services", item 3 inserts "and prohibited
social casino services".
Item 4: After section 15AA
4. Item 4 inserts section 15AB which makes it illegal to provide social casino services
to customers who are physically present in Australia.
5. Subsection (1) creates an offence for social casino services to be intentionally
provided to Australian customers. The maximum penalty is 5,000 penalty units.
6. Subsection (3) creates a civil penalty for provision of a prohibited social casino
service to Australian customer. The maximum penalty is 7,500 penalty units.
7. Subsections (2) and (4) provide that for each day the service is provided to an
Australian customer a separate contravention is committed.
8. Per subsection (5) the offence and contravention clauses do not apply if the
provider of the service did not know, or could not with reasonable diligence have
ascertained that an Australian-customer link existed at the time of provision. In the
case of a criminal prosecution the defendant bears an evidential burden in relation
to whether they did not know or could not have reasonably known the service had
an Australian-customer link. Placing an evidential burden on the defendant is
consistent with the Criminal Code Act 1995 (section 13.3).
9. Per subsection (6) for the purposes of determining if this 'link' existed, the Court
must take into consideration:
a. Whether prospective customers were informed that Australian law prohibits
provision of social casinos;
b. Whether customers entered into a contract which expressly state the
customer should not be in Australia while using the service;
c. Whether the provider required customers to provide personal details which
indicated the customer was not physically present in Australia;
d. Network data which indicates the customer was in Australia;
e. Any other relevant matters.
10. Subsection (7) determines that the offence applies whether or not the provision of
the service occurred in Australia as established by the Criminal Code Act 1995.
Item 5: After paragraph 64A(b)
11. Item 5 gives the ACMA the power to issue a formal warning if a person contravenes
the civil offence in section 15AB(3).
Item 6: After paragraphs 64C(b) and 64D(b)
12. Item 6 includes the civil offence in section 15AB(3) as a provision which is subject
to an infringement notice under part 5 of the Regulatory Powers Act, and makes
section 15AB(3) enforceable under part 7 of the Regulatory Powers Act.
Item 7: After section 64D
13. Item 7 inserts a new section 64E which deals with injunctions relating to online
locations which facilitate the provision of prohibited online gambling services or
prohibited social casino services. This will make it more difficult for Australian
internet users to find and use websites which offer these services.
14. Subsection (1) specifies that ACMA may apply, on behalf of the Commonwealth, to
the Federal Court to grant an injunction that requires a carriage service provider to
take steps that the Court considers reasonable to disable access to an online
location that contravenes, or facilitates a contravention of:
a. Section 15 (providing prohibited interactive gambling services to customers
in Australia);
b. Section 15AA (providing unlicensed regulated interactive gambling services
to customers in Australia);
c. Section 15AB (providing social casino services to customers in Australia);
d. Section 15A (an Australian-based service providing prohibited interactive
gambling services to customers in designated countries).
15. Per subsection (2) the application may also request the injunction require an online
search engine provider to take reasonable steps to not provide a search result
which refers users to the online location of the prohibited service. Online search
engines enable users to discover the existence of online locations that may be the
subject of an injunction. In some cases, search results can disclose alternate
pathways to these online locations, which would undermine the effectiveness of
injunctions granted under section 64E(1).
16. Subsection (3) gives the Court power to grant the injunction in terms the Court
considers appropriate. Per subsection (4) this may include requiring the carriage
service provider or online search engine to take reasonable steps to block domain
names, URLS and IP addresses which provide access to the online location. It
might also include requiring the carriage service provider or online search engine to
block domain names, URLS and IP addresses which have started to provide access
to the online location after the injunction is made, subject to conditions.
17. Subsection (5) specifies that the parties to an action under section 64E(1) are
ACMA and the carriage service provider, as well as the online search engine
provider and person operating the online location in some circumstances.
Subsection (6) clarifies that ACMA must notify the carriage service provider, the
person operating the online location, and in some cases, the online search engine
provider.
18. Subsection (7) sets out what the Court may take into account when determining
whether the grant the injunction.
19. Subsection (8) allows the Court to limit, rescind or vary an injunction. Subsection (9)
states that parties to the injunction may make an application for the Court to do so.
20. Subsection (11) gives the Minister power to, by legislative instrument, declare that a
particular online search engine provider or class of search engine providers may be
exempt from an application under subsection (1) or subsection (8). This instrument
is subject to the Parliamentary disallowance process. The disallowance process
provides Parliamentary oversight and scrutiny over any legislative instrument made
by the Minister.
21. Subsection (12) specifies that a carriage service provider or, if applicable, an online
search engine provider is not liable for any costs in relation to the proceedings
unless the provider enters an appearance and takes part in the proceedings. This
will ensure that carriage service providers and online search engine providers will
not incur unreasonable costs in preventing the provision of prohibited online
gambling services or prohibited social casino services.
Item 8: After section 69A
22. Item 8 inserts a new section 69B which allows the Minister to make regulations
about the unenforceability of agreements relating to illegal social casino services.
23. Subsection (1) provides that the regulations may state that an agreement has no
effect to the extent to which it provides for payment of money for the supply of an
illegal social casino service. In addition, civil proceedings cannot lie against a
person to recover money alleged to have been paid in connection with an illegal
social casino service.
24. Subsection (2) states that the Minister must take all reasonable steps to ensure that
regulations are made which enact subsection (1) within six months of
commencement of the section.
25. Subsection (4) clarifies that for the purposes of this section an agreement means
both those made orally and in writing.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act
2011
Interactive Gambling Amendment (Banning Social Casinos and Other Measures) Bill
2020
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
The purpose of the bill is to restrict provision of prohibited interactive gambling services
and prohibited social casino services to Australian customers, and to give ACMA the
power to seek injunctions which block websites that carry this content.
Human rights implications
The bill creates new criminal and civil liability under section 15AB for providing a prohibited
social casino service to an Australian customer. This new offence engages but does not
limit the presumption of innocence under Article 14(2) of the International Covenant on
Civil and Political Rights (ICCPR), the right to be presumed innocent until proved guilty
according to law.
Proposed subsection 15AB(5) contains an exception to criminal and civil liability where a
person did not know, and could not, with reasonable diligence, have ascertained that the
service they were providing had an Australian-customer link. The note to this subsection
provides that in the case of a criminal case on the basis of 15AB(1), the defendant bears
an evidential burden in relation to the matters in subsection (5), i.e. whether the defendant
didn't know, or could not with reasonable diligence have ascertained, that the customer
was physically present in Australia. If the defendant discharges this evidential burden by
raising evidence that his or her conduct falls within the exception, the prosecution must
disprove the matter beyond reasonable doubt. The evidential burden imposed on the
defendant is of a low threshold which only requires adducing or pointing to evidence which
suggests a reasonable possibility the defendant did not know of the Australian-customer
link. Placing the evidential burden on the defendant in this case is appropriate as the
matter required to be adduced is a matter peculiarly within the knowledge of the
defendant. The bill does not otherwise alter the process that would apply to the
investigation or prosecution of the criminal penalty proposed to be inserted by section
15AB. This measure does not otherwise engage the rights in Article 14 of the ICCPR.
The bill engages the right to freedom of expression as contained in article 19 of the
International Covenant on Civil and Political Rights. Article 19 states that individuals shall
have 'freedom of expression; this right shall include freedom to seek, receive and impart
information and ideas of all kinds'. Under article 19(3) the right to freedom of expression
may be subject to limitations which, inter alia, may include for the protection of public
health. Limitations must be prescribed by law, pursue a legitimate objective, be rationally
connected to the achievement of that objective and a proportionate means of doing so.
The bill would enable the Federal Court to order internet carriage service providers and
online search engine providers to block access to websites which facilitate prohibited
online gambling services or prohibited social casino services. The effect of the order would
be to prevent users located in Australia from easily accessing specific websites, or from
receiving search results from an internet search engine, that provide a pathway to certain
online locations that offer or advertise the relevant site. While this would restrict the ability
of the prohibited website to 'impart information', the power to grant an injunction is subject
to a number of safeguards, such as the range of factors listed under section 64D(7).This
includes an explicit public interest test, other possible remedies, and the proportionality of
the response in the circumstances. The limitation therefore is pursuing a legitimate public
health objective, is rationally connected to that objective and expressly allows for a
proportionality test.
Conclusion
The Bill is compatible with human rights. To the extent that it may limit human rights, those
limitations are reasonable, necessary and proportionate.
Andrew Wilkie MP