Interactive Gambling Act 2001
No. 84, 2001
An Act about interactive gambling, and for related purposes
Contents
Part 1—Introduction
1 Short title...................................
2 Commencement...............................
3 Simplified outline..............................
4 Definitions..................................
5 Interactive gambling services.......................
6 Prohibited Internet gambling services..................
8 Australian‑customer link....................
8A Excluded wagering service.........................
8B Excluded gaming service..........................
8C Designated broadcasting link and designated datacasting link....
8D Excluded lottery service..........................
9 Contracts exempt under the Corporations Law.............
9A Designated country.............................
9B Designated country‑customer link...............
10 Exempt services...............................
11 Extended meaning of use
12 Crown to be bound.............................
13 Extension to external Territories......................
14 Extra‑territorial application...................
Part 2—Offence of providing an interactive gambling service to customers in Australia
15 Offence of providing an interactive gambling service to customers in Australia
Part 2A—Offence of providing an Australian-based interactive gambling service to customers in designated countries
15A Offence of providing an Australian-based interactive gambling service to customers in designated countries
Part 3—Complaints system: prohibited Internet gambling content
Division 1—Making of complaints to the ABA
16 Complaints about prohibited Internet gambling content........
17 Complaints about breaches of online provider rules etc.........
18 Form of complaint..............................
19 Residency etc. of complainant.......................
Division 2—Investigations by the ABA
20 Investigation of complaints by the ABA.................
21 ABA may investigate matters on its own initiative...........
22 Conduct of investigations..........................
23 Protection from civil proceedings.....................
Division 3—Action to be taken in relation to a complaint about prohibited Internet gambling content hosted outside Australia
24 Action to be taken in relation to a complaint about prohibited Internet gambling content hosted outside Australia
25 Deferral of action in order to avoid prejudicing a criminal investigation
26 Anti‑avoidance—notified Internet content..........
27 Anti‑avoidance—special access‑prevention notice
28 Compliance with access‑prevention notices.........
29 Notification of Internet content......................
30 Application of notifications under this Division.............
31 ABA may be taken to have issued access‑prevention notices
Part 4—Complaints system: industry code and industry standard
Division 1—Simplified outline
32 Simplified outline..............................
Division 2—Interpretation
33 Industry code.................................
34 Industry standard..............................
35 Designated Internet gambling matters..................
Division 3—General principles relating to industry code and industry standard
36 Statement of regulatory policy.......................
37 Matters that must be dealt with by industry code and industry standard
Division 4—Industry code
38 Registration of industry code........................
39 ABA may request code...........................
40 Publication of notice where no body or association represents Internet service providers
41 Replacement of industry code.......................
42 Compliance with industry code......................
43 Formal warnings—breach of industry code...............
Division 5—Industry standard
44 ABA may determine an industry standard if a request for an industry code is not complied with
45 ABA may determine industry standard where no industry body or association formed
46 ABA may determine industry standard—total failure of industry code
47 ABA may determine industry standard—partial failure of industry code
48 Compliance with industry standard....................
49 Formal warnings—breach of industry standard.............
50 Variation of industry standard.......................
51 Revocation of industry standard......................
52 Public consultation on industry standard.................
Division 6—Industry code and industry standard to be included on a Register
53 Industry code and industry standard to be included on a Register..
Part 5—Complaints system: online provider rules
54 Online provider rules............................
55 Compliance with online provider rules..................
56 Remedial directions—breach of online provider rules.........
57 Continuing offences.............................
58 Formal warnings—breach of online provider rules...........
59 Federal Court may order a person to cease supplying Internet carriage services
Part 6—Complaints system: protection from civil proceedings
60 Protection from civil proceedings.....................
Part 7—Complaints system: review of decisions
61 Review of decisions.............................
Part 7A—Prohibition of advertising of interactive gambling services
Division 1—Interpretation: definitions
61AA Definitions..................................
Division 2—Interpretation: interactive gambling service advertisement
61BA Basic meaning of interactive gambling service advertisement
61BB Exception—political communication...................
61BC Exception—Internet sites etc. and business documents........
61BD Exception—premises of providers....................
61BE Exceptions—management advertisements etc..............
61BF Exception—products or services having the same name as an interactive gambling service
61BG Exception—anti‑gambling advertisements..........
61BH Definition...................................
Division 3—Interpretation: publication of interactive gambling service advertisement
61CA Basic meaning of publish an interactive gambling service advertisement
61CB Publish does not include broadcast or datacast.............
61CC Exception—trade communications....................
61CD Exception—advertisements in telephone directories..........
61CE Exception—ordinary activities of exempt libraries...........
61CF Exception—acknowledgments of assistance or support........
Division 4—Broadcasting or datacasting of interactive gambling service advertisements in Australia
61DA Interactive gambling service advertisements not to be broadcast or datacast in Australia
61DB Accidental or incidental broadcast or datacast permitted........
61DC Broadcast or datacast of advertisements during flights of aircraft..
Division 5—Publication of interactive gambling service advertisements in Australia
61EA Interactive gambling service advertisements not to be published in Australia
61EB Periodicals distributed outside Australia—acts of publication permitted
61EC Australian sporting and cultural events of international significance—acts of publication permitted
61ED Accidental or incidental publication permitted.............
61EE Publication by person not receiving any benefit permitted.......
61EF Publication of advertisements during flights of aircraft........
61EG Defence—advertising under existing contracts or arrangements...
61EH Defence—display of signs before 1 July 2003..............
Division 6—Miscellaneous
61FA Failure to broadcast, datacast or publish advertisement not actionable if this Part would be contravened
61FB Applications for the purposes of section 61EC.............
61FC Review of decisions.............................
61FD Additional conditions for licences under the Broadcasting Services Act 1992
61FE Reports to Parliament............................
Part 8—Miscellaneous
62 Application of Criminal Code
63 Conduct by directors, employees and agents...............
64 Service of summons or process on foreign corporations—criminal proceedings
65 Service of notices..............................
66 Application of the Broadcasting Services Act 1992
67 Additional ABA function—monitoring compliance with codes and standards
68 Review before 1 July 2003.........................
69 Operation of State and Territory laws...................
69A Regulations about unenforceability of agreements relating to illegal interactive gambling services
70 Regulations..................................
Interactive Gambling Act 2001
No. 84, 2001
An Act about interactive gambling, and for related purposes
[Assented to 11 July 2001]
The Parliament of Australia enacts:
This Act may be cited as the Interactive Gambling Act 2001.
(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.
(2) Parts 2 and 7A commence on the 28th day after the day on which this Act receives the Royal Assent.
(2A) Part 2A commences on the 28th day after the day on which this Act receives the Royal Assent.
(3) The following provisions of this Act commence on a day to be fixed by Proclamation:
(a) Part 3;
(b) section 42;
(c) section 43;
(d) section 48;
(e) section 49;
(f) Part 5.
(4) If the provisions referred to in subsection (3) do not commence under that subsection within the period of 6 months after the day on which this Act receives the Royal Assent, those provisions commence on the first day after the end of that period.
The following is a simplified outline of this Act:
• This Act regulates interactive gambling services by:
(a) prohibiting interactive gambling services from being provided to customers in Australia; and
(aa) prohibiting Australian‑based interactive gambling services from being provided to customers in designated countries; and
(b) establishing a complaints‑based system to deal with Internet gambling services where the relevant content (prohibited Internet gambling content) is available for access by customers in Australia.
• A person may complain to the ABA about prohibited Internet gambling content.
• If prohibited Internet gambling content is hosted in Australia and the ABA considers that the complaint should be referred to an Australian police force, the ABA must refer the complaint to a member of an Australian police force.
• If prohibited Internet gambling content is hosted outside Australia, the ABA must:
(a) if the ABA considers that the content should be referred to a law enforcement agency—notify the content to a member of an Australian police force; and
(b) notify the content to Internet service providers so that the providers can deal with the content in accordance with procedures specified in an industry code or industry standard (for example, procedures relating to the provision of regularly updated Internet content filtering software to subscribers).
• Bodies and associations that represent Internet service providers may develop an industry code.
• The ABA has a reserve power to make an industry standard if there is no industry code or if an industry code is deficient.
• This Act prohibits the advertising of interactive gambling services.
In this Act, unless the contrary intention appears:
ABA means the Australian Broadcasting Authority.
access has the same meaning as in Schedule 5 to the Broadcasting Services Act 1992.
Australia, when used in a geographical sense, includes the external Territories.
Australian‑customer link has the meaning given by section 8.
Australian police force means:
(a) the Australian Federal Police; or
(b) the police force of a State or Territory.
bet includes wager.
broadcasting service means a broadcasting service (as defined by the Broadcasting Services Act 1992) provided in Australia.
business includes a venture or concern in trade or commerce, whether or not conducted on a regular, repetitive or continuous basis. To avoid doubt, the fact that a club or association provides services to its members does not prevent those services from being services provided in the course of carrying on a business.
business day means a day that is not a Saturday, a Sunday or a public holiday in the place concerned.
Chapter 8 agreement has the same meaning as in the Corporations Law.
civil proceeding includes a civil action.
content service means a content service (as defined by the Telecommunications Act 1997) provided using a listed carriage service.
datacasting licence has the same meaning as in the Broadcasting Services Act 1992.
datacasting service means a datacasting service (within the meaning of the Broadcasting Services Act 1992) that is provided in Australia under a datacasting licence.
designated broadcasting link has the meaning given by section 8C.
designated country has the meaning given by section 9A.
designated country‑customer link has the meaning given by section 9B.
designated datacasting link has the meaning given by section 8C.
designated Internet gambling matter has the meaning given by section 35.
designated notification scheme means a scheme:
(a) in the nature of a scheme for substituted service; and
(b) under which the ABA is taken, for the purposes of this Act, to have notified each Internet service provider of a matter or thing.
Note: For example, the ABA may make matters or things available on the Internet (with or without security measures).
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
excluded gaming service has the meaning given by section 8B.
excluded lottery service has the meaning given by section 8D.
excluded wagering service has the meaning given by section 8A.
exempt service has the meaning given by section 10.
Federal Court means the Federal Court of Australia.
futures contract has the same meaning as in the Corporations Law.
gambling service means:
(a) a service for the placing, making, receiving or acceptance of bets; or
(b) a service the sole or dominant purpose of which is to introduce individuals who wish to make or place bets to individuals who are willing to receive or accept those bets; or
(c) a service for the conduct of a lottery; or
(d) a service for the supply of lottery tickets; or
(e) a service for the conduct of a game, where:
(i) the game is played for money or anything else of value; and
(ii) the game is a game of chance or of mixed chance and skill; and
(iii) a customer of the service gives or agrees to give consideration to play or enter the game; or
(f) a gambling service (within the ordinary meaning of that expression) that is not covered by any of the above paragraphs.
game includes an electronic game.
industry code has the meaning given by section 33.
industry standard has the meaning given by section 34.
interactive gambling service has the meaning given by section 5.
Note: This definition relates to the offences created by section 15 and Part 7A.
Internet carriage service means a listed carriage service that enables end‑users to access the Internet.
Internet content has the same meaning as in Schedule 5 to the Broadcasting Services Act 1992.
Internet service provider has the same meaning as in Schedule 5 to the Broadcasting Services Act 1992.
listed carriage service has the same meaning as in the Telecommunications Act 1997.
lottery includes an electronic lottery.
online provider rule has the meaning given by section 54.
option contract has the same meaning as in Chapter 7 of the Corporations Law.
prohibited Internet gambling content means Internet content that is accessed, or available for access, by an end‑user in the capacity of customer of a prohibited Internet gambling service.
Note: This definition relates to the complaints system.
prohibited Internet gambling service has the meaning given by section 6.
Note: This definition relates to the complaints system.
relevant agreement has the same meaning as in the Corporations Law.
special access‑prevention notice means a notice under section 27.
standard access‑prevention notice means a notice under paragraph 24(1)(c).
standard telephone service has the same meaning as in the Telecommunications (Consumer Protection and Service Standards) Act 1999.
telephone betting service means a gambling service provided on the basis that dealings with customers are wholly by way of voice calls made using a standard telephone service.
ticket includes an electronic ticket.
voice call means:
(a) a voice call within the ordinary meaning of that expression; or
(b) a call that involves a recorded or synthetic voice; or
(c) if a call covered by paragraph (a) or (b) is not practical for a particular customer with a disability (for example, because the customer has a hearing impairment)—a call that is equivalent to a call covered by either of those paragraphs;
whether or not the customer responds by way of pressing buttons on a telephone handset or similar thing.
5 Interactive gambling services
(1) For the purposes of this Act, an interactive gambling service is a gambling service, where:
(a) the service is provided in the course of carrying on a business; and
(b) the service is provided to customers using any of the following:
(i) an Internet carriage service;
(ii) any other listed carriage service;
(iii) a broadcasting service;
(iv) any other content service;
(v) a datacasting service.
Note: This definition relates to the offences created by section 15 and Part 7A.
(2) Subsection (1) has effect subject to subsection (3).
Excluded services
(3) For the purposes of this Act, none of the following services is an interactive gambling service:
(a) a telephone betting service;
(aa) an excluded wagering service (see section 8A);
(ab) an excluded gaming service (see section 8B);
(ac) a service that has a designated broadcasting link (see section 8C);
(ad) a service that has a designated datacasting link (see section 8C);
(ae) an excluded lottery service (see section 8D);
(b) a service to the extent to which it relates to the entering into of contracts that, under the Corporations Law, are exempt from a law relating to gaming or wagering (see section 9);
(c) an exempt service (see section 10).
6 Prohibited Internet gambling services
(1) For the purposes of this Act, a prohibited Internet gambling service is a gambling service, where:
(a) the service is provided in the course of carrying on a business; and
(b) the service is provided to customers using an Internet carriage service; and
(c) an individual who is physically present in Australia is capable of becoming a customer of the service.
Note: This definition relates to the complaints system.
(1A) For the purposes of paragraph (1)(c), in determining whether an individual who is physically present in Australia is capable of becoming a customer of a service, it is to be assumed that the individual will not falsify or conceal the individual’s identity or location.
(2) Subsection (1) has effect subject to subsection (3).
Excluded services
(3) For the purposes of this Act, none of the following services is a prohibited Internet gambling service:
(aa) an excluded wagering service (see section 8A);
(ab) an excluded gaming service (see section 8B);
(ac) a service that has a designated broadcasting link (see section 8C);
(ad) a service that has a designated datacasting link (see section 8C);
(ae) an excluded lottery service (see section 8D);
(a) a service to the extent to which it relates to the entering into of contracts that, under the Corporations Law, are exempt from a law relating to gaming or wagering (see section 9);
(b) an exempt service (see section 10).
For the purposes of this Act, a gambling service has an Australian‑customer link if, and only if, any or all of the customers of the service are physically present in Australia.
(1) For the purposes of this Act, an excluded wagering service is:
(a) a service to the extent to which it relates to betting on, or on a series of, any or all of the following:
(i) a horse race;
(ii) a harness race;
(iii) a greyhound race;
(iv) a sporting event;
(b) a service to the extent to which it relates to betting on:
(i) an event; or
(ii) a series of events; or
(iii) a contingency;
that is not covered by paragraph (a).
(1A) Subsection (1) does not apply to a service unless such other conditions (if any) as are specified in the regulations have been satisfied.
(2) Paragraphs (1)(a) and (b) do not apply to a service to the extent to which:
(a) the service relates to betting on the outcome of a sporting event, where the bets are placed, made, received or accepted after the beginning of the event; or
(b) the service relates to betting on a contingency that may or may not happen in the course of a sporting event, where the bets are placed, made, received or accepted after the beginning of the event.
(3) Paragraph (1)(b) does not apply to a service to the extent to which the service is:
(a) a service for the conduct of a scratch lottery or other instant lottery; or
(b) a service for the supply of tickets in a scratch lottery or other instant lottery; or
(c) a service relating to betting on the outcome of a scratch lottery or other instant lottery; or
(d) a service for the conduct of a game covered by paragraph (e) of the definition of gambling service in section 4; or
(e) a service relating to betting on the outcome of a game of chance or of mixed chance and skill.
(1) For the purposes of this Act, an excluded gaming service is a service for the conduct of a game covered by paragraph (e) of the definition of gambling service in section 4, to the extent to which the service is provided to customers who are in a public place.
(1A) Subsection (1) does not apply to a service unless such other conditions (if any) as are specified in the regulations have been satisfied.
(2) In this section:
public place means a place, or a part of a place, to which the public, or a section of the public, ordinarily has access, whether or not by payment or by invitation (including, for example, a shop, casino, bar or club).
section of the public includes the members of a particular club, society or organisation, but does not include a group consisting only of persons with a common workplace or a common employer.
8C Designated broadcasting link and designated datacasting link
Designated broadcasting link
(1) For the purposes of this Act, a gambling service has a designated broadcasting link if:
(a) either:
(i) the service is expressly and exclusively associated with a particular program, or a particular series of programs, broadcast on a broadcasting service; or
(ii) the sole purpose of the gambling service is to promote goods or services (other than gambling services) that are the subject of advertisements broadcast on a broadcasting service, and the gambling service is associated with those advertisements; and
(b) such other conditions (if any) as are specified in the regulations have been satisfied.
Designated datacasting link
(2) For the purposes of this Act, a gambling service has a designated datacasting link if:
(a) either:
(i) the service is expressly and exclusively associated with particular content, or a particular series of content, transmitted on a datacasting service; or
(ii) the sole purpose of the gambling service is to promote goods or services (other than gambling services) that are the subject of advertisements transmitted on a datacasting service, and the gambling service is associated with those advertisements; and
(b) such other conditions (if any) as are specified in the regulations have been satisfied.
(3) In this section:
content, in relation to a datacasting service, does not include advertising or sponsorship material.
program has the same meaning as in the Broadcasting Services Act 1992, but does not include advertising or sponsorship material.
(1) For the purposes of this Act, an excluded lottery service is:
(a) a service for the conduct of a lottery; or
(b) a service for the supply of lottery tickets.
(1A) Subsection (1) does not apply to a service unless such other conditions (if any) as are specified in the regulations have been satisfied.
(1B) Without limiting subsection (1A), a condition specified in regulations made for the purposes of that subsection may provide that the lottery must not be:
(a) a highly repetitive or frequently drawn form of a keno‑type lottery; or
(b) a similar lottery.
(2) Subsection (1) does not apply to an electronic form of:
(a) scratch lottery; or
(b) other instant lottery.
9 Contracts exempt under the Corporations Law
A reference in this Act to contracts that, under the Corporations Law, are exempt from a law relating to gaming or wagering is a reference to any of the following:
(a) option contracts covered by subsection 778(1) of the Corporations Law;
(b) relevant agreements covered by subsection 778(2) of the Corporations Law;
(c) futures contracts covered by subsection 1141(1) of the Corporations Law;
(d) Chapter 8 agreements covered by subsection 1141(2) of the Corporations Law.
(1) The Minister may, by writing, declare that a specified foreign country is a designated country for the purposes of this Act.
(2) A declaration under subsection (1) has effect accordingly.
(3) The Minister must not declare a foreign country under subsection (1) unless:
(a) the government of the country has requested the Minister to make the declaration; and
(b) there is in force in that country legislation that corresponds to section 15.
(4) At least 90 days before making a declaration under subsection (1), the Minister must cause to be published a notice:
(a) in the Gazette; and
(b) in a newspaper circulating in each State, in the Northern Territory and in the Australian Capital Territory;
setting out the Minister’s intention to make the declaration.
(5) In deciding whether to declare a foreign country under subsection (1), the Minister must have due regard to:
(a) any complaints; and
(b) any supporting statements;
made by the government of that country.
(6) An instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
9B Designated country‑customer link
For the purposes of this Act, a gambling service has a designated country‑customer link if, and only if, any or all of the customers of the service are physically present in a designated country.
(1) The Minister may, by writing, determine that each service included in a specified class of services is an exempt service for the purposes of this Act.
(2) A determination under subsection (1) has effect accordingly.
(3) A determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Unless the contrary intention appears, a reference in this Act to the use of a thing is a reference to the use of the thing either:
(a) in isolation; or
(b) in conjunction with one or more other things.
(1) This Act binds the Crown in each of its capacities.
(2) This Act does not make the Crown liable to be prosecuted for an offence.
(3) The protection in subsection (2) does not apply to an authority of the Crown.
13 Extension to external Territories
This Act extends to every external Territory.
14 Extra‑territorial application
Unless the contrary intention appears, this Act extends to acts, omissions, matters and things outside Australia.
Part 2—Offence of providing an interactive gambling service to customers in Australia
15 Offence of providing an interactive gambling service to customers in Australia
(1) A person is guilty of an offence if:
(a) the person intentionally provides an interactive gambling service; and
(b) the service has an Australian‑customer link (see section 8).
(2) A person who contravenes subsection (1) is guilty of a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.
(3) Subsection (1) does not apply if the person:
(a) did not know; and
(b) could not, with reasonable diligence, have ascertained;
that the service had an Australian‑customer link.
Note: The defendant bears an evidential burden in relation to the matters in subsection (3) (see subsection 13.3(3) of the Criminal Code).
(4) For the purposes of subsection (3), in determining whether the person could, with reasonable diligence, have ascertained that the service had an Australian‑customer link, the following matters are to be taken into account:
(a) whether prospective customers were informed that Australian law prohibits the provision of the service to customers who are physically present in Australia;
(b) whether customers were required to enter into contracts that were subject to an express condition that the customer was not to use the service if the customer was physically present in Australia;
(c) whether the person required customers to provide personal details and, if so, whether those details suggested that the customer was not physically present in Australia;
(d) whether the person has network data that indicates that customers were physically present outside Australia:
(i) when the relevant customer account was opened; and
(ii) throughout the period when the service was provided to the customer;
(e) any other relevant matters.
(5) Section 15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to an offence against subsection (1).
(1) A person is guilty of an offence if:
(a) the person intentionally provides an Australian‑based interactive gambling service; and
(b) the service has a designated country‑customer link (see section 9B).
Penalty: 2,000 penalty units.
(2) A person who contravenes subsection (1) is guilty of a separate offence in respect of each day (including a day of conviction for the offence or any later day) during which the contravention continues.
(3) Subsection (1) does not apply if the person:
(a) did not know; and
(b) could not, with reasonable diligence, have ascertained;
that the service had a designated country‑customer link.
Note: The defendant bears an evidential burden in relation to the matters in subsection (3) (see subsection 13.3(3) of the Criminal Code).
(4) For the purposes of subsection (3), in determining whether the person could, with reasonable diligence, have ascertained that the service had a designated country‑customer link, the following matters are to be taken into account:
(a) whether prospective customers were informed that Australian law prohibits the provision of the service to customers who are physically present in a designated country;
(b) whether customers were required to enter into contracts that were subject to an express condition that the customer was not to use the service if the customer was physically present in a designated country;
(c) whether the person required customers to provide personal details and, if so, whether those details suggested that the customer was not physically present in a designated country;
(d) whether the person has network data that indicates that customers were physically present outside a designated country:
(i) when the relevant customer account was opened; and
(ii) throughout the period when the service was provided to the customer;
(e) any other relevant matters.
(5) Section 15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to an offence against subsection (1).
(6) For the purposes of this section, an Australian‑based interactive gambling service is an interactive gambling service, where the service has an Australian‑provider link.
(7) For the purposes of this section, an interactive gambling service has an Australian‑provider link if, and only if:
(a) the service is provided in the course of carrying on a business in Australia; or
(b) the central management and control of the service is in Australia; or
(c) the service is provided through an agent in Australia; or
(d) the service is provided to customers using an Internet carriage service, and any or all of the relevant Internet content is hosted in Australia.
(8) For the purposes of this section, the relevant Internet content, in relation to an interactive gambling service, is Internet content that is accessed, or available for access, by an end‑user in the capacity of customer of the service.
Part 3—Complaints system: prohibited Internet gambling content
Division 1—Making of complaints to the ABA
16 Complaints about prohibited Internet gambling content
(1) If a person has reason to believe that end‑users in Australia can access prohibited Internet gambling content using an Internet carriage service, the person may make a complaint to the ABA about the matter.
Content of complaint
(2) A complaint under subsection (1) about particular Internet content must:
(a) identify the Internet content; and
(b) set out how to access the Internet content (for example: set out a URL or a password); and
(c) if the complainant knows the country or countries in which the Internet content is hosted—set out the name of that country or those countries; and
(d) set out the complainant’s reasons for believing that the Internet content is prohibited Internet gambling content; and
(e) set out such other information (if any) as the ABA requires.
17 Complaints about breaches of online provider rules etc.
If a person has reason to believe that:
(a) an Internet service provider has contravened a code registered under Part 4 that is applicable to the provider; or
(b) an Internet service provider has contravened an online provider rule that is applicable to the provider;
the person may make a complaint to the ABA about the matter.
(1) A complaint under this Division is to be in writing.
(2) However, the ABA may permit complaints to be given, in accordance with specified software requirements, by way of a specified kind of electronic transmission.
19 Residency etc. of complainant
A person is not entitled to make a complaint under this Division unless the person is:
(a) an individual who resides in Australia; or
(b) a body corporate that carries on activities in Australia; or
(c) the Commonwealth, a State or a Territory.
Division 2—Investigations by the ABA
20 Investigation of complaints by the ABA
(1) The ABA must investigate a complaint made under Division 1.
(2) Subsection (1) has effect subject to subsections (3) and (4).
Internet content hosted in Australia—referral of complaint to an Australian police force
(3) If a complaint relates to Internet content hosted in Australia:
(a) the ABA must not investigate the complaint; and
(b) if the ABA considers that the complaint should be referred to an Australian police force—the ABA must:
(i) refer the complaint to a member of an Australian police force; and
(ii) give written notice to the complainant stating that the complaint has been so referred.
Frivolous or vexatious complaints
(4) The ABA need not investigate a complaint if:
(a) the ABA is satisfied that the complaint is:
(i) frivolous; or
(ii) vexatious; or
(iii) not made in good faith; or
(b) the ABA has reason to believe that the complaint was made for the purpose, or for purposes that include the purpose, of frustrating or undermining the effective administration of this Part.
Notification of the results of an investigation
(5) The ABA must notify the complainant of the results of an investigation under this section.
Termination of investigation
(6) The ABA may terminate an investigation under this section if the ABA is of the opinion that it does not have sufficient information to conclude the investigation.
Referral to Australian police force
(7) The manner in which a complaint may be referred under subsection (3) to a member of an Australian police force includes (but is not limited to) a manner ascertained in accordance with an arrangement between the ABA and the chief (however described) of the police force concerned.
(8) If a complaint is referred to a member of an Australian police force under subsection (3), the member may refer the complaint to a member of another Australian police force.
(9) This section does not, by implication, limit the ABA’s powers to refer other matters to a member of an Australian police force.
21 ABA may investigate matters on its own initiative
The ABA may investigate any of the following matters if the ABA thinks that it is desirable to do so:
(a) whether an Internet service provider is supplying an Internet carriage service that enables end‑users to access prohibited Internet gambling content hosted outside Australia;
(b) whether:
(i) an Internet service provider has contravened a code registered under Part 4 that is applicable to the provider; or
(ii) an Internet service provider has contravened an online provider rule that is applicable to the provider.
(1) An investigation under this Division is to be conducted as the ABA thinks fit.
(2) The ABA may, for the purposes of an investigation, obtain information from such persons, and make such inquiries, as it thinks fit.
(3) This section has effect subject to Part 13 of the Broadcasting Services Act 1992 (which confers certain investigative powers on the ABA).
23 Protection from civil proceedings
Civil proceedings do not lie against a person in respect of loss, damage or injury of any kind suffered by another person because of any of the following acts done in good faith:
(a) the making of a complaint under Division 1;
(b) the making of a statement to, or the giving of a document or information to, the ABA in connection with an investigation under this Division.
(1) If, in the course of an investigation under Division 2, the ABA is satisfied that Internet content hosted outside Australia is prohibited Internet gambling content, the ABA must:
(a) if the ABA considers the content should be referred to a law enforcement agency (whether in or outside Australia)—notify the content to:
(i) a member of an Australian police force; or
(ii) if there is an arrangement between the ABA and the chief (however described) of an Australian police force under which the ABA is authorised to notify the content to another person or body (whether in or outside Australia)—that other person or body; and
(b) if a code registered, and/or a standard determined, under Part 4 deals exclusively with the designated Internet gambling matters—notify the content to Internet service providers under the designated notification scheme set out in the code or standard, as the case may be; and
(c) if paragraph (b) does not apply—give each Internet service provider known to the ABA a written notice (a standard access‑prevention notice) directing the provider to take all reasonable steps to prevent end‑users from accessing the content.
Note 1: For Internet content hosted in Australia, see subsection 20(3).
Note 2: The ABA may be taken to have given a notice under paragraph (c)—see section 31.
(2) For the purposes of paragraph (1)(c), in determining whether particular steps are reasonable, regard must be had to:
(a) the technical and commercial feasibility of taking the steps; and
(b) the matters set out in subsection 4(3) of the Broadcasting Services Act 1992.
(3) Subsection (2) does not, by implication, limit the matters to which regard must be had.
Recognised alternative access‑prevention arrangements
(4) An Internet service provider is not required to comply with a standard access‑prevention notice in relation to a particular end‑user if access by the end‑user is subject to a recognised alternative access‑prevention arrangement (as defined by subsection (5)) that is applicable to the end‑user.
(5) The ABA may, by written instrument, declare that a specified arrangement is a recognised alternative access‑prevention arrangement for the purposes of the application of this Division to one or more specified end‑users if the ABA is satisfied that the arrangement is likely to provide a reasonably effective means of preventing access by those end‑users to prohibited Internet gambling content.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(6) The following are examples of arrangements that could be declared to be recognised alternative access‑prevention arrangements under subsection (5):
(a) an arrangement that involves the use of regularly updated Internet content filtering software;
(b) an arrangement that involves the use of a filtered Internet carriage service.
(7) An instrument under subsection (5) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Referral to law enforcement agency
(8) The manner in which Internet content may be notified under paragraph (1)(a) to a member of an Australian police force includes (but is not limited to) a manner ascertained in accordance with an arrangement between the ABA and the chief (however described) of the police force concerned.
(9) If a member of an Australian police force is notified of particular Internet content under this section, the member may notify the content to a member of another law enforcement agency (whether in or outside Australia).
(10) This section does not, by implication, limit the ABA’s powers to refer other matters to a member of an Australian police force.
25 Deferral of action in order to avoid prejudicing a criminal investigation
(1) If:
(a) in the course of an investigation under Division 2, the ABA is satisfied that Internet content hosted outside Australia is prohibited Internet gambling content; and
(b) apart from this subsection, the ABA would be required to take action under subsection 24(1) in relation to the content; and
(c) a member of an Australian police force satisfies the ABA that the taking of that action should be deferred until the end of a particular period in order to avoid prejudicing a criminal investigation;
the ABA may defer taking that action until the end of that period.
(2) Subsection (1) has effect despite anything in section 24.
26 Anti‑avoidance—notified Internet content
If:
(a) particular Internet content has been notified to Internet service providers as mentioned in paragraph 24(1)(b); and
(b) the ABA is satisfied that Internet content (the similar Internet content) that is the same as, or substantially similar to, the first‑mentioned Internet content is being hosted outside Australia; and
(c) the ABA is satisfied that the similar Internet content is prohibited Internet gambling content; and
(d) a code registered, and/or standard determined, under Part 4 deals exclusively with the designated Internet gambling matters;
the ABA must notify the similar Internet content to Internet service providers under the designated notification scheme set out in the code or standard, as the case may be.
27 Anti‑avoidance—special access‑prevention notice
(1) If:
(a) a standard access‑prevention notice relating to particular Internet content is applicable to a particular Internet service provider; and
(b) the ABA is satisfied that the Internet service provider is supplying an Internet carriage service that enables end‑users to access Internet content (the similar Internet content) that is the same as, or substantially similar to, the Internet content identified in the standard access‑prevention notice; and
(c) the ABA is satisfied that the similar Internet content is prohibited Internet gambling content;
the ABA may give the provider a written notice (special access‑prevention notice) directing the provider to take all reasonable steps to prevent end‑users from accessing the similar Internet content at any time when the standard access‑prevention notice is in force.
Note: The ABA may be taken to have given a notice under this section—see section 31.
(2) For the purposes of subsection (1), in determining whether particular steps are reasonable, regard must be had to:
(a) the technical and commercial feasibility of taking the steps; and
(b) the matters set out in subsection 4(3) of the Broadcasting Services Act 1992.
(3) Subsection (2) does not, by implication, limit the matters to which regard must be had.
Recognised alternative access‑prevention arrangements
(4) An Internet service provider is not required to comply with a special access‑prevention notice in relation to a particular end‑user if access by the end‑user is subject to a recognised alternative access‑prevention arrangement (as defined by subsection 24(5)) that is applicable to the end‑user.
28 Compliance with access‑prevention notices
Standard access‑prevention notice
(1) An Internet service provider must comply with a standard access‑prevention notice that applies to the provider as soon as practicable, and in any event by 6 pm on the next business day, after the notice was given to the provider.
Special access‑prevention notice
(2) An Internet service provider must comply with a special access‑prevention notice that applies to the provider as soon as practicable, and in any event by 6 pm on the next business day, after the notice was given to the provider.
Note: For enforcement, see Part 5.
29 Notification of Internet content
Internet content may be notified in accordance with this Division by:
(a) setting out the content; or
(b) describing the content; or
(c) in any other way.
30 Application of notifications under this Division
A notification under this Division applies to particular Internet content only to the extent to which the content is accessed, or available for access, from an Internet site, or a distinct part of an Internet site, specified in the notification.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
31 ABA may be taken to have issued access‑prevention notices
(1) Subject to subsection (2), the ABA may, by written instrument, formulate a scheme:
(a) in the nature of a scheme for substituted service; and
(b) under which the ABA is taken, for the purposes of this Act, to have done any or all of the following:
(i) given each Internet service provider a standard access‑prevention notice under paragraph 24(1)(c);
(ii) given each Internet service provider a special access‑prevention notice under section 27.
(2) It is a minimum requirement for a scheme formulated under subsection (1) that each Internet service provider be alerted by electronic means to the existence of a notice.
Note: For example, it is not sufficient for the ABA to make notices available on the Internet (with or without security measures) without notifying Internet service providers that a notice has been issued.
(3) Paragraph 24(1)(c) has effect, in relation to a scheme under subsection (1), as if the reference in that paragraph to each Internet service provider known to the ABA were a reference to each Internet service provider.
(4) An instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Part 4—Complaints system: industry code and industry standard
The following is a simplified outline of this Part.
• A body or association that represents Internet service providers may develop an industry code that deals with the designated Internet gambling matters (see section 35).
• An industry code may be registered by the ABA.
• Compliance with an industry code is voluntary unless the ABA directs a particular Internet service provider to comply with the code.
• The ABA has a reserve power to make an industry standard if there is no industry code or if an industry code is deficient.
• Compliance with an industry standard is mandatory.
For the purposes of this Act, an industry code is a code developed under this Part (whether or not in response to a request under this Part).
For the purposes of this Act, an industry standard is a standard determined under this Part.
35 Designated Internet gambling matters
For the purposes of this Act, the following matters are designated Internet gambling matters:
(a) the formulation of a designated notification scheme;
(b) procedures to be followed by Internet service providers in dealing with Internet content notified under paragraph 24(1)(b) or section 26 (for example, procedures relating to the provision of regularly updated Internet content filtering software to subscribers).
Division 3—General principles relating to industry code and industry standard
36 Statement of regulatory policy
(1) The Parliament intends that a body or association that the ABA is satisfied represents Internet service providers should develop a single code (industry code) that:
(a) is to apply to Internet service providers; and
(b) deals exclusively with the designated Internet gambling matters.
(2) The Parliament intends that an industry code developed, or industry standard determined, under this Part is to be in addition to any codes developed, or standards determined, under Schedule 5 to the Broadcasting Services Act 1992.
(3) The Parliament intends that this Part does not, by implication, limit the matters that may be dealt with by any codes developed, or standards determined, under Schedule 5 to the Broadcasting Services Act 1992.
(4) The Parliament intends that the ABA should make reasonable efforts to ensure that either:
(a) an industry code is registered under this Part before Part 3 commences; or
(b) an industry standard is registered under this Part before Part 3 commences.
37 Matters that must be dealt with by industry code and industry standard
Object
(1) The object of this section is to set out the matters to be dealt with by an industry code or industry standard.
Matters that must be dealt with by industry code or industry standard
(2) The Parliament intends that, for Internet service providers, there should be:
(a) an industry code or an industry standard that deals with; or
(b) an industry code and an industry standard that together deal with;
the designated Internet gambling matters.
Designated alternative access‑prevention arrangements
(3) An industry code or an industry standard may provide that an Internet service provider is not required to deal with Internet content notified under paragraph 24(1)(b) or section 26 by taking steps to prevent particular end‑users from accessing the content if access by the end‑users is subject to an arrangement that is declared by the code or standard to be a designated alternative access‑prevention arrangement for the purposes of the application of this section to those end‑users.
(4) An industry code developed by a body or association must not declare that a specified arrangement is a designated alternative access‑prevention arrangement for the purposes of the application of this section to one or more specified end‑users unless the body or association is satisfied that the arrangement is likely to provide a reasonably effective means of preventing access by those end‑users to prohibited Internet gambling content.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(5) An industry standard determined by the ABA must not declare that a specified arrangement is a designated alternative access‑prevention arrangement for the purposes of the application of this section to one or more specified end‑users unless the ABA is satisfied that the arrangement is likely to provide a reasonably effective means of preventing access by those end‑users to prohibited Internet gambling content.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(6) The following are examples of arrangements that could be declared to be designated alternative access‑prevention arrangements:
(a) an arrangement that involves the use of regularly updated Internet content filtering software;
(b) an arrangement that involves the use of a filtered Internet carriage service.
(7) For the purposes of this Act, if an industry code:
(a) deals to any extent with procedures to be followed by Internet service providers in dealing with Internet content notified under paragraph 24(1)(b) or section 26; and
(b) makes provision as mentioned in subsection (3);
then:
(c) the code is taken to deal with the matter set out in paragraph 35(b); and
(d) the code is taken to be consistent with subsection (2).
(8) For the purposes of this Act, if an industry standard:
(a) deals to any extent with procedures to be followed by Internet service providers in dealing with Internet content notified under paragraph 24(1)(b) or section 26; and
(b) makes provision as mentioned in subsection (3);
then:
(c) the standard is taken to deal with the matter set out in paragraph 35(b); and
(d) the standard is taken to be consistent with subsection (2).
38 Registration of industry code
(1) This section applies if:
(a) the ABA is satisfied that a body or association represents Internet service providers; and
(b) that body or association develops an industry code that applies to Internet service providers and deals exclusively with the designated Internet gambling matters; and
(c) the body or association gives a copy of the code to the ABA; and
(d) the ABA is satisfied that the code provides appropriate community safeguards for the designated Internet gambling matters; and
(e) the ABA is satisfied that, before giving the copy of the code to the ABA:
(i) the body or association published a draft of the code and invited members of the public to make submissions to the body or association about the draft within a specified period; and
(ii) the body or association gave consideration to any submissions that were received from members of the public within that period; and
(f) the ABA is satisfied that, before giving the copy of the code to the ABA:
(i) the body or association published a draft of the code and invited Internet service providers to make submissions to the body or association about the draft within a specified period; and
(ii) the body or association gave consideration to any submissions that were received from Internet service providers within that period.
(2) The ABA must register the code by including it in the Register of industry codes kept under section 53.
(3) A period specified under subparagraph (1)(e)(i) or (1)(f)(i) must run for at least 30 days.
(4) If:
(a) an industry code (the new code) is registered under this Part; and
(b) the new code is expressed to replace another industry code;
the other code ceases to be registered under this Part when the new code is registered.
(1) If the ABA is satisfied that a body or association represents Internet service providers, the ABA may, by written notice given to the body or association, request the body or association to:
(a) develop an industry code that applies to Internet service providers and deals exclusively with the designated Internet gambling matters; and
(b) give the ABA a copy of the code within the period specified in the notice.
(2) The period specified in a notice under subsection (1) must run for at least 120 days.
(3) The ABA must not make a request under subsection (1) unless the ABA is satisfied that, in the absence of the request, it is unlikely that an industry code would be developed within a reasonable period.
(4) The ABA may vary a notice under subsection (1) by extending the period specified in the notice.
(5) Subsection (4) does not, by implication, limit the application of subsection 33(3) of the Acts Interpretation Act 1901.
(6) A notice under subsection (1) may specify indicative targets for achieving progress in the development of the code (for example, a target of 60 days to develop a preliminary draft of the code).
40 Publication of notice where no body or association represents Internet service providers
(1) If the ABA is satisfied that Internet service providers are not represented by a body or association, the ABA may publish a notice in the Gazette stating that, if such a body or association were to come into existence within a specified period, the ABA would be likely to give a notice to that body or association under subsection 39(1).
(2) The period specified in a notice under subsection (1) must run for at least 60 days.
41 Replacement of industry code
(1) Changes to an industry code are to be achieved by replacing the code instead of varying the code.
(2) If the replacement code differs only in minor respects from the original code, section 38 has effect, in relation to the registration of the code, as if paragraphs 38(1)(e) and (f) had not been enacted.
Note: Paragraphs 38(1)(e) and (f) deal with submissions about draft codes.
42 Compliance with industry code
(1) If:
(a) a person is an Internet service provider; and
(b) the ABA is satisfied that the person has contravened, or is contravening, an industry code that is registered under this Part;
the ABA may, by written notice given to the person, direct the person to comply with the industry code.
(2) A person must comply with a direction under subsection (1).
Note: For enforcement, see Part 5.
43 Formal warnings—breach of industry code
The ABA may issue a formal warning if an Internet service provider contravenes an industry code registered under this Part.
44 ABA may determine an industry standard if a request for an industry code is not complied with
(1) This section applies if:
(a) the ABA has made a request under subsection 39(1) in relation to the development of a code that is to:
(i) apply to Internet service providers; and
(ii) deal exclusively with the designated Internet gambling matters; and
(b) any of the following conditions is satisfied:
(i) the request is not complied with;
(ii) if indicative targets for achieving progress in the development of the code were specified in the notice of request—any of those indicative targets were not met;
(iii) the request is complied with, but the ABA subsequently refuses to register the code.
(2) The ABA may, by written instrument, determine a standard that applies to Internet service providers in relation to the designated Internet gambling matters. A standard under this subsection is to be known as an industry standard.
(3) Before determining an industry standard under this section, the ABA must consult the body or association to whom the request mentioned in paragraph (1)(a) was made.
Note: See also section 52.
(4) A standard under subsection (2) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(5) The Minister may give the ABA a written direction as to the exercise of its powers under this section.
45 ABA may determine industry standard where no industry body or association formed
(1) This section applies if:
(a) the ABA is satisfied that Internet service providers are not represented by a body or association; and
(b) the ABA has published a notice under subsection 40(1); and
(c) that notice states that, if such a body or association were to come into existence within a particular period, the ABA would be likely to give a notice to that body or association under subsection 39(1); and
(d) no such body or association comes into existence within that period.
(2) The ABA may, by written instrument, determine a standard that applies to Internet service providers and deals exclusively with the designated Internet gambling matters. A standard under this subsection is to be known as an industry standard.
Note: See also section 52.
(3) A standard under subsection (2) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(4) The Minister may give the ABA a written direction as to the exercise of its powers under this section.
46 ABA may determine industry standard—total failure of industry code
(1) This section applies if:
(a) an industry code that:
(i) applies to Internet service providers; and
(ii) deals exclusively with the designated Internet gambling matters;
has been registered under this Part for at least 180 days; and
(b) the ABA is satisfied that the code is totally deficient (as defined by subsection (7)); and
(c) the ABA has given the body or association that developed the code a written notice requesting that deficiencies in the code be addressed within a specified period; and
(d) that period ends and the ABA is satisfied that it is necessary or convenient for the ABA to determine a standard that applies to Internet service providers and deals exclusively with the designated Internet gambling matters.
(2) The period specified in a notice under paragraph (1)(c) must run for at least 30 days.
(3) The ABA may, by written instrument, determine a standard that applies to Internet service providers and deals exclusively with the designated Internet gambling matters. A standard under this subsection is to be known as an industry standard.
(4) If the ABA is satisfied that a body or association represents Internet service providers, the ABA must consult the body or association before determining an industry standard under subsection (3).
Note: See also section 52.
(5) A standard under subsection (3) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(6) The industry code ceases to be registered under this Part on the day on which the industry standard comes into force.
(7) For the purposes of this section, an industry code that applies to Internet service providers and deals exclusively with the designated Internet gambling matters is totally deficient if, and only if, the code is not operating to provide appropriate community safeguards in relation to the designated Internet gambling matters.
(8) The Minister may give the ABA a written direction as to the exercise of its powers under this section.
47 ABA may determine industry standard—partial failure of industry code
(1) This section applies if:
(a) an industry code that:
(i) applies to Internet service providers; and
(ii) deals exclusively with the designated Internet gambling matters; and
has been registered under this Part for at least 180 days; and
(b) section 46 does not apply to the code; and
(c) the ABA is satisfied that the code is deficient (as defined by subsection (7)) to the extent to which the code deals with one of the designated Internet gambling matters (the deficient matter); and
(d) the ABA has given the body or association that developed the code a written notice requesting that deficiencies in the code be addressed within a specified period; and
(e) that period ends and the ABA is satisfied that it is necessary or convenient for the ABA to determine a standard that applies to Internet service providers and deals with the deficient matter.
(2) The period specified in a notice under paragraph (1)(c) must run for at least 30 days.
(3) The ABA may, by written instrument, determine a standard that applies to Internet service providers and deals with the deficient matter. A standard under this subsection is to be known as an industry standard.
(4) If the ABA is satisfied that a body or association represents Internet service providers, the ABA must consult the body or association before determining an industry standard under subsection (3).
Note: See also section 52.
(5) A standard under subsection (3) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(6) On and after the day on which the industry standard comes into force, the industry code has no effect to the extent to which it deals with the deficient matter. However, this subsection does not affect:
(a) the continuing registration of the remainder of the industry code; or
(b) any investigation, proceeding or remedy in respect of a contravention of the industry code or section 42 that occurred before that day.
(7) For the purposes of this section, an industry code that applies to Internet service providers and deals exclusively with the designated Internet gambling matters is deficient to the extent to which it deals with a particular one of the designated Internet gambling matters if, and only if, the code is not operating to provide appropriate community safeguards in relation to that matter.
(8) The Minister may give the ABA a written direction as to the exercise of its powers under this section.
48 Compliance with industry standard
If:
(a) an industry standard that applies to Internet service providers is registered under this Part; and
(b) a person is an Internet service provider;
the person must comply with the industry standard.
Note: For enforcement, see Part 5.
49 Formal warnings—breach of industry standard
The ABA may issue a formal warning if an Internet service provider contravenes an industry standard registered under this Part.
50 Variation of industry standard
(1) The ABA may, by written instrument, vary an industry standard that applies to Internet service providers if it is satisfied that it is necessary or convenient to do so to provide appropriate community safeguards in relation to either or both of the designated Internet gambling matters.
Note: See also section 52.
(2) An instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
51 Revocation of industry standard
(1) The ABA may, by written instrument, revoke an industry standard.
(2) If:
(a) an industry code is registered under this Part; and
(b) the code is expressed to replace an industry standard;
the industry standard is revoked when the code is registered.
(3) An instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
52 Public consultation on industry standard
(1) Before determining or varying an industry standard, the ABA must:
(a) cause to be published in a newspaper circulating in each State a notice:
(i) stating that the ABA has prepared a draft of the industry standard or variation; and
(ii) stating that free copies of the draft will be made available to members of the public during normal office hours throughout the period specified in the notice; and
(iii) specifying the place or places where the copies will be available; and
(iv) inviting interested persons to give written comments about the draft to the ABA within the period specified under subparagraph (ii); and
(b) make copies of the draft available in accordance with the notice.
(2) The period specified under subparagraph (1)(a)(ii) must run for at least 30 days after the publication of the notice.
(3) Subsection (1) does not apply to a variation if the variation is of a minor nature.
(4) If interested persons have given comments in accordance with a notice under subsection (1), the ABA must have due regard to those comments in determining or varying the industry standard, as the case may be.
(5) In this section:
State includes the Northern Territory and the Australian Capital Territory.
Division 6—Industry code and industry standard to be included on a Register
53 Industry code and industry standard to be included on a Register
(1) The ABA is to maintain a Register in which the ABA includes:
(a) all industry codes required to be registered under this Part; and
(b) all industry standards; and
(c) all requests made under section 39; and
(d) all notices under section 40; and
(e) all directions under section 42.
(2) The Register may be maintained by electronic means.
(3) The Register is to be made available for inspection on the Internet.
Part 5—Complaints system: online provider rules
For the purposes of this Act, each of the following is an online provider rule:
(a) the rule set out in subsection 28(1);
(b) the rule set out in subsection 28(2);
(c) the rule set out in subsection 42(2);
(d) the rule set out in section 48.
55 Compliance with online provider rules
A person is guilty of an offence if:
(a) an online provider rule is applicable to the person; and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes the rule.
Penalty: 50 penalty units.
Note: See also section 57.
56 Remedial directions—breach of online provider rules
(1) This section applies if an Internet service provider has contravened, or is contravening, an online provider rule.
(2) The ABA may give the provider a written direction requiring the provider to take specified action directed towards ensuring that the provider does not contravene the rule, or is unlikely to contravene the rule, in the future.
(3) The following are examples of the kinds of direction that may be given to an Internet service provider under subsection (2):
(a) a direction that the provider implement effective administrative systems for monitoring compliance with an online provider rule;
(b) a direction that the provider implement a system designed to give the provider’s employees, agents and contractors a reasonable knowledge and understanding of the requirements of an online provider rule, in so far as those requirements affect the employees, agents or contractors concerned.
(4) A person is guilty of an offence if:
(a) the person is subject to a direction under subsection (2); and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes the direction.
Penalty for contravention of this subsection: 50 penalty units.
Note: See also section 57.
(1) A person who contravenes section 55 or subsection 56(4) is guilty of a separate offence in respect of each day (including a day of conviction for the offence or any later day) during which the contravention continues.
(2) If an offence against this Part is a continuing offence, the maximum penalty for each day that the offence continues is 10% of the maximum penalty that could be imposed in respect of the principal offence.
58 Formal warnings—breach of online provider rules
The ABA may issue a formal warning if a person contravenes an online provider rule.
59 Federal Court may order a person to cease supplying Internet carriage services
(1) If the ABA is satisfied that a person who is an Internet service provider is supplying an Internet carriage service otherwise than in accordance with an online provider rule, the ABA may apply to the Federal Court for an order that the person cease supplying that Internet carriage service.
(2) If the Federal Court is satisfied, on such an application, that the person is supplying an Internet carriage service otherwise than in accordance with the online provider rule, the Federal Court may order the person to cease supplying that Internet carriage service.
Part 6—Complaints system: protection from civil proceedings
60 Protection from civil proceedings
(1) Civil proceedings do not lie against an Internet service provider in respect of anything done by the provider in compliance with:
(a) a code registered under Part 4 of this Act; or
(b) a standard determined under Part 4 of this Act;
in so far as the code or standard deals with the procedures referred to in paragraph 35(b).
(2) Civil proceedings do not lie against an Internet service provider in respect of anything done by the provider in compliance with section 28.
Part 7—Complaints system: review of decisions
(1) An application may be made to the Tribunal for a review of any of the following decisions made by the ABA:
(a) a decision to give an Internet service provider a standard access‑prevention notice;
(b) a decision to give an Internet service provider a special access‑prevention notice;
(c) a decision under section 42 or 56 to:
(i) give a direction to an Internet service provider; or
(ii) vary a direction that is applicable to an Internet service provider; or
(iii) refuse to revoke a direction that is applicable to an Internet service provider.
(2) An application under subsection (1) may only be made by the Internet service provider concerned.
(3) An application may be made to the Tribunal for a review of a decision of the ABA under section 38 to refuse to register a code.
(4) An application under subsection (3) may only be made by the body or association that developed the code.
(5) If the ABA makes a decision that is reviewable under this section, the ABA is to include in the document by which the decision is notified:
(a) a statement setting out the reasons for the decision; and
(b) a statement to the effect that an application may be made to the Tribunal for a review of the decision.
(6) In this section:
Tribunal means:
(a) before the commencement of Parts 4 to 10 of the Administrative Review Tribunal Act 2001—the Administrative Appeals Tribunal; and
(b) after the commencement of Parts 4 to 10 of the Administrative Review Tribunal Act 2001—the Administrative Review Tribunal.
Part 7A—Prohibition of advertising of interactive gambling services
Division 1—Interpretation: definitions
In this Part, unless the contrary intention appears:
broadcast means transmit by means of a broadcasting service.
broadcasting service means a service that delivers television programs or radio programs to persons having equipment appropriate for receiving that service, whether the delivery uses the radiofrequency spectrum, cable, optical fibre, satellite or any other means or a combination of those means, but does not include:
(a) a datacasting service; or
(b) a service that delivers programs using the Internet, where the delivery does not use the broadcasting services bands.
broadcasting services bands has the same meaning as in the Broadcasting Services Act 1992.
datacast means transmit by means of a datacasting service.
display includes continue to display.
exempt library means:
(a) a public library; or
(b) a library of a tertiary educational institution; or
(c) a library of an authority of the Commonwealth or of a State or Territory.
government or political matters means government or political matters relating to any level of government in Australia, and includes any of the following matters:
(a) participation in, association with and communications in relation to any election or appointment to public office;
(b) political views or public conduct relating to activities that have become the subject of political debate;
(c) the performance, conduct, capacity or fitness for office of a person elected or appointed to, or seeking election or appointment to, any public office;
(d) the actions or policies, or proposed actions or policies, of any government in Australia or any Australian political party.
interactive gambling service advertisement has the meaning given by Division 2.
interactive gambling service provider means a person who provides an interactive gambling service.
periodical means an issue (however described) of a newspaper, magazine, journal, newsletter, or other similar publication, issues of which are published at regular or irregular intervals.
program has the same meaning as in the Broadcasting Services Act 1992.
public place means a place, or a part of a place, to which the public, or a section of the public, ordinarily has access, whether or not by payment or by invitation (including, for example, a shop, restaurant, hotel, cinema or club).
publish:
(a) in relation to an interactive gambling service advertisement, has the meaning given by Division 3; and
(b) in relation to something other than an interactive gambling service advertisement, has a meaning equally as broad as it has in relation to an interactive gambling service advertisement.
section of the public includes:
(a) the members of a particular club, society or organisation; and
(b) a group consisting only of persons with a common workplace or a common employer.
workplace means premises in which employees or contractors work, other than any part of such premises that is primarily used as a private dwelling.
Division 2—Interpretation: interactive gambling service advertisement
61BA Basic meaning of interactive gambling service advertisement
(1) For the purposes of this Part, an interactive gambling service advertisement is any writing, still or moving picture, sign, symbol or other visual image, or any audible message, or any combination of 2 or more of those things, that gives publicity to, or otherwise promotes or is intended to promote:
(a) an interactive gambling service; or
(b) interactive gambling services in general; or
(c) the whole or part of a trade mark in respect of an interactive gambling service; or
(d) a domain name or URL that relates to an interactive gambling service; or
(e) any words that are closely associated with an interactive gambling service (whether also closely associated with other kinds of services or products).
(2) This section has effect subject to sections 61BB, 61BC, 61BD, 61BE, 61BF and 61BG.
61BB Exception—political communication
(1) To avoid doubt, if:
(a) something (the advertisement) does not promote, and is not intended to promote, any particular interactive gambling service or services; and
(b) the advertisement relates solely to government or political matters;
the advertisement is not an interactive gambling service advertisement for the purposes of this Part.
(2) Without limiting paragraph (1)(a), the use in an advertisement of the whole name of an interactive gambling service provider does not, of itself, constitute promotion of an interactive gambling service or interactive gambling services for the purposes of paragraph (1)(a).
(3) Subsection (2) does not apply in relation to the use of a name referred to in that subsection in a way prohibited by regulations made for the purposes of this subsection.
(4) Section 61BA does not apply to the extent (if any) that it would infringe any doctrine of implied freedom of political communication.
61BC Exception—Internet sites etc. and business documents
Words, signs or symbols that appear:
(a) on the Internet site of an interactive gambling service that is provided to customers using an Internet carriage service, or on or at an equivalent point of provision of any other interactive gambling service; or
(b) as part of the standard wording of an invoice, statement, order form, letterhead, business card, cheque, manual, or other document ordinarily used in the normal course of the business of an interactive gambling service provider (whether or not the document is in electronic form);
do not, when so appearing, constitute an interactive gambling service advertisement (but this does not prevent a still or moving screen shot of an Internet site or equivalent point of provision referred to in paragraph (a), or a still or moving picture or other visual image of a document referred to in paragraph (b), from being an interactive gambling service advertisement).
61BD Exception—premises of providers
Words, signs or symbols that appear in or on land or buildings occupied by an interactive gambling service provider do not, when so appearing, constitute an interactive gambling service advertisement (but this does not prevent a still or moving picture, or other visual image, of words, signs or symbols that so appear from being an interactive gambling service advertisement).
61BE Exceptions—management advertisements etc.
To avoid doubt, none of the following constitutes an interactive gambling service advertisement:
(a) the doing of anything that is, or apart from this Part would be, required to be done by any other law of the Commonwealth or by any law of a State or Territory;
(b) an advertisement (for example, an advertisement for staff or calling for tenders), relating to the internal management of the business of an interactive gambling service provider, that does not promote an interactive gambling service;
(c) the taking of any action to prevent persons becoming victims of fraud or any other dishonest or unethical conduct.
61BF Exception—products or services having the same name as an interactive gambling service
(1) If:
(a) apart from this section, something (the advertisement) that relates to a product, or a service, that is not an interactive gambling service would, technically, be an interactive gambling service advertisement because the name, or part of the name, of the product or service is the same as, or substantially similar to, the name, or part of the name, of:
(i) an interactive gambling service; or
(ii) an interactive gambling service provider; and
(b) the manufacturer, distributor or retailer of the product, or the provider of the service, is not associated in any way with the interactive gambling service provider concerned;
then, despite section 61BA, the advertisement is not an interactive gambling service advertisement for the purposes of this Part.
Related bodies corporate taken to be associated with each other
(2) Without limiting the circumstances in which 2 persons would, apart from this subsection, be taken to be associated with each other for the purposes of subsection (1), 2 bodies corporate that are related to each other are taken to be associated with each other for the purposes of that subsection.
(3) For the purposes of subsection (2), the question whether 2 bodies corporate are related to each other is to be determined in the same way as the question would be determined under the Corporations Law.
61BG Exception—anti‑gambling advertisements
If:
(a) apart from this section, something (the advertisement) would, technically, be an interactive gambling service advertisement; and
(b) it is clear from the advertisement that its sole or principal purpose is to discourage the use of gambling services or particular kinds of gambling services;
then, despite section 61BA, the advertisement is not an interactive gambling service advertisement for the purposes of this Part.
In this Division:
words includes abbreviations, initials and numbers.
Division 3—Interpretation: publication of interactive gambling service advertisement
61CA Basic meaning of publish an interactive gambling service advertisement
(1) For the purposes of this Part, a person publishes an interactive gambling service advertisement if the person does any of the following things:
(a) the person includes the advertisement, or something that contains the advertisement, on an Internet site;
(b) the person includes the advertisement in a document (including, for example, a newspaper, magazine, program, leaflet or ticket) that is available, or distributed, to the public or a section of the public;
(c) the person includes the advertisement in a film, video, television program or radio program that is, or is intended to be, seen or heard by the public or a section of the public;
(d) the person:
(i) sells, hires or supplies the advertisement, or something containing the advertisement, to the public or a section of the public; or
(ii) offers the advertisement, or something containing the advertisement, for sale or supply to, or hire by, the public or a section of the public;
(e) the person displays, screens or plays the advertisement, or something that contains the advertisement, so that it can be seen or heard in or from:
(i) a public place; or
(ii) public transport; or
(iii) a workplace;
(f) the person otherwise:
(i) brings the advertisement, or something that contains the advertisement, to the notice of; or
(ii) disseminates the advertisement, or something that contains the advertisement, to;
the public, or a section of the public, by any means (including, for example, by means of a film, video, computer disk or electronic medium).
(2) This section has effect subject to sections 61CB, 61CC, 61CD, 61CE and 61CF.
61CB Publish does not include broadcast or datacast
For the purposes of this Part, the broadcasting or datacasting of an interactive gambling service advertisement by a person does not amount to the publication of the advertisement by the person.
61CC Exception—trade communications
For the purposes of this Part, the communication of information that is or includes an interactive gambling service advertisement to a group of people all of whom are involved in the provision of interactive gambling services, does not, of itself, amount to a publication of the interactive gambling service advertisement.
61CD Exception—advertisements in telephone directories
(1) For the purposes of this Part, the publication of the name of an interactive gambling service provider in a telephone directory does not, of itself, amount to the publication of an interactive gambling service advertisement.
(2) Subsection (1) does not apply if:
(a) the publication is on the Internet; and
(b) the entry for the provider contains a link to an Internet site for the provider that relates to an interactive gambling service.
61CE Exception—ordinary activities of exempt libraries
Nothing that a person does for the purposes of the ordinary activities of an exempt library amounts, for the purposes of this Part, to a publication of an interactive gambling service advertisement.
61CF Exception—acknowledgments of assistance or support
For the purposes of this Part, the publication of an acknowledgment of assistance or support does not amount to the publication of an interactive gambling service advertisement if it complies with regulations made for the purposes of this section that permit the publication of such acknowledgments.
Division 4—Broadcasting or datacasting of interactive gambling service advertisements in Australia
61DA Interactive gambling service advertisements not to be broadcast or datacast in Australia
(1) A person is guilty of an offence if:
(a) the person broadcasts or datacasts an interactive gambling service advertisement in Australia; and
(b) the broadcast or datacast is not permitted by section 61DB; and
(c) the broadcast or datacast is not permitted by section 61DC.
Penalty: 120 penalty units.
(2) A person is guilty of an offence if:
(a) the person authorises or causes an interactive gambling service advertisement to be broadcast or datacast in Australia; and
(b) the broadcast or datacast is not permitted by section 61DB; and
(c) the broadcast or datacast is not permitted by section 61DC.
Penalty for contravention of this subsection: 120 penalty units.
61DB Accidental or incidental broadcast or datacast permitted
(1) A person may broadcast or datacast an interactive gambling service advertisement if:
(a) the person broadcasts or datacasts the advertisement as an accidental or incidental accompaniment to the broadcasting or datacasting of other matter; and
(b) the person does not receive any direct or indirect benefit (whether financial or not) for broadcasting or datacasting the advertisement (in addition to any direct or indirect benefit that the person receives for broadcasting or datacasting the other matter).
(2) Subsection (1) only has effect for the purposes of this Part.
61DC Broadcast or datacast of advertisements during flights of aircraft
(1) A person may broadcast or datacast an interactive gambling service advertisement in an aircraft during a flight of the aircraft unless the flight begins at a place in Australia and is intended to end at another place in Australia.
(2) For the purposes of subsection (1), each sector of a flight of an aircraft is taken to be a separate flight.
(3) Subsection (1) only has effect for the purposes of this Part.
Division 5—Publication of interactive gambling service advertisements in Australia
61EA Interactive gambling service advertisements not to be published in Australia
(1) A person is guilty of an offence if:
(a) the person publishes an interactive gambling service advertisement in Australia; and
(b) the publication is not permitted by section 61EB; and
(c) the publication is not permitted by section 61EC; and
(d) the publication is not permitted by section 61ED; and
(e) the publication is not permitted by section 61EE; and
(f) the publication is not permitted by section 61EF.
Penalty: 120 penalty units.
(2) A person is guilty of an offence if:
(a) the person authorises or causes an interactive gambling service advertisement to be published in Australia; and
(b) the publication is not permitted by section 61EB; and
(c) the publication is not permitted by section 61EC; and
(d) the publication is not permitted by section 61ED; and
(e) the publication is not permitted by section 61EE; and
(f) the publication is not permitted by section 61EF.
Penalty: 120 penalty units.
(3) For the purposes of this section, an interactive gambling service advertisement that is included on an Internet site is taken to be published in Australia if, and only if:
(a) the site is accessed, or is available for access, by end‑users in Australia; and
(b) having regard to:
(i) the content of the site; and
(ii) the way the site is advertised or promoted;
it would be concluded that it is likely that a majority of persons who access the site are physically present in Australia.
61EB Periodicals distributed outside Australia—acts of publication permitted
(1) A person may do, with a periodical that contains an interactive gambling service advertisement, something that amounts to publishing the advertisement if the periodical is not principally intended for distribution or use in Australia.
(2) Subsection (1) only has effect for the purposes of this Part.
(1) A person may publish an interactive gambling service advertisement if:
(a) the advertisement is published in connection with a sporting or cultural event held, or to be held, in Australia; and
(b) the event is specified in a notice in force under subsection (2); and
(c) the publication of the advertisement complies with the conditions (if any) specified in the notice in accordance with subsection (3).
(2) For the purposes of subsection (1), the Minister may, by notice published in the Gazette, specify a sporting or cultural event to be held in Australia if, and only if:
(a) the Minister is satisfied that the event will be completed before 1 October 2003; and
(b) in a case where the event is to be held on or after 1 October 2001:
(i) a similar event held before that date (the earlier event) was specified in a notice under this subsection; and
(ii) no application to have another similar event specified in a notice under this subsection has been rejected since the earlier event; and
(c) the Minister is satisfied, having regard to the guidelines in force under subsection (5), that:
(i) the event is of international significance; and
(ii) failure to specify the event would be likely to result in the event not being held in Australia.
Note: Section 61FB provides for the making of applications to have events specified in notices under this subsection.
(3) In a notice under subsection (2) specifying an event, the Minister may also, having regard to the guidelines in force under subsection (5), specify conditions to be complied with in relation to the publication of interactive gambling service advertisements in connection with the event, being conditions related to:
(a) the content of the advertisements that may be published; or
(b) the number of advertisements, or the number of advertisements of a particular kind, that may be published, or that may be published in a particular way; or
(c) the way in which advertisements may be published.
(4) A notice under subsection (2):
(a) comes into force:
(i) on the day when it is published in the Gazette; or
(ii) if a later day is specified in the notice as the day when it is to come into force—on that later day; and
(b) stops being in force (unless it is revoked earlier):
(i) at the end of 3 years after it came into force; or
(ii) if an earlier day is specified in the notice as the day when it stops being in force—on that earlier day.
(5) The Minister may, by writing, determine guidelines for the purposes of subsections (2) and (3).
(6) An instrument under subsection (5) determining guidelines is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(7) Subsection (1) only has effect for the purposes of this Part.
61ED Accidental or incidental publication permitted
(1) A person may publish an interactive gambling service advertisement if:
(a) the person publishes the advertisement as an accidental or incidental accompaniment to the publication of other matter; and
(b) the person does not receive any direct or indirect benefit (whether financial or not) for publishing the advertisement (in addition to any direct or indirect benefit that the person receives for publishing the other matter).
(2) Subsection (1) only has effect for the purposes of this Part.
61EE Publication by person not receiving any benefit permitted
(1) A person may publish an interactive gambling service advertisement if:
(a) the publication is not in the course of the provision of interactive gambling services; and
(b) the person publishes the advertisement on the person’s own initiative; and
(c) the person does not receive any direct or indirect benefit (whether financial or not) for publishing the advertisement.
(2) Subsection (1) only has effect for the purposes of this Part.
61EF Publication of advertisements during flights of aircraft
(1) A person may publish an interactive gambling service advertisement in an aircraft during a flight of the aircraft unless the flight begins at a place in Australia and is intended to end at another place in Australia.
(2) For the purposes of subsection (1), each sector of a flight of an aircraft is taken to be a separate flight.
(3) Subsection (1) only has effect for the purposes of this Part.
61EG Defence—advertising under existing contracts or arrangements
(1) Subsections 61EA(1) and (2) do not apply to the publication of an interactive gambling service advertisement if:
(a) the publication was under a contract or arrangement that was:
(i) entered into before the commencement of section 1; and
(ii) for the sponsorship of an event, activity or service; and
(b) if the terms of the contract or arrangement, in so far as they relate to things other than the period to which it applies, were varied on or after the commencement of section 1 and before the publication—if the contract or arrangement had not been so varied, the publication could still be said to have been under the contract or arrangement; and
(c) the advertisement was published before 1 July 2003; and
(d) before the publication of the advertisement, each of the parties to the contract or arrangement notified the Minister, in writing, of:
(i) the date on which the contract or arrangement was entered into; and
(ii) particulars of the contract or arrangement in so far as it relates to the publication of interactive gambling service advertisements, including the circumstances of publication of the advertisements and the nature of the advertisements.
Note: The defendant bears an evidential burden in relation to the matters in subsection (1). See subsection 13.3(3) of the Criminal Code.
(2) For the purposes of this section, if:
(a) a party to a contract or arrangement of a kind referred to in paragraph (1)(a), for the purposes of publishing an interactive gambling service advertisement under the contract or arrangement, engaged (whether before or after the commencement of section 1) another person to do something that amounted to publishing the advertisement; and
(b) the other person did that thing and, consequently, published the advertisement;
the other person is taken to have published the advertisement under the contract or arrangement.
61EH Defence—display of signs before 1 July 2003
(1) Subsections 61EA(1) and (2) do not apply to the display of an interactive gambling service advertising sign if:
(a) the sign was displayed under a contract or arrangement entered into before the commencement of section 1; and
(b) if the terms of the contract or arrangement were varied on or after the commencement of section 1—if the contract or arrangement had not been so varied, the display of the sign could still be said to have been under the contract or arrangement; and
(c) the display of the sign was permitted by regulations made for the purposes of subsection (2).
Note: The defendant bears an evidential burden in relation to the matters in subsection (1). See subsection 13.3(3) of the Criminal Code.
(2) The regulations may permit the display, in specified circumstances, and before a specified date that is earlier than 1 July 2003, of interactive gambling service advertising signs of a specified size and composition.
(3) In this section:
interactive gambling service advertising sign means a sign that is or contains an interactive gambling service advertisement.
sign includes an electronic installation used to display advertisements.
Civil proceedings do not lie against a person for refusing or failing to broadcast, datacast or publish an interactive gambling service advertisement if the broadcast, datacast or publication is prohibited by this Part.
61FB Applications for the purposes of section 61EC
(1) A person may apply to the Minister to have a particular event specified in a notice under subsection 61EC(2).
(2) An application must be in writing and must set out the grounds on which the applicant thinks the Minister should grant it.
(3) If the Minister needs further information to decide an application, the Minister may ask the applicant to provide the information.
(4) The Minister must decide an application within 60 days after receiving it. This subsection has effect subject to subsections (5) to (7).
(5) If the Minister thinks that it will take longer to decide an application, the Minister may extend, by up to 60 days, the period for deciding it.
(6) An extension must be made by written notice given to the applicant within 60 days after the Minister receives the application concerned.
(7) If the Minister makes an extension, the Minister must decide the application concerned within the extended period.
(8) If the Minister has not decided an application before the end of the day by which the Minister is required to decide it, the Minister is taken to have decided, under section 61EC, to refuse the application at the end of that day.
(9) This section does not limit the power of the Minister to make a decision under section 61EC otherwise than because of an application under this section.
(1) An application may be made to the Tribunal for a review of a decision made under subsection 61EC(2) or 61EC(3).
(2) In this section:
Tribunal means:
(a) before the commencement of Parts 4 to 10 of the Administrative Review Tribunal Act 2001—the Administrative Appeals Tribunal; and
(b) after the commencement of Parts 4 to 10 of the Administrative Review Tribunal Act 2001—the Administrative Review Tribunal.
61FD Additional conditions for licences under the Broadcasting Services Act 1992
Commercial television broadcasting licence
(1) Each commercial television broadcasting licence is subject to the condition that the licensee will not, in contravention of this Part, broadcast an interactive gambling service advertisement.
Commercial radio broadcasting licence
(2) Each commercial radio broadcasting licence is subject to the condition that the licensee will not, in contravention of this Part, broadcast an interactive gambling service advertisement.
Community broadcasting licence
(3) Each community broadcasting licence is subject to the condition that the licensee will not, in contravention of this Part, broadcast an interactive gambling service advertisement.
Subscription television broadcasting licence
(4) Each subscription television broadcasting licence is subject to the condition that the licensee will not, in contravention of this Part, broadcast an interactive gambling service advertisement.
Provision of a broadcasting service under a class licence
(5) The provision by a person of a broadcasting service under a class licence is subject to the condition that the licensee will not, in contravention of this Part, broadcast an interactive gambling service advertisement.
Datacasting licence
(6) Each datacasting licence is subject to the condition that the licensee will not, in contravention of this Part, datacast an interactive gambling service advertisement.
Definitions
(7) In this section:
class licence has the same meaning as in the Broadcasting Services Act 1992.
commercial radio broadcasting licence has the same meaning as in the Broadcasting Services Act 1992.
commercial television broadcasting licence has the same meaning as in the Broadcasting Services Act 1992.
community broadcasting licence has the same meaning as in the Broadcasting Services Act 1992.
subscription television broadcasting licence has same meaning as in the Broadcasting Services Act 1992.
(1) As soon as practicable after each 31 December, the Minister must cause to be prepared a report on:
(a) the number and nature of any contraventions of this Part occurring in the preceding 12 months; and
(b) any action taken by the Minister or a Commonwealth agency in response to each contravention.
(2) A person who prepares a report under subsection (1) must give a copy to the Minister.
(3) The Minister must cause copies of the report to be laid before each House of the Parliament within 15 sitting days of that House after its receipt by the Minister.
62 Application of Criminal Code
Chapter 2 of the Criminal Code (except Part 2.5) applies to an offence against this Act.
63 Conduct by directors, employees and agents
Body corporate
(1) If, in proceedings for:
(a) an offence against this Act; or
(b) an ancillary offence relating to this Act;
it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show:
(c) that the conduct was engaged in by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; and
(d) that the director, employee or agent had the state of mind.
(2) Any conduct engaged in on behalf of a body corporate by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority is taken, for the purposes of a prosecution for:
(a) an offence against this Act; or
(b) an ancillary offence relating to this Act;
to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct.
Person other than a body corporate
(3) If, in proceedings for:
(a) an offence against this Act; or
(b) an ancillary offence relating to this Act;
it is necessary to establish the state of mind of a person other than a body corporate in relation to particular conduct, it is sufficient to show:
(c) that the conduct was engaged in by an employee or agent of the person within the scope of his or her actual or apparent authority; and
(d) that the employee or agent had the state of mind.
(4) Any conduct engaged in on behalf of a person other than a body corporate by an employee or agent of the person within the scope of his or her actual or apparent authority is taken, for the purposes of a prosecution for:
(a) an offence against this Act; or
(b) an ancillary offence relating to this Act;
to have been engaged in also by the first‑mentioned person unless the first‑mentioned person establishes that the first‑mentioned person took reasonable precautions and exercised due diligence to avoid the conduct.
(5) If:
(a) a person other than a body corporate is convicted of an offence; and
(b) the person would not have been convicted of the offence if subsections (3) and (4) had not been enacted;
the person is not liable to be punished by imprisonment for that offence.
State of mind
(6) A reference in subsection (1) or (3) to the state of mind of a person includes a reference to:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person’s reasons for the intention, opinion, belief or purpose.
Director
(7) A reference in this section to a director of a body corporate includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, a State or a Territory.
Ancillary offence relating to this Act
(8) A reference in this section to an ancillary offence relating to this Act is a reference to an offence created by section 6 of the Crimes Act 1914 or Part 2.4 of the Criminal Code that relates to this Act.
64 Service of summons or process on foreign corporations—criminal proceedings
(1) This section applies to a summons or process in any criminal proceedings under this Act, where:
(a) the summons or process is required to be served on a body corporate incorporated outside Australia; and
(b) the body corporate does not have a registered office or a principal office in Australia; and
(c) the body corporate has an agent in Australia.
(2) Service of the summons or process may be effected by serving it on the agent.
(3) Subsection (2) has effect in addition to section 28A of the Acts Interpretation Act 1901.
Note: Section 28A of the Acts Interpretation Act 1901 deals with the service of documents.
(4) In this section:
criminal proceeding includes a proceeding to determine whether a person should be tried for an offence.
In addition to other methods of giving a notice, a notice under this Act may be given by facsimile transmission.
66 Application of the Broadcasting Services Act 1992
(1) The following provisions of the Broadcasting Services Act 1992 have effect as if each reference in those provisions to that Act included a reference to this Act:
(a) section 3;
(b) subparagraph 5(1)(b)(ii);
(c) subsection 5(2);
(d) paragraph 158(n);
(e) paragraph 160(c);
(f) subsection 162(1);
(g) paragraph 168(2)(b);
(h) paragraph 171(2)(a);
(i) section 183;
(j) paragraph 187(2)(b).
(2) Paragraph 18(2)(j) of Schedule 3 to the Broadcasting Services Act 1992 does not apply to a notice given under this Act.
67 Additional ABA function—monitoring compliance with codes and standards
The ABA’s functions include monitoring compliance with codes and standards registered under Part 4.
(1) Before 1 July 2003, the Minister must cause to be conducted a review of the following matters:
(a) the operation of this Act;
(b) the growth of interactive gambling services;
(c) the social and commercial impact of interactive gambling services;
(d) the effect of the following provisions:
(i) paragraphs 5(3)(aa) and 6(3)(aa) and section 8A (excluded wagering services);
(ii) paragraphs 5(3)(ab) and 6(3)(ab) and section 8B (excluded gaming services);
(iii) paragraphs 5(3)(ac) and 6(3)(ac) and section 8C (services that have a designated broadcasting link);
(iv) paragraphs 5(3)(ad) and 6(3)(ad) and section 8C (services that have a designated datacasting link);
(v) paragraphs 5(3)(ae) and 6(3)(ae) and section 8D (excluded lottery services);
(e) the effectiveness of this Act in dealing with the social and commercial impact of interactive gambling services;
(f) technological developments that are relevant to the regulation of interactive gambling services;
(g) technological developments that may assist in dealing with problem gambling.
(2) The Minister must cause to be prepared a report of a review under subsection (1).
(3) The Minister must cause copies of the report to be laid before each House of the Parliament within 15 sitting days of that House after the completion of the preparation of the report.
(4) For the purposes of subsection (1), in determining whether a service is an interactive gambling service, subsection 5(3) is to be disregarded.
69 Operation of State and Territory laws
This Act is not intended to exclude or limit the operation of a law of a State or Territory to the extent that that law is capable of operating concurrently with this Act.
Agreements
(1) The regulations may provide:
(a) that an agreement has no effect to the extent to which it provides for the payment of money for the supply of an illegal interactive gambling service; and
(b) that civil proceedings do not lie against a person to recover money alleged to have been won from, or paid in connection with, an illegal interactive gambling service.
Deadline for making regulations
(2) The Minister must take all reasonable steps to ensure that regulations are made for the purposes of this section within 6 months after the commencement of Part 2.
Illegal interactive gambling service
(3) For the purposes of this section, an interactive gambling service is an illegal interactive gambling service if, and only if, the provision of the service contravenes a provision of this Act that creates an offence.
Definition
(4) In this section:
agreement means an agreement, whether made orally or in writing.
The Governor‑General may make regulations prescribing matters:
(a) required or permitted to be prescribed by this Act; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
[Minister’s second reading speech made in—
Senate on 5 April 2001
House of Representatives on 29 June 2001 a.m.]
(62/01)