An Act about interactive gambling, and for related purposes
Part 1—Introduction
1
Short title [see
Note 1]
This Act may be cited as the Interactive
Gambling Act 2001.
2
Commencement [see
Note 1]
(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.
3
Simplified outline
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 ACMA about prohibited Internet gambling content.
• If prohibited Internet
gambling content is hosted in Australia and the ACMA
considers that the complaint should be referred to an Australian police force,
the ACMA must refer the complaint to a member of an Australian police force.
• If prohibited Internet
gambling content is hosted outside Australia, the ACMA
must:
(a) if the ACMA
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 ACMA 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.
4
Definitions
In this Act, unless the contrary
intention appears:
access has the same meaning as in Schedule 5
to the Broadcasting Services Act 1992.
ACMA means the Australian Communications and
Media Authority.
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.
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 ACMA is taken, for
the purposes of this Act, to have notified each Internet service provider of a
matter or thing.
Note: For example, the ACMA 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.
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.
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.
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 are financial products within
the meaning of Chapter 7 of the Corporations Act 2001;
(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 are financial products within
the meaning of Chapter 7 of the Corporations Act 2001;
(b) an exempt service (see section 10).
8
Australian‑customer link
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.
8A
Excluded wagering service
(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.
8B
Excluded gaming service
(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.
8D
Excluded lottery service
(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.
9A
Designated country
(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.
10
Exempt services
(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.
11
Extended meaning of use
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.
12
Crown to be bound
(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).
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 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).
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
(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 ACMA
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 ACMA
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 ACMA 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 ACMA about the
matter.
18
Form of complaint
(1) A complaint under this Division is to be
in writing.
(2) However, the ACMA 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 ACMA
20
Investigation of complaints by the ACMA
(1) The ACMA 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 ACMA must not investigate the
complaint; and
(b) if the ACMA considers that the
complaint should be referred to an Australian police force—the ACMA 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 ACMA need not investigate a complaint
if:
(a) the ACMA is satisfied that the
complaint is:
(i) frivolous; or
(ii) vexatious; or
(iii) not made in good
faith; or
(b) the ACMA 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 ACMA must notify the complainant of
the results of an investigation under this section.
Termination of investigation
(6) The ACMA may terminate an investigation
under this section if the ACMA 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 ACMA 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 ACMA’s powers to refer other matters to a member of an Australian
police force.
21 ACMA
may investigate matters on its own initiative
The ACMA may investigate any of the
following matters if the ACMA 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.
22
Conduct of investigations
(1) An investigation under this Division is
to be conducted as the ACMA thinks fit.
(2) The ACMA 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 ACMA).
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 ACMA in connection with an
investigation under this Division.
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
(1) If, in the course of an investigation
under Division 2, the ACMA is satisfied that Internet content hosted
outside Australia is prohibited Internet gambling content, the ACMA must:
(a) if the ACMA 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 ACMA and the chief (however described) of an Australian
police force under which the ACMA 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 ACMA 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 ACMA 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 ACMA 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 ACMA 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 ACMA 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 ACMA’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 ACMA is satisfied that Internet content hosted
outside Australia is prohibited Internet gambling content; and
(b) apart from this subsection, the ACMA
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 ACMA 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 ACMA 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 ACMA 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 ACMA 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 ACMA 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 ACMA 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 ACMA is satisfied that the
similar Internet content is prohibited Internet gambling content;
the ACMA 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 ACMA 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 ACMA
may be taken to have issued access‑prevention notices
(1) Subject to subsection (2), the ACMA
may, by written instrument, formulate a scheme:
(a) in the nature of a scheme for
substituted service; and
(b) under which the ACMA 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 ACMA
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 ACMA 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
Division 1—Simplified outline
32
Simplified outline
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 ACMA.
• Compliance with an industry
code is voluntary unless the ACMA directs a particular Internet service
provider to comply with the code.
• The ACMA 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.
Division 2—Interpretation
33
Industry code
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).
34
Industry standard
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 ACMA 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 ACMA
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 ACMA
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 ACMA 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).
Division 4—Industry code
38
Registration of industry code
(1) This section applies if:
(a) the ACMA 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 ACMA; and
(d) the ACMA is satisfied that the
code provides appropriate community safeguards for the designated Internet
gambling matters; and
(e) the ACMA is satisfied that, before
giving the copy of the code to the ACMA:
(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 ACMA is satisfied that,
before giving the copy of the code to the ACMA:
(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 ACMA 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.
39 ACMA
may request code
(1) If the ACMA
is satisfied that a body or association represents Internet service providers,
the ACMA 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 ACMA 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 ACMA must not make a request under subsection (1)
unless the ACMA 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 ACMA 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 ACMA is satisfied that Internet
service providers are not represented by a body or association, the ACMA 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 ACMA
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 ACMA is satisfied that the
person has contravened, or is contravening, an industry code that is registered
under this Part;
the ACMA 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 ACMA
may issue a formal warning if an Internet service provider contravenes an
industry code registered under this Part.
Division 5—Industry standard
44 ACMA
may determine an industry standard if a request for an industry code is not
complied with
(1) This section applies if:
(a) the ACMA 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 ACMA subsequently refuses to register the code.
(2) The ACMA 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 ACMA 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 ACMA a written
direction as to the exercise of its powers under this section.
45 ACMA
may determine industry standard where no industry body or association formed
(1) This
section applies if:
(a) the ACMA is satisfied that
Internet service providers are not represented by a body or association; and
(b) the ACMA 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
ACMA 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 ACMA 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 ACMA a written
direction as to the exercise of its powers under this section.
46 ACMA
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 ACMA is satisfied that the
code is totally deficient (as defined by subsection (7)); and
(c) the ACMA 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 ACMA is
satisfied that it is necessary or convenient for the ACMA 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 ACMA 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 ACMA is satisfied that a body or
association represents Internet service providers, the ACMA 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 ACMA a written
direction as to the exercise of its powers under this section.
47 ACMA
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 ACMA 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 ACMA 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 ACMA is
satisfied that it is necessary or convenient for the ACMA 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 ACMA 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 ACMA is satisfied that a body or
association represents Internet service providers, the ACMA 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 ACMA 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 ACMA 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 ACMA 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 ACMA 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 ACMA must:
(a) cause to be published in a
newspaper circulating in each State a notice:
(i) stating that the ACMA
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 ACMA 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 ACMA 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 ACMA is to maintain a Register in
which the ACMA 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
54
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 ACMA 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.
57
Continuing offences
(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 ACMA 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 ACMA 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 ACMA 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
61
Review of decisions
(1) An application may be made to the
Tribunal for a review of any of the following decisions made by the ACMA:
(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 ACMA 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 ACMA makes a decision that is
reviewable under this section, the ACMA 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
61AA
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, 61BG and 61BGA.
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.
61BGA
Exception—advertisements of a kind specified in the regulations
The regulations may provide that an
advertisement of a kind specified in the regulations is not an interactive
gambling service advertisement for the purposes of this Part.
61BH
Definition
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.
61EC
Australian sporting and cultural events of international significance—acts of
publication permitted
(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.
Division 6—Miscellaneous
61FA
Failure to broadcast, datacast or publish advertisement not actionable if this
Part would be contravened
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.
61FC
Review of decisions
(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.
61FE
Reports to Parliament
(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.
Part 8—Miscellaneous
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.
65
Service of notices
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);
(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 ACMA function—monitoring compliance with codes and standards
The ACMA’s functions include monitoring
compliance with codes and standards registered under Part 4.
68
Review before 1 July 2003
(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.
69A
Regulations about unenforceability of agreements relating to illegal
interactive gambling services
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.
70
Regulations
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.