House of Representatives

Explanatory Memorandum

(Circulated by the authority of the Minister for Families and Social Services, Senator the Hon Anne Ruston)

NOTES ON CLAUSES

Abbreviations used in this explanatory memorandum

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Interactive Gambling Act means the Interactive Gambling Act 2001;

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'ACMA' means the Australian Communications and Media Authority;

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'the Register' means the National Self-exclusion Register;

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'ACMA Act' means the Australian Communications and Media Authority Act 2005;

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'Privacy Act' means the Privacy Act 1988.

Clause 1 sets out how the new Act is to be cited - that is, as the Interactive Gambling Amendment (National Self-exclusion Register) Act 2019.

Clause 2 provides a table setting out the commencement date of the various sections in, and Schedules to, the new Act.

Part 1 of Schedule 1 will commence on the day after this Act receives Royal Assent.

Part 2 of Schedule 2 contains amendments contingent on the commencement of the Federal Circuit and Family Court of Australia Act 2019. The amendments in Part 2 of Schedule 2 will only commence once that Act commences.

Clause 3 provides that each Act that is specified in a Schedule is amended or repealed as set out in that Schedule, and any other item in a Schedule to the Bill has effect according to its terms.

Schedule 1 - National Self-exclusion Register

Summary

This Schedule amends the Interactive Gambling Act to establish a National Self-exclusion Register to allow individuals to exclude themselves from being provided interactive wagering services, by all licensed interactive wagering service providers in Australia, and limit the amount of direct marketing to the individual. In particular, this will assist individuals who are at risk of, or already experiencing, significant gambling-related harm from online wagering.

This Schedule sets out how an individual can register or deregister for the National Self-exclusion Register, stipulates penalty provisions for interactive wagering service providers who provide or market interactive wagering services to registered individuals, and provides ACMA, as the regulating body, with the authority to make rules in relation to the Register.

Background

A Review of Illegal Offshore Wagering (the Review) was undertaken and finalised in December 2015 to investigate illegal offshore wagering and how its impacts could be mitigated in order to protect all Australians. The Review also examined the efficacy of approaches to protect the consumer - including consumer protection measures - to mitigate the risk of negative social impacts on consumers.

The Review noted that the rate of problem gambling amongst online gamblers is three times higher than all other gambling platforms. The Review found that there was consensus among stakeholders that a national self-exclusion register is necessary to allow individuals to restrict contact by, and their access to, online gambling services, without having to contact each individual interactive wagering service provider licensed in Australia.

On 26 November 2018, as part of the Commonwealth's Government Response to the Review, the Commonwealth and state and territory governments agreed to a National Consumer Protection Framework, which includes the National Self-exclusion Register as a core measure.

The Register will allow individuals to self-exclude from all licensed interactive wagering service providers through a single process. This meets a critical gap in consumer protections for online gamblers in Australia, as currently only paper based processes or single-operator systems are available. This means that those most vulnerable currently have to exclude themselves from each online wagering service provider separately to stop wagering online, undermining the effectiveness of self-exclusion as a consumer protection tool.

Explanation of the changes

Part 1 provides for general amendments.

Amendments of the ACMA Act

Items 1 and 2 amend the ACMA Act.

Item 1 inserts new subparagraph 10(1)(o)(iv) after subparagraph 10(1)(o)(iii) to include as part of the ACMA's broadcasting, content and datacasting functions, reference to the National Self-exclusion Register (Cost Recovery Levy) Act 2019.

Item 2 inserts new section 59KA to make it clear that ACMA's power to disclose information under Part 7A of the ACMA Act does not authorise a disclosure of information that is prohibited by part 7B of the Interactive Gambling Act, as inserted by item 9 below. As information about a registered individual is sensitive, it is imperative that the disclosure of information is limited strictly for the purposes of the Register, as outlined in new Division 7 of Part 7B.

Amendments of the Interactive Gambling Act

Items 3 to 12 amend the Interactive Gambling Act.

Item 3 amends the simplified outline of the Interactive Gambling Act at section 3. This item adds a new paragraph (f) to specify that licensed interactive wagering services must not be provided to an individual registered in the Register.

Item 4 adds a note at the end of section 3 to guide the reader to the definitions of 'licensed interactive wagering service' and 'National Self-exclusion Register' at section 61GB of the Act (which is to be inserted by Item 9 of this Schedule).

Item 5 amends section 11A so that the term 'credit' as defined in section 11A does not apply to new Part 7B. A reference to 'credit' in Part 7B is a reference to 'credit' taking its ordinary meaning.

Items 6 and 7 add new paragraph 16(d) to allow a person to make a complaint to ACMA about a contravention of Part 7B of the Act.

Item 8 adds reference to Part 7B in new subparagraph 21(1)(a)(iv) the end of paragraph 21(1)(a) to allow ACMA to investigate whether a person has contravened a provision of Part 7B.

Item 9 inserts new Part 7B - National Self-exclusion Register.

The National Self-exclusion Register

The Register will allow individuals to self-identify and apply to the register, if they wish, to be excluded from accessing and using interactive wagering services. The registration process will involve the individual applying to be registered for a particular period from three months to life registration (with a minimum period of three months for the first registration), and confirming that they are ordinarily resident in Australia. Other information, including what the application must provide, will be prescribed by the Register rules. The individual may also nominate up to five support persons, with those person's consent, and information about those persons will also be included in the Register. The individual will need to be identified, in accordance with procedures to be prescribed in the Register rules.

A streamlined process will apply to applications for re-registration, with the application pre-filled from previously held information for individuals who give their consent for their archived record to be retained. An individual's registration may be extended at their request, and the registration corrected or varied as needed from time to time.

An application for deregistration will need to be supported by evidence the person has obtained appropriate counselling or advice from a properly qualified person about that decision. If the person has a nominated support person, that person will be informed of the individual's application for deregistration, and given seven days before the application is actioned.

A number of matters will be provided for by the Register rules. This is to allow for flexibility to determine matters which will only become known subsequent to the Bill passing. A number of matters are dependent on the outcome of ACMA's procurement process, the development of the Register system, trialling, testing and establishing interoperability of the Register with licensed interactive wagering service providers, the Register operator's capabilities and day-to-day functions. The Register rules may make further provision in relation to the Register, and require licensed interactive wagering service providers to promote the Register to their customers.

Licenced interactive wagering service providers are prohibited from providing or marketing interactive wagering services to, or opening interactive wagering service accounts for, registered individuals. This is subject to both civil penalty and criminal offences. Any accounts in existence with such providers when an individual becomes registered must be closed, subject to resolving any pending bets.

The offence provisions will have extended geographical jurisdiction of category D for the Criminal Code Act 1995 (Criminal Code). Category D provides for an offence to extend to conduct by any person outside Australia even if there is no equivalent offence in the law of the local jurisdiction. This is consistent with existing offence provisions in the Interactive Gambling Act, and is included to encapsulate circumstances where the licensed interactive wagering service provider commits an offence overseas, or where the registered individual was traveling overseas at the time. While an interactive wagering service provider may be licensed in Australia, they may still be operating or providing services from an overseas server. Considering the borderless nature of the internet, extraterritorial jurisdiction ensures that as many consumers as possible are provided with the optimal level of protection, in order to maximise harm minimisation.

The defence of 'mistake' under section 9.2 of the Criminal Code applies to all offence provisions in this Part if the person was under a mistaken but reasonable belief that particular facts existed. This defence also applies to civil penalty provisions under section 95 of the Regulatory Powers (Standard Provisions) Act 2014.

Information about whether an individual is or was registered, or was a nominated support person, and all information included in any application to the Register or the Register itself will be protected information, subject to stringent confidentiality provisions.

The operation of this Part and the Register will be reviewed 12 months from its commencement, including public consultation, and a report provided to the Minister and published on the Department's website. This will include consideration of any enhancements to the system as specified under the National Consumer Protection Framework for online wagering, any unintended consequences of the system for consumers and consideration of the regulation of contracted service providers in relation to the interactive wagering service provider. A further evaluation will be conducted three years after commencement to assess outcomes for consumers.

Division 1 of Part 7B sets out the definitions and general processes for the purposes of the Register.

New section 61GA provides a simplified outline of Part 7B.

New sections 61GB and 61GD to 61GH define terms used in Part 7B, including 'account', 'licensed interactive wagering service', 'message' and 'State/Territory wagering licensing or regulatory body'. These definitions are explained further in the provision that uses the term.

The term 'name' is defined in relation to an individual, to mean the individual's full name or the name by which the individual is commonly known by. This would encompass nicknames, shortened names and aliases.

Certain terms such as 'applicable identification procedure', 'listed support service' and 'recognised third-party identification procedure' are to be defined by the Register rules.

New section 61GC establishes an open-ended 'proclaimed start day'. There are three references to 'proclaimed start day' in the Part, such that it is the first day on which an individual can apply to be registered in the Register, and a review and an evaluation will be conducted 12 months and three years, respectively, after the proclaimed start date. This allows for the system to come into effect as soon as the technology system is established and tested.

Division 2 establishes the Register.

New section 61HA imposes an obligation on ACMA to engage a body corporate to keep the Register. The body corporate is referred to throughout the Bill as 'the Register operator'. The Register may also be known by a name specified in the Register rules.

The Register is to be kept in electronic form and is not a legislative instrument. This provides a substantive exemption from the provisions of the Legislation Act 2003. Even though the Register applies to individuals and may affect the rights and obligations of these individuals, it contains sensitive information about an individual and it would not be appropriate if it were to be published as a legislative instrument. The Register is also not a notifiable instrument for the same reason.

Section 95B of the Privacy Act requires that an agency entering into a Commonwealth contract must take contractual measures to ensure that a contracted service provider does not do an act, or engage in a practice, that would breach an Australian Privacy Principle. This will be outlined in the contract between ACMA and the Register operator. Protecting consumer information is a key principle of the Register.

ACMA, on behalf of the Commonwealth, may make payments to the Register operator under the arrangements with the operator.

ACMA is best placed to be the Commonwealth regulator for the Register. ACMA already regulates entities to ensure compliance with the Interactive Gambling Act and similar registers, such as the Do Not Call Register. Having a Commonwealth agency responsible for administering the Register operator will assist in ensuring objectivity and avoid conflict of interests of licensed interactive wagering service providers.

ACMA must not make an arrangement to host the Register with a body corporate that provides a gambling service; or undertakes gambling-related lobbying; or is a member of the same related company group as a body corporate that provides a gambling service or undertakes gambling-related lobbying; or holds an ownership interest in a body corporate that provides a gambling service or undertakes gambling-related lobbying. ACMA must impose a condition on the Register operator that it does not do any of these things.

A 'gambling service' is already defined broadly in section 4 of the Interactive Gambling Act, and covers betting, lottery or other games played for money. 'Gambling related lobbying' and 'lobby' are defined broadly in section 61GB, and cover lobbying government or public officials (including Ministers) in relation to specific or general gambling services. This is to ensure no conflict of interest arises from the hosting arrangement.

Division 3 sets out how an individual could register themselves in the Register.

New section 61JA provides that an individual may apply to the Register operator to register themselves in the Register.

An application for registration must state the length of time (in whole months or years) for which the applicant wants to be registered (ranging from three months to life) and that the individual is ordinarily an Australian resident. In the application an individual may also nominate up to five other individuals to each be a support person of the applicant. Information about each of the individuals to be a support person will be required as part of the application form, and the form must also include a statement to the effect that the applicant has obtained the consent of each of the other individuals to be nominated as a support person of the applicant.

The manner of applying to the Register operator is to be prescribed by the Register rules.

An application for registration may be a re-registration. In this case, the Register operator may use a registered individual's entry to reactivate their registration. However, the applicant may delete or modify any or all of their prefilled information or statements that had already been kept by the system from their first registration, and they may do so before finalising the application for re-registration.

Applications for registration may only be made after the proclaimed start day.

New section 61JB provides that when an individual makes an application to be registered in the Register, the Register operator must undertake the applicable identification procedure in respect of the applicant, unless the applicant's identity had already been verified by a third-party applicable identification procedure. The 'applicable identification procedure' will be prescribed by the Register rules (section 61GB).

An identity verification process is important to ensure that the individual is who they say they are. It would also mitigate the risk that a third party, for example a family member, signs up for another individual without their consent.

Subsection 61JB(3) means that an applicable identification procedure does not have to be carried out for an individual who has applied to be re-registered and had consented to their information being used for re-registration, in accordance with subsection 61JA(8).

New section 61JC outlines the registration processes the Register operator must follow and matters that must be included in the entry in the Register.

Once the Register operator has verified the identity of the individual to be registered, the Register operator must register the individual by making an entry in the Register within a period ascertained in accordance with the Register rules.

The entry must include the individual's name, and if the applicant nominated one or more support persons, the entry must also include both a statement that the other individuals are each a nominated support person and such other information relating to the other individuals, as is prescribed by the rules. For example, this is likely to include reference to the manner of consent of each such nominated support person.

New section 61JD provides that it is an offence and may attract civil penalty for a licensed interactive wagering service provider to bribe an individual in order to influence the individual to either not become a registered individual, or to cease to be a registered individual. Bribery occurs if the interactive wagering service provider provides, causes or offers to provide a benefit to an individual (with 'benefit' defined broadly in section 61GB as including any advantage, not limited to property).

Such offence could result in a criminal penalty of 120 penalty units with Category D jurisdiction, and a civil penalty of 180 penalty units.

Section 61JD also creates an offence and may attract a civil penalty if a licensed interactive wagering service provider does something with the intention of influencing an individual not to register, or to cease to be registered.

Such offence could result in a criminal penalty of 60 penalty units with category D jurisdiction, and a civil penalty of 90 penalty units.

The quantum of penalty units aligns with the existing penalty regime in the existing Interactive Gambling Act, and is designed to be proportionate to the seriousness of the contravention. Additionally, these penalties would be supported by other civil sanctions which may be more appropriate in different circumstances though sections 64A, 64C(1) and 64D(1) of the Interactive Gambling Act, including formal warnings, infringement notices and injunctions, as defined in the Regulatory Powers (Standard Provisions) Act 2014.

New section 61JE clarifies that if an individual's entry is removed from the Register, this does not prevent the Register operator from subsequently re-registering the individual under subsection 61JC(1).

New section 61JF outlines the duration of registration. If an application under section 61JF received from an individual states they wish to be registered for a specified length of time, the Register operator registers the individual by making an entry for the individual, and the registration remains in force only for that specified length of time.

The Register operator must also notify the nominated support person of the individual, as soon as practicable, of the duration of the registration on the Register.

New section 61JG allows a registered individual to apply to the Register operator to extend the duration of registration to a specified number of months, years or to the end of the individual's life. The specified number of months or years must be a whole number.

An application to extend the duration of registration must include such information and be made in such manner as prescribed by the Register rules.

If the Register operator extends the duration of a registered individual's registration and the individual has a nominated support person, the Register operator must notify the nominated support person, as soon as practicable, of the extension and the new expiry date of the registration.

New section 61JH provides for registration expiry. If a registration expires, the Register operator must remove the entry from the Register.

If the registration will expire at a known time, the Register operator must notify the individual of that fact at least 14 days before the expiry. This allows for informed consent and a prompt to consider re-registration. If a registration expires, and an individual returns to gambling, state and territory based harm minimisation regulations would apply.

If an individual has nominated a support person, the Register operator must notify the nominated support person at least 14 days before the date of expiry that the individual's registration will expire at the specified time.

New section 61JI allows the Register rules to outline when an entry regarding a nominated support person may be varied, including when a nominated support person is added or removed.

The Register rules may authorise the Register operator to vary a registered individual's entry in the Register by including a statement to the effect that another individual is a nominated support person of the registered individual and include in the Register prescribed information relating to the other individual.

If a new support person has been nominated, the Register operator must notify the person that they have been nominated as soon as practicable.

The Register rules may authorise the Register operator to vary a registered individual's entry in the Register by deleting any statement and information relating to a nominated support person of the registered individual if the person ceases to be a support person. The Register operator must notify the former nominated support person of the cessation as soon as practicable.

If a registered individual has a nominated support person and the Register operator becomes aware that the nominated support person has died, the Register operator must vary the registered individual's entry in the Register by deleting the statement that the person has a nominated support person and any information relating to the nominated support person.

Section 61JI does not limit section 61JJ.

New section 61JJ allows the Register rules to authorise the Register operator to vary entries in the Register.

New section 61JK outlines when a registered individual may apply to deregister themselves from the Register. The application to deregister must be in writing and include any information prescribed by the Register rules. Such application may not be made within three months of original registration, where the individual has registered for the first time. The application must be accompanied by a statutory declaration made by the individual specifying that the individual has obtained counselling or advice during the three-month period ending when the application was made from a qualified person or a listed support service about their decision to deregister. The terms 'qualified counsellor', 'qualified psychologist', 'general practitioner' and 'support service' are defined in section 61GB. 'Listed support service' will be defined by the Register rules (section 61GB).

Requiring that the individual obtain counselling or advice from a listed service ensures that the individual has considered the impacts of deregistration and ensures that it was not an impulse decision. The statutory declaration is also required for identity verification, to ensure that it is the same individual who sought to be registered, who is now seeking to deregister. Any other information required will be prescribed by the Register rules. For example, some proof of attendance for counselling or advice may be required.

If the registered individual has a nominated support person, the Register operator must inform the nominated support person that the registered individual has made an application to deregister, but the application can be withdrawn by the registered individual within seven days, and that if the application is not withdrawn, the individual's entry will be removed from the Register.

The Register operator must notify the nominated support person of the removal of the registered individual from the Register, or the withdrawal of the application to deregister.

If the application is not withdrawn by the end of the seventh day, the Register operator must remove the registered individual's entry from the Register at the start of the eighth day after the application was made. The seven-day cooling off period provides an individual time to reconsider their decision. Once deregistered, and if the individual returns to gambling, state and territory based harm minimisation regulations would apply.

All persons who have been removed from the Register must demonstrate their identity again and take the same steps in the same way a new registrant does, in order to be registered on the Register again, unless they have provided an archived records consent in accordance with section 61JL.

New section 61JL provides for an individual to consent to have their records archived for seven years. The individual also acknowledges that the archived copy can be used by the Register operator to facilitate a subsequent re-registration of the individual in the Register. This will help ensure further take-up of the Register, and encourage previously registered individuals to utilise the Register service again. An individual may make an 'archived records consent' statement in an application made under this Part of the Act, or under the Register rules.

Use of the relevant individual's archived entry is limited, and may only be used to facilitate a subsequent re-registration of the individual in the Register.

New section 61JM provides that the Register operator must remove a registered individual's entry from the Register, if the Register operator is aware that the individual is not ordinarily an Australian resident or the individual has died. This is because these entries in the Register are not necessary to meet the objectives of the Register.

New section 61JN provides the Register operator with the power to correct entries in the Register in specific circumstances.

If ACMA provides written directions to the Register operator to correct entries, the Register operator must comply. This provides flexibility so that ACMA could direct corrections on a case by case basis where ACMA considers it appropriate to do so because of extraordinary or unforeseen circumstances.

The Register rules may prescribe circumstances in which the Register operator must correct or remove entries in the Register. However, the Register operator must remove an entry from the Register if the entry was made in error (if for example, the Register operator had accidentally registered another individual with the same name).

This section does not limit Australian Privacy Principle 13 or Part V of the Freedom of Information Act 1982 (FOI Act). The Register operator is still required to take reasonable steps to correct personal information to ensure that having regard to the purpose for which it is held, it is accurate, up-to-date, complete, relevant and not misleading. A person could also apply to ACMA or the Minister for amendment and annotation of personal records as provided for in the FOI Act.

New section 61JO is an overarching provision that allows the Register rules to make further provision in relation to the Register. This provides flexibility, in light of potential unforeseen circumstances that involve the Register, such as evolving technology.

New section 61JP allows the Register rules to require licensed interactive wagering service providers to take specified action for the purposes of promoting the Register to their customers.

The Register rules may also require licensed interactive wagering service providers to take specified action directed towards ensuring that their customers are aware of, and can readily access the website of, the Register, and if there is a mobile app for the Register, that app.

If a licensed interactive wagering service provider contravenes the Register rules made for the purposes of section 61JP, then they commit an offence with a penalty of 120 penalty units with Category D jurisdiction, and could also be liable to a civil penalty of 180 penalty units.

A person who commits an offence, commits 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.

A person who contravenes the civil penalty provision also commits a separate contravention of that provision in respect of each day during which the contravention occurs (including the day the relevant civil penalty order is made or any later day).

The licensed interactive wagering service provider's conduct will not attract a penalty if the contravention occurred in circumstances prescribed by the Register rules.

Penalties are suitable here, given the importance of effective promotion of the Register. This is to increase awareness of the Register, make the Register easily accessible for consumers and encourage self-exclusion. It also discourages licensed interactive wagering service providers from promoting their own self-exclusion products in place of the Register. Improper communication of the Register, or the undermining of the Register scheme could have detrimental impacts on the Register's integrity and consumer protection outcomes.

Division 4 sets out prohibitions of the provision of licensed interactive wagering services to registered individuals

New section 61KA specifies that a licensed interactive wagering service provider who provides a licensed interactive wagering service to an individual who is registered on the Register is subject to a criminal offence attracting 500 penalty units as well as a civil penalty of 750 penalty units. Licensed interactive wagering service providers can request information as to whether an individual is registered in the Register and receive this information over the internet, under new section 61NC (below).

A person who commits an offence, commits 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.

A person who contravenes the civil penalty provision also commits a separate contravention of that provision in respect of each day during which the contravention occurs (including the day the relevant civil penalty order is made or any later day).

It is an exception if the licensed interactive wagering service was provided to the registered individual by mistake. This is as a result of section 9.2 of the Commonwealth Criminal Code, which creates a defence to strict liability offences where the person is under a mistaken but reasonable belief that particular facts existed. This defence also applies to civil penalty provisions under section 95 of the Regulatory Powers (Standard Provisions) Act 2014. This applies to all penalty provisions in this Part.

The licensed interactive wagering service provider bears the burden to prove that they made a mistake.

Additionally, penalties do not apply if the licensed interactive wagering service provider took reasonable precautions and exercised due diligence to avoid the contravention. The licensed interactive wagering service provider bears the burden to prove that they had taken reasonable precautions and exercised due diligence.

This is an offence with category D geographical jurisdiction.

Division 5 is about prohibition of the marketing of licensed interactive wagering services to registered individuals.

New section 61LA prevents a licensed interactive wagering service provider sending or causing to be sent a regulated electronic message to an electronic address associated with a registered individual. Separate offences apply depending upon whether the address is known to the provider to be a registered individual's address, or the provider is reckless as to the fact it is such an address. Known conduct attracts 120 criminal penalty units or 180 civil penalty units. Reckless conduct attracts 60 criminal penalty units or 90 civil penalty units.

These penalty provisions ensure that individuals experiencing harm from online wagering are not targeted with marketing material that may encourage them to gamble or deregister. This is a key policy objective as receiving marketing material about gambling services may trigger individuals to resume accessing interactive wagering services.

'Electronic message' (section 61GE) means a message sent using the internet or any other listed carriage service, to an electronic address in connection with an email, instant messaging, telephone or similar account. It is immaterial whether the electronic address actually exists, or whether the message reaches its intended destination. However, it does not include a message sent by way of voice call.

'Regulated electronic message' (section 61GF) means an electronic message, where the purpose or one of the purposes of the message is to offer to provide, or to advertise or promote licensed interactive wagering services, or a provider or prospective provider of such services. The purpose of the message is determined having regard to its content, the way in which the message is presented, and the content that can be accessed using links, telephone numbers of contact information set out in the message.

Exceptions apply if the licensed interactive wagering service provider took reasonable precautions and exercised due diligence to avoid the contravention.

The offence has extended geographical category D jurisdiction.

New Section 61LB specifies that regulated telemarketing calls must not be made to a telephone number associated with a registered individual.

'Regulated telemarketing call' is defined at section 61GG to mean a voice call, where the purpose, or one of the purposes of the call is to offer to provide or to advertise or promote a licensed interactive wagering service. The purpose of the call is established having regard to the content of the call, the presentational aspects of the call, the content that can be obtained using any number, URL or contact information mentioned in the call. If the number from which the call is made is disclosed to the recipient, regard can also be had to the content that can be obtained by calling that number. A voice call may be made using any system supporting calls by voice, including the telephone network, systems and applications supporting voice over internet protocols, Skype or other video calls.

An offence applies where a licensed interactive wagering service provider makes, or causes to be made, a regulated telemarketing call to a registered individual. The offence is subject to a criminal penalty of 120 penalty units or a civil penalty of 180 civil penalty units for the mirror civil penalty provision.

The offence does not apply if the licensed interactive wagering service provider took reasonable precautions and exercised due diligence to avoid the contravention.

The offence against has extended geographical category D jurisdiction.

New section 61LC prevents regulated direct marketing material being sent to a registered individual. It is an offence for a licensed interactive wagering service provider to send, or cause to be sent, regulated direct marketing material to a registered individual. It is also an offence if the person sends, or causes to be sent by a postal service or other like service, regulated direct marketing material to advertise or promote a provider, or prospective provider of licensed interactive wagering services to the individual. A licensed interactive wagering service provider that sends regulated direct marketing material to a registered individual could be liable to a criminal penalty of 120 penalty units, or an equivalent civil penalty of 180 penalty units.

'Regulated direct marketing material' (section 61GH) means physical material, where it would be concluded that the purpose, or one of the purposes of the material is to offer to provide, or to advertise or promote licensed interactive wagering services, or to advertise or promote a provider of licensed interactive wagering services. The purpose of the material is determined based upon its content, the way in which the material is presented and content that can be located using any URLs, telephone numbers or contact information set out in the material.

An exception from the offence or civil penalty applies if the licensed interactive wagering service provider took reasonable precautions and exercised due diligence to avoid the contravention.

Extended geographical jurisdiction applies to the offence.

New Section 61LD prevents information about a registered individual being disclosed for marketing purposes.

A licensed interactive wagering service provider commits an offence or may attract a civil penalty if they disclose specific information relating to a registered individual who holds or held a licensed interactive wagering service account with that provider,

with the intention that the information be used by the recipient of the information:

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to send, or cause to be sent, a regulated electronic message to an electronic address of the individual; or

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to make, or cause to be made, a regulated telemarketing call to the individual; or

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to send, or cause to be sent, regulated direct marketing material to the individual.

The information disclosed may be the individual's name, electronic address, telephone number, physical or postal address, or any other information prescribed by the Register rules.

Such provider could be liable to a criminal penalty of 120 penalty units or a civil penalty of 180 penalty units.

'Account' is further defined in section 61GB, to include a pre-paid account, a credit account and anything that may reasonably be regarded as the equivalent of an account, regardless as to whether the account only has a nil balance. An account that is still subject to verification or being verified is still an 'account' under this definition.

An exception to contravention applies if the provider took reasonable precautions and exercised due diligence to avoid the contravention.

Extended geographical jurisdiction Category D applies to the offence.

Interactive wagering service providers and their contracted service providers will be carefully monitored in relation to marketing practices. If they flout the intent of these provisions then further legislative restrictions may be imposed.

Division 6 sets out consequences of registration on licensed interactive wagering service accounts.

New section 61MA prevents a licensed interactive wagering service provider opening an interactive wagering service account for a registered individual.

A licensed interactive wagering service provider commits an offence if they open a licensed interactive wagering service account for a registered individual and they could be liable to a criminal penalty of 120 penalty units or a civil penalty of 180 penalty units.

The offence does not apply if the licensed interactive wagering service provider had taken reasonable precautions and exercised due diligence to avoid the contravention.

Extended geographical jurisdiction applies to the offence.

New section 61MB provides for the closure of a licensed interactive wagering service account where immediately before becoming a registered individual, the individual already had an existing licensed interactive wagering service account with the licensed interactive wagering service provider and the individual did not have any outstanding or pending bets. The closure must occur as soon as practicable.

If before the individual registered, the individual owed one or more debts to the licensed interactive wagering service provider that could lawfully be recovered by way of deduction from the account, the provider may recover the debts prior to closing the account. If there is still a balance left over after the debt has been deducted, the interactive wagering service provider must pay the individual that amount.

In the event an individual ceases to be registered before their account is closed, the licensed interactive wagering service provider must not accept any further bets in between the deregistration and the account closure.

The licensed interactive wagering service provider must not reopen, reactivate or reinstate an account that has been closed.

This does not prevent the licensed interactive wagering service provider from opening a new account for the individual, if the individual ceases to be a registered individual. It is a key policy principle that an individual must actively reapply to access interactive wagering services again if they wish to open an interactive wagering service account. State and territory based harm minimisation regulatory regimes would then apply.

A licensed interactive wagering service provider commits an offence if they do not close a registered individual's account as soon as practicable, or they do not pay the individual an amount equal to their credit balance, or they reopen, reactivate or reinstate a registered individual's account. The offence carries a maximum penalty of 120 penalty units, or 180 penalty units for the equivalent civil offence.

An exception applies if the person took reasonable precautions and exercised due diligence to avoid the contravention.

The offence has extended geographical jurisdiction (category D).

To avoid doubt, the closure of a licensed interactive wagering services account does not prevent a licensed interactive wagering service provider pursuing the recovery of a debt owed by an individual.

The provisions of section 61MB have no effect to the extent their operation would result in an acquisition of property from a person otherwise than on just terms (within the meaning of paragraph 51(xxxi) of the Constitution).

New section 61MC provides for circumstances where immediately before becoming a registered individual, the individual already had an existing licensed interactive wagering service account with the licensed interactive wagering service provider and the individual had outstanding or pending bets from a licensed interactive wagering service provider. Previously placed bets will remain valid, and whether a pending bet results in winnings or losses will still need to be resolved. This is required to be in place to ensure that there is not abuse of the Register to void bets, however, this will continue to be monitored.

If those bets are subsequently resolved, then the licensed interactive wagering service provider must as soon as practicable, close the account. If the registered individual owes any debts to the service provider which may lawfully be recovered by way of deduction from the account, this may occur prior to the account being closed. If the account has a credit balance when closed, this amount must be paid to the individual.

Section 61GD outlines situations when an outstanding or pending bet is considered to be 'resolved'. For a winning bet, the bet is resolved when the bet is settled. For a losing bet, it is resolved when it becomes clear the bet is a losing bet. If the bettor becomes entitled to a refund, the bet is resolved when this is determined. It is immaterial whether a refund is or will be made by way of credit to a licensed interactive wagering service account.

In the event an individual ceases to be registered before their account is closed, the licensed interactive wagering service provider must ensure that the account is not used in relation to the provision or prospective provision of licensed interactive wagering services to the individual after the deregistration. The licensed interactive wagering service provider must not reopen, reactivate or reinstate an account that has been closed. An individual who is no longer registered must open a new account

with the wagering service provider in order to resume gambling.

This does not prevent the licensed interactive wagering service provider opening a new licensed wagering service account for the individual if the individual ceases to be a registered individual.

A licensed interactive wagering service provider commits an offence if they do not close the account or pay the individual an amount equal to the credit owing as soon as practicable. However, an exception applies if the person took reasonable precautions and exercised due diligence to avoid the contravention.

A mirror civil penalty applies for breaching the requirements as above of 180 penalty units, subject to the same exceptions.

Section 51.4 of the Criminal Code applies, giving the offence extended geographical jurisdiction of category D.

To avoid doubt, the closure of a licensed interactive wagering services account does not prevent a licensed interactive wagering service provider recovering a debt owed by an individual.

The provisions of section 61MC have no effect to the extent their operation would result in an acquisition of property from a person otherwise than on just terms (within the meaning of paragraph 51(xxxi) of the Constitution).

Division 7 limits disclosure of protected information.

New section 61NA defines protected information as:

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information about whether an individual is or was a registered individual; or

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information about whether an individual is or was a nominated support person of a registered individual; or

•

any other information that is or was included in an entry in the Register; or

•

information about, or included in, an application made by an individual under Division 3 (application for registration, nomination of support person, re-registration and deregistration) or the Register rules.

These provisions recognise that individuals who provide information to the Register, to assist with their problem gambling, do so on the understanding that it will be kept confidential. Whether or not someone has a gambling problem is a sensitive issue, and could result in embarrassment or other negative consequences for individuals if it was disclosed to unauthorised parties.

New section 61NB sets out when disclosure of information is unauthorised.

An unauthorised disclosure of protected information is a breach of an individual's privacy and can attract criminal and civil penalties.

A person commits an offence subject to 120 penalty units or civil penalty of 180 penalty units if:

A 'contracted service provider' is defined at section 61GB both in relation to a licensed interactive wagering service provider, and in relation to the Register operator. For a service provider, it means a person who performs services for or on behalf of the provider, but does not include a person who performs such services in the capacity of an employee of the provider. Similarly in relation to the Register operator, it means a person who performs services for or on behalf of the Register operator, but does not include a person who performs such services in the capacity of an employee of the Register operator.

Exceptions apply if the disclosure was authorised under various sections of this Part, Australian Privacy Principle 12 (for example if the Register operator holds personal information about an individual, that individual may request the Register operator to give them access to that information on request), or Part V of the FOI Act.

The listed persons may disclose protected information if it is disclosed:

•

in connection with the administration or execution of Part 7B; or

•

for the purposes of ensuring that a licensed interactive wagering service provider complies with this Part; or

•

for the purposes of:

o

any legal proceedings arising out of or otherwise related to this Part; or

o

any report of any such proceedings; or

•

in accordance with any requirement imposed by a law of the Commonwealth, a State or a Territory; or

•

in connection with the performance of functions, or the exercise of powers, by:

o

the Register operator; or

o

ACMA; or

•

for the purpose of obtaining legal advice in relation to this Part.

The references to Part 7B includes the Register rules, any other provision of the Interactive Gambling Act so far as that other provision relates to this Part or the Register rules, the Regulatory Powers Act so far as it relates to this part, and the National Self-exclusion Register (Cost Recovery Levy) Act 2019.

Disclosure of protected information that relates to the affairs of an individual may occur if the relevant individual has consented to the disclosure and the disclosure is in accordance with that consent.

ACMA has authority to disclose personal information derived from protected information if the personal information is de-identified information (within the meaning of the Privacy Act). Information is de-identified when it has undergone a process of removing information that could identify a person.

Unauthorised disclosure of protected information is a category D offence. This will assist in preventing the disclosure of personal information of a vulnerable cohort of people.

New section 61NC relates to a licensed interactive wagering service provider accessing the Register.

A licensed interactive wagering service provider may request the Register operator to inform them whether one or more specified individuals are registered individuals at the time when the request is made. The request must include the individual's name and such other information as prescribed by the Register rules.

The Register operator must so inform the provider within the period ascertained in accordance with the Register rules.

The period is to be ascertained in accordance with the Register rules, providing ACMA with the flexibility to prescribe a period when it becomes clear what the Register operator's capabilities are.

The manner in which the licensed interactive wagering service provider makes a request and the manner in which the Register operator must comply with such a request are to be prescribed by the Register rules, to provide for flexibility. The regularity of requests to the register by interactive wagering service providers for both new and existing accounts will be prescribed in the Register rules. However, the manner of request and compliance must involve the use of an internet carriage service, and a licensed interactive wagering service provider must ensure that it has a computer system, and is continuously supplied with an internet carriage service, that enable the licensed interactive wagering service provider to make requests to the Register operator at any time of the day or night and be informed by the Register operator in compliance with those requests.

The licensed interactive wagering service provider commits an offence if they do not comply with these requirements, subject to a 120 penalty units or a civil penalty of 180 penalty units.

A licensed interactive wagering service provider commits a separate offence or contravention of the provision in respect of each day during which the contravention occurs (including a day of conviction or the day the relevant civil penalty order is made, or any later day).

The offence has Category D extended geographical jurisdiction.

New section 61ND allows a registered individual to request the Register operator to inform them of the content of their entry in the Register. The Register operator must comply with such a request and do so as soon as practicable after the request is made.

The Register rules may make provision for and in relation to the manner in which the request is to be made by the individual and the manner in which the Register operator is to comply with such a request. These matters are to be specified in the Register rules, in order to provide ACMA with the flexibility to prescribe the manners in which a request is to be made.

This section does not by implication limit Australian Privacy Principle 12 or Part V of the FOI Act, which also allows an individual to whom the personal information relates to request access, amendment or annotation of their personal information.

New section 61NE provides that a nominated support person of a registered individual may request the Register operator to inform the individual of any of the content of the individual's entry that relates to the nominated support person.

The Register operator must comply with such a request and do so as soon as practicable after the request is made.

The Register rules may make provision for and in relation to the manner in which the request is to be made by the individual and the manner in which the Register operator is to comply with such a request. These matters are to be specified in the Register rules, in order to provide ACMA with the flexibility to prescribe the manners in which a request is to be made and to be complied with.

This section does not, by implication limit Australian Privacy Principle 12 or Part V of the FOI Act, which also allows an individual to whom the personal information relates to, to request access, amendment or annotation of their personal information.

New section 61NF is about disclosure to State and Territory wagering licensing or regulatory bodies.

ACMA may authorise the Register operator to disclose protected information to a State or Territory wagering licensing or regulatory body, if ACMA is satisfied that the information will enable or assist the body to perform any of the functions, or exercise any of the powers of the body.

ACMA may impose written conditions to be complied with in relation to the disclosed protected information.

Such instrument made in writing that imposes conditions relating to one particular disclosure identified in the instrument is not a legislative instrument. This is declaratory, as if the instrument would impose conditions relating to one particular disclosure, rather than a group of persons, it would not meet the definition of a legislative instrument.

If an instrument made under the section imposes conditions relating to more than one particular disclosure identified in the instrument, then it is a legislative instrument.

New section 61NG permits an ACMA official to disclose protected information to the Minister. It also permits an ACMA official to disclose protected information that relates to a matter that arises under a provision administered by a Minister to that Minister.

New section 61NH permits an ACMA official to disclose protected information to the Secretary or an APS employee of the Department, for the purpose of advising the Minister. An ACMA official may also disclose protected information relating to a matter that arises under a particular provision, to the Secretary of the Department administered by the Minister administering the provision. Such disclosure may also be made to an APS employee in the Department who has written authorisation from the Secretary, for the purpose of advising a Minister.

Division 8 is about the collection of cost recovery levy.

As outlined in the National Policy Statement for the National Framework, industry will bear the associated costs of the Register. Consistent with the Australian Government Cost Recovery Guidelines a cost recovery levy will be imposed on interactive wagering service providers to fund ACMA's regulatory activities and procurement of the body corporate in providing the Register. Charging interactive wagering service providers for the Register is appropriate, given they create the demand for the scheme, and are the primary cause of harm related to online wagering.

New section 61PA provides that the levy is due and payable at the time ascertained in accordance with the Register rules. 'Levy' means the levy imposed by the National Self-Exclusion Register (Cost Recovery Levy) Act 2019 (section 61GB).

New section 61PB provides that if an amount of levy remains unpaid after the time it was due, the person is liable to pay a late payment penalty, being an amount calculated at the rate of 20% per annum, or if the Register rules specify a lower percentage - that lower percentage. The penalty is calculated on the amount unpaid, calculated from the start of the day after that time occurred, until the end of the day before the day when the amount of levy is paid in full.

ACMA may remit the whole or a part of an amount of the late payment penalty.

ACMA's decision to remit the whole or part of an amount of late payment penalty will only be made after thorough consideration by senior officers. This will ensure high quality of these decisions and circumvent the need for an internal review mechanism.

A person may apply to the Administrative Appeals Tribunal for a review of the decision of ACMA to refuse to remit the whole or a part of an amount of the late payment penalty.

New section 61PC provides that levy, or late payment penalty is a debt due to ACMA on behalf of the Commonwealth and may be recovered by ACMA, on behalf of the Commonwealth in the Federal Court, the Federal Circuit Court, or a court of a State or Territory that has jurisdiction in relation to the matter.

New section 61PD provides that if a person had overpaid a levy or late payment penalty, the overpayment is to be refunded by ACMA on behalf of the Commonwealth.

Division 9 is a miscellaneous division.

New section 61QA provides for computerised decision making. The Register operator may arrange for the use of computer programs for any purposes for which the Register operator may, or must under this Part or the Register rules, make a decision, exercise any power or comply with any obligation, or do anything else related to making a decision or exercising a power or complying with an obligation. The use of computer programs will be under the Register operator's control and will be limited for purposes under this Part or in accordance with the Register rules.

A decision that was made, exercised, complied with or done by the operation of a computer program under an arrangement made under section 61QA will be taken to have been a decision made, exercised, or done by the Register operator.

However, the Register operator may substitute a decision for the initial decision made by the operation of a computer program if the Register operator is satisfied that the initial decision is incorrect.

This provision will allow for more efficient decision making, such as in registering an individual on the Register, re-registering, de-registering and varying entries. However, this provision also ensures that computerised decisions are taken to be decisions of the Register operator so that they are held responsible for any computerised actions.

New section 61QB allows the Register rules to prescribe procedures that must be followed by the Register operator in order to deal with complaints about the administration or operation of the Register.

If a person has reason to believe that another person has contravened a provision of this Part or the Register rules, and the person makes a complaint to the Register operator about the matter, the Register operator must refer the complaint to ACMA.

If the Register operator has received a complaint about the handling of personal information, the Register operator will refer the complaint to ACMA. The person may then make a further complaint to the Office of the Australian Information Commissioner if they choose to do so. Breaches of secrecy provisions will also be referred to ACMA.

New section 61QC provides that for the purposes of the Privacy Act, the services listed below that are provided by the Register operator contracted by ACMA are taken to be services provided to ACMA under the contract:

•

the keeping of the Register;

•

the operation of the Register; and

•

the performance of a function, or the exercise of a power by the Register operator under this Part or the Register rules.

This ensures that section 95B of the Privacy Act applies to the provision of these services, so ACMA must take contractual measures to ensure that the contracted service provider complies with the Australian Privacy Principles when providing those services.

New section 61QD provides that for the purposes of the FOI Act, if the Register is kept by the Register operator under a contract, the contract is taken to be a Commonwealth contract.

This makes clear that section 6C of the FOI Act applies to the contract such that ACMA must take contractual measures to ensure that ACMA receives a document if the document is created by, or is in the possession of the Register operator and the document relates to the performance of the Commonwealth contract and ACMA receives an FOI Act request for access to the document.

New section 61QE provides that this Part does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication.

This does not limit the application of section 15A of the Acts Interpretations Act 1901 to the Interactive Gambling Act. This clarifies that the Interactive Gambling Act is to be read so as to not exceed the legislative power of the Commonwealth.

New section 61QF provides that after the end of the 12-month period beginning at the start of the proclaimed start day, the Minister must initiate a review of the operation of these amendments, the Register rules and the National Self-exclusion Register (Cost Recovery Levy) Act 2019, and must make provision for public consultation. This review will provide an opportunity for the Department to consider consumer needs, unintended consequences or system gaps and any further policy considerations (for example affiliate providers or marketing requirements).

The report of the review must be given to the Minister within 18 months after commencement; and be published on the Department's website as soon as practicable after the report is given to the Minister.

The Minister must also cause copies of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the report.

Additional reporting of administrative and de-identified data will be undertaken by ACMA and made publicly available.

New section 61QG provides for an evaluation after the end of the three-year period beginning and the start of the proclaimed start day.

A report of the evaluation must be given to the Minister and published on the Department's website as soon as practicable after the report is given to the Minister.

The evaluation commencing at the end of the three-year period will differ from the 12-month review, where it is expected that this phase will examine the effectiveness, appropriateness and efficiency of the scheme. This will form part of the broader impact evaluation of the National Framework, and it is where governments will obtain data on changes in consumer behaviour and associated levels of harm.

New section 61QH provides for ACMA to make Register rules by legislative instrument. ACMA must consult the Minister before making Register rules. This gives the Minister oversight of the making of rules which may have an impact on the operation of this Part.

Item 10 allows ACMA to issue a formal warning under section 64A if a person contravenes the listed civil penalty provisions.

Item 11 adds references to additional subsections at the end of subsection 64C(1) (before the note) to clarify that the listed provisions in relation to the Register are also subject to an infringement notice under Part 5 of the Regulatory Powers (Standard Provisions) Act 2014.

Item 12 adds references to additional subsections at the end of subsection 64D(1) (before the note) so they are enforceable under Part 7 of the Regulatory Powers (Standard Provisions) Act 2014.

Amendment of the Privacy Act

Item 13 amends the Privacy Act.

Item 13 inserts a new paragraph in Australian Privacy Principle (APP) 7.8, relating to direct marketing. It provides that APP 7 does not apply to the extent that Division 5 of Part 7B of the Interactive Gambling Act applies.

Part 2 provides for amendment contingent on the commencement of the Federal Circuit and Family Court of Australia Act 2019.

Item 14 amends subparagraph 61PC(b)(ii) of the Interactive Gambling Act to substitute the reference to 'Federal Circuit Court' with the 'Federal Circuit and Family Court of Australia'.