Explanatory Memorandum
(Circulated by the authority of the Minister for Families and Social Services, Senator the Hon Anne Ruston)STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
INTERACTIVE GAMBLING AMENDMENT (NATIONAL SELF-EXCLUSION REGISTER) BILL 2019
This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
The Interactive Gambling Amendment (National Self-exclusion Register) Bill 2019 (the Bill) will amend the Interactive Gambling Act 2001 (Interactive Gambling Act) to put in place a scheme (Scheme) that will allow individuals to voluntarily exclude themselves (from three months to a lifetime) from accessing licensed interactive wagering services.
The Australian Communications and Media Authority (ACMA) must arrange for a body corporate (Register operator) to keep a register (Register) of self-excluded persons (registered individual/s). An individual may apply to the Register operator to become a registered individual. The Register operator must, if requested to do so by a licensed interactive wagering service provider, inform the provider whether an individual is a registered individual.
A licensed interactive wagering service provider must not:
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- provide a licensed interactive wagering service to a registered individual; or
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- send, or cause to be sent, a regulated electronic message to an electronic address of a registered individual; or
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- make, or cause to be made, a regulated voice call to a registered individual; or
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- send, or cause to be sent, regulated direct marketing material to a registered individual; or
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- use bribery to encourage an individual to not self-exclude, or do something with the intention of influencing an individual not to register or to cease to be registered; or
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- disclose information about a registered individual for marketing purposes; or
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- open a licensed interactive wagering service account for a registered individual.
ACMA will undertake regulatory compliance, enforcement of the Register Scheme, and oversight of the body corporate. This includes regulating the Register operator and interactive wagering service providers. The Department of Social Services has policy responsibility and is responsible for evaluation of the Scheme.
The policy objective of the Scheme is to reduce the harm of online wagering to Australian consumers, particularly those who are at risk of or already facing significant harm from online wagering.
Human rights implications
The Bill engages the following rights:
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- the right to privacy (Article 17 of the International Covenant on Civil and Political Rights)
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- the right to freedom of opinion and expression (Article 19 of the International Covenant on Civil and Political Rights), and
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- the right to health (Article 12 of the International Covenant on Economic, Social and Cultural Rights).
Right to privacy
Article 17 of the International Covenant on Civil and Political Rights mandates the right to privacy.
The Bill engages the right to privacy by allowing for the collection, use and disclosure of personal information to enable individuals to be added to the Register and facilitate voluntary exclusion from interactive wagering services. The individual specifies the duration of their registration, and their entry would only be retained after the cessation of their registration in limited circumstances. Information that is collected, used and disclosed under the Scheme may only be done with the consent of the registered individual and their support person(s). All personal information that is collected, used and disclosed under the Scheme is reasonable, necessary for, or directly related to, the functionality of the Scheme, and proportionate to achieving the legitimate policy objective of the Scheme. The Scheme is intended to be consistent with all Australian Privacy Principles under the Privacy Act 1988.
The Bill promotes the right to privacy by creating civil and criminal offences for unauthorised disclosure of personal information collected, used and disclosed under the Scheme. This includes unauthorised disclosure of information about whether an individual is or was a registered individual; information about whether an individual is or was a nominated support person of a registered individual; any other information that is or was included in an entry in the Register; and any other information about, or included in, an application to be registered in the Register. These offences are intended to be proportionate to the privacy impacts of unauthorised disclosure of personal information.
Right to freedom of opinion and expression
Article 19 of the International Covenant on Civil and Political Rights mandates freedom of expression. This extends to restriction of access to information on the internet. This right includes the freedom to seek, receive and impart information and ideas of all kinds, and through any medium.
The Bill engages the right to freedom of opinion and expression by limiting access to interactive wagering services, and by prohibiting the marketing of licensed wagering services to registered individuals. Registration for self-exclusion is entirely voluntary and there is a process for individuals to revoke this decision if they wish to no longer be excluded. Limiting access to interactive wagering services and prohibiting the marketing of interactive wagering services in this circumstance is necessary for the protection of public health, and is reasonable, necessary and proportionate to achieve the legitimate policy objective of the Scheme. This is particularly considering that the marketing prohibitions are limited in scope applying only in relation to registered individuals, rather than the general public.
As such, the Bill is compatible with the right to freedom of opinion and expression.
Right to health
Article 12 of the International Covenant on Economic, Social and Cultural Rights recognises the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
The Bill promotes the right to health by facilitating the creation of a National Self-Exclusion Register, which will meet a critical gap in consumer protections in Australia, and can assist individuals who are at-risk of or already experiencing harm from online wagering. This includes individuals who meet the clinical criteria of Pathological Gambling (as per the International Classification of Mental and Behavioural Disorders) or Gambling Disorder (as per the Diagnostic and Statistical Manual of Mental Disorders). Information about gambling support, financial and counselling services, and land-based self-exclusion tools, will also be made available to an individual when they apply to become a registered individual.
Conclusion
The Bill is compatible with human rights because it promotes the right to privacy and the right to health, and the extent that it engages the right to privacy and right to freedom of opinion and expression it is reasonable, necessary and proportionate to achieve the legitimate policy objective of the Scheme.