Bills Digest No. 45 2001-02
Interactive Gambling Amendment Bill 2001
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Comment
Endnotes
Contact Officer & Copyright Details
Interactive Gambling Amendment Bill
2001
Date Introduced: 30 AugusT 2001
House: Senate
Portfolio: Communications, Information Technology and the
Arts
Commencement: Royal Assent
To amend the Interactive Gambling Act
2001 so that regulations made under the Act can exclude
certain types of advertisements from the prohibition on the
advertising of interactive gambling services.
The Interactive Gambling Act 2001:
-
- prohibits interactive gambling services from being provided to
customers in Australia
-
- prohibits Australian-based interactive gambling services from
being provided to customers in designated countries
-
- establishes 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, and
-
- prohibits the advertising of interactive gambling
services.
The latter prohibition is the subject of Part 7A
of the Act. This Part was not included in the original Interactive
Gambling Bill 2001, but was inserted as amendments by the
Government during the debate in the Senate on 28 June 2001. The
amendments were agreed to without debate.
Interactive gambling services are defined in
section 5 of the Act as commercial gambling services provided to
customers using the Internet, broadcasting, datacasting or other
content or listed carriage services. The definition excludes
telephone betting services, sports wagering services and other
gambling services which are:
-
- conducted in hotels, clubs and other public places
-
- exclusively associated with particular broadcasting or
datacasting programs, and
-
- lottery services which meet certain conditions.
Advertising Bans and Free Speech
This would appear to be only the second time
that the Commonwealth Parliament has imposed a blanket prohibition
on the advertising of a particular product or service, the first
being the Tobacco Advertising Prohibition Act 1992. The
prohibition on the advertising of interactive gambling, like that
for tobacco, extends beyond broadcasting and electronic
communications to nearly all forms of publishing and public
display. The tobacco advertising ban was preceded by the
Commonwealth, State and Territory National Health Policy on Tobacco
(March 1991) and the legislation took into account State and
Territory law on the subject. The Minister's Second Reading Speech
on the tobacco advertising legislation also referred to the issue
of free speech, and justified the restrictions on speech in terms
of the need to protect the community's health, especially the
health of children.(1) In speaking for the then
Opposition parties, Senator Patterson, referred to the
'considerable debate on this side of the chamber as to the pros and
cons of the Bill', with the harmful effects of smoking versus 'the
principles of free speech'. The Senator concluded that 'we in the
coalition finally reached the decision, with much soul searching,
that we would support the Bill'.(2)
Given the lack of any parliamentary or other
comment with regard to the interactive gambling advertising ban, it
might now be inferred that such prohibitions on advertising are no
longer considered to be a threat to the principle of free speech in
this country. Alternatively, it might be argued that the concerns
over the tobacco advertising ban were in the context of the
legality of tobacco as a product. The prohibition on the
advertising of interactive gambling services is not in this
category because it was intended only to apply to those services
which are themselves illegal under the Act.
Normally, it would not be considered necessary
to prohibit the advertising of an illegal service, as those engaged
in the supply of such services are not anxious to draw attention to
their activities. However, as the Interactive Gambling Act permits
interactive gambling services that are illegal in Australia to be
offered to overseas customers, an advertising ban was presumably
considered necessary to prevent these providers from promoting
their services within Australia.
Reason for the Amendment
In moving the amendments to the Interactive
Gambling Bill on 28 June 2001, the Minister (Senator the Hon.
Richard Alston) stated that 'The advertising ban would only apply
to interactive gambling services that are banned by the
bill'.(3) However, it has since come to the Government's
attention that the Act may inadvertently prohibit the advertising
of land-based casinos which also provide interactive gambling
services to overseas customers. Section 61BA(1)(e)
defines an interactive gambling advertisement as any writing,
visual image or audible message that promotes 'any words that are
closely associated with an interactive gambling service'. If a land
based casino uses its name for its legitimate interactive gambling
services, then there is a chance that the name will become 'closely
associated' with the interactive gambling service. This would then
prevent the casino from using the name in advertising its
land-based services.
Of course, any casino which wished to avoid this
possibility could simply use a different name for its interactive
gambling services. However, this would deny a reputable casino the
opportunity of capitalising on its good name with regard to its
interactive services. This could be a considerable drawback, as a
reputation for reliability is essential for a successful Internet
gambling operation.
It might be argued that it is inconsistent for
the Government to amend its legislation to facilitate casino
operations, when its general policy is to encourage a reduction in
gambling levels in the community. However, this ignores the
Minister's commitment in the Senate that the advertising
prohibition would only extend to those interactive gambling
services made illegal by the Act.
Item 2 of Schedule 1 inserts a
new section 61BGA. This provides that the
regulations made under the Act may provide that certain
advertisements are not interactive gambling service advertisements
for the purposes of Part 7A of the Act.
Considering the narrow circumstances which have
necessitated the amendment, the regulation-making power appears
very broad. New section 61BGA has no constraints
on what advertisements could be specified in the regulations as
being, in effect, exempt from the provisions of the Act.
-
- Senate Hansard, 25 November 1992, p. 3488-9.
- Senate Hansard, 14 December 1992, p. 4903-5.
- Senate Hansard, 28 June 2001, p. 25461.
Kim Jackson
10 September 2001
Bills Digest Service
Information and Research Services
This paper has been prepared for general distribution to
Senators and Members of the Australian Parliament. While great care
is taken to ensure that the paper is accurate and balanced, the
paper is written using information publicly available at the time
of production. The views expressed are those of the author and
should not be attributed to the Information and Research Services
(IRS). Advice on legislation or legal policy issues contained in
this paper is provided for use in parliamentary debate and for
related parliamentary purposes. This paper is not professional
legal opinion. Readers are reminded that the paper is not an
official parliamentary or Australian government document.
IRS staff are available to discuss the paper's contents with
Senators and Members
and their staff but not with members of the public.
ISSN 1328-8091
© Commonwealth of Australia 2000
Except to the extent of the uses permitted under the
Copyright Act 1968, no part of this publication may be
reproduced or transmitted in any form or by any means, including
information storage and retrieval systems, without the prior
written consent of the Parliamentary Library, other than by Members
of the Australian Parliament in the course of their official
duties.
Published by the Department of the Parliamentary Library,
2001.
Back to top