Bills Digest No. 106,
2017–18
PDF version [651KB]
Kaushik Ramesh
Law and Bills Digest Section
9 May 2018
Contents
The Bills Digest at a glance
Purpose of the Bill
Commencement details
Background
Committee consideration
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Key issues and provisions
Other provisions
Concluding comments
The Bills Digest at a glance
The Interactive
Gambling Amendment (Lottery Betting) Bill 2018 (Lottery Betting Bill)
amends the Interactive
Gambling Act 2001 (the IGA) to prohibit the provision of online lottery
betting and keno betting services to people in Australia.
Lottery betting involves betting on the outcome of a
lottery or keno game or a contingency that may or may not occur during the
conduct of a lottery or keno game. The major lottery betting service provider
in Australia is Lottoland; much of the criticism of lottery betting services
has taken the form of direct criticism of Lottoland.
The introduction of the Lottery Betting Bill follows lobbying
from stakeholders (especially the ‘Lottoland’s Gotta Go!’ campaign), as well as
increasing opposition to lottery betting from state and territory governments
and Senators from minor political parties. The key arguments of those opposed
to lottery betting services is that they do not contribute to the revenue of
state and territory governments and that they take away business from local
newsagents.
While the Lottery Betting Bill’s Explanatory Memorandum
points to widespread opposition to the provision of lottery betting services in
Australia, stakeholder reaction to a proposed ban is more complex. While the
Lottery Betting Bill is supported by multiple newsagent associations, under the
umbrella of the ‘Lottoland’s Gotta Go!’ campaign, other newsagent organisations
are concerned that the Lottery Betting Bill will result in lottery companies
(that do not provide these lottery betting services) forming a monopoly.
Anti-gambling groups and sporting clubs sponsored by lottery betting service
companies have also commented on the Lottery Betting Bill.
Specifically, the Lottery Betting Bill:
- ensures
that online lottery betting services come within the definition of prohibited
interactive gambling services under the IGA
- ensures
that this prohibition cannot be circumvented by providing lottery betting
services over the telephone and
- clarifies
that a prohibition on lottery betting includes a prohibition on keno betting.
Purpose of
the Bill
The purpose of the Interactive
Gambling Amendment (Lottery Betting) Bill 2018 (Lottery Betting Bill) is to
amend the Interactive
Gambling Act 2001 (the IGA) to ensure:
- a telephone betting service under the IGA does not include a
service relating to betting on the outcome of a lottery or a contingent outcome
of a lottery
- an excluded wagering service under the IGA does not include a
service relating to betting on the outcome of a lottery or a contingent outcome
of a lottery.
In effect, the Lottery Betting Bill makes the provision of
lottery betting services prohibited interactive gambling services
under section 5 of the IGA.
Commencement
details
Clauses 1-3 of the Lottery Betting Bill commence on
the day of Royal Assent. Schedule 1 of the Lottery Betting Bill
commences six months from the date of Royal Assent.
Background
Lottery
Betting
In explaining the term ‘lottery’, the Explanatory
Memorandum to the Interactive Gambling Bill 2001 stated:
... the ordinary meaning of lottery is
relevant in the context of the Bill. The Macquarie Dictionary definition
of lottery is a ‘scheme or arrangement for raising money....by the
sale of a large number of tickets, certain among which, as determined by chance
after the sale, entitle the holders to prizes’.[1]
Lottery betting and keno betting are also known as
‘synthetic lotteries’ and essentially involve betting on the outcome of a
lottery or keno game. As explained in the Lottery Betting Bill’s Regulation
Impact Statement (RIS)[2]
in relation to the customer of a lottery betting service:
... a customer does not purchase a ticket in the official
lottery draw. Instead the customer chooses numbers through a third party, who
will pay out winnings equivalent to those that the person would have received
through the official lottery provider, should they have won.[3]
Lottery betting can also involve betting on a contingent
outcome of a lottery:
A ‘contingency that may or may not happen in the course of
the conduct of a lottery’ would include, for example, the drawing of a
particular number at a particular position, the first three numbers drawn, or
the drawing of a particular ‘bonus’ number.[4]
Lottery betting services can pay out wins from sales
revenue, but also through an insurance policy model.[5]
Lottery
Betting in Australia
The IGA regulates the provision and advertising of interactive
gambling services to people in Australia. The provision of online
lottery betting services does not currently contravene the IGA. These
services are therefore legal in Australia provided they are licensed.
The RIS’s overview of the industry identifies Lottoland
Australia Proprietary Limited (Lottoland) as the company which is the primary
provider of lottery betting products in Australia, but also identifies Bet365,
William Hill and Ladbrokes as companies that offer these services.[6]
The RIS notes that there may be smaller providers of these services in the
market.[7]
As stated in the RIS, ‘state and territory governments are
responsible for the licensing and regulation of all legal forms of gambling
within their jurisdictions.’[8]
The RIS states that most online gambling operators are licensed in the Northern
Territory.[9]
The Northern Territory Racing Commission licences Lottoland as well as the
other lottery betting service providers listed above.[10]
That only one jurisdiction is involved in such licensing is highlighted in the
second reading speech that accompanied the Lottery Betting Bill. In that
speech, the Minister for Urban Infrastructure and Cities, Paul Fletcher, refers
to the fact that ‘lottery and keno betting services contribute significantly
less tax and only to one jurisdiction in Australia.’[11]
South Australia effectively prohibits the provision of
lottery betting services in its jurisdiction. The Independent Gambling
Authority in that state ‘must authorise the bet “type” and approved
“event” before a bet can be legally made. This is called an
approved contingency.’[12]
Lottery betting is not provided for in the South Australian Approved Betting
Contingencies Notice 2016.[13]
The RIS cites media reports which state that Victoria, New South Wales,
Tasmania and Western Australia are also considering prohibiting the provision
of lottery betting services to customers in their jurisdiction.[14]
Context of
the Lottery Betting Bill
There has been an increasing backlash from certain stakeholders
against the perceived effects of the lottery betting industry. This opposition
to lottery betting has largely taken the form of the ‘Lottoland’s Gotta Go!’
campaign. This campaign, launched in September 2017, was supported by the
lottery company, Tatts Group, and conducted by a group of newsagent
associations.[15]
The campaign makes a number of claims relating to lottery
betting (specifically against the company Lottoland), centring on the argument
that newsagents as well as state and territory governments are reliant on ‘real
lotteries’ for revenue and lottery betting is not regulated in the same manner
as other lotteries.[16]
This campaign has published advertisements in the media with comments such as
the following:
Real lotteries like the ones you play through a newsagent
contribute over a billion dollars a year in State and Territory lottery taxes.
Money that helps to fund schools, hospitals and roads. Real lotteries also
contribute as much as 70% of business revenue for some newsagents.
On the other hand, pretend lotteries like Lottoland pay no
State or Territory lottery taxes. Nor do pretend lotteries contribute to
lottery Association retailers like newsagents who employ 20,000 people across
Australia.
Support your local newsagent and your local community. Tell
your local MP that Lottoland's Gotta Go.[17]
RIS analysis found the campaign’s claims likely to have
general validity, although they cannot be quantitatively proven.[18]
Following the ‘Lottoland’s Gotta Go!’ campaign, there were
media reports that states were considering banning lottery betting, in the same
manner as South Australia. An article in the Australian Financial Review
reported the following in October 2017:
This week, NSW deputy premier John Barilaro raised the possibility
of banning online or ‘synthetic’ lottery products in what appeared to be a
response to a voluble campaign called "Lottoland's Gotta Go!" headed
by Tatts Group and newsagents concerned that online lotteries cut down on the
number of people visiting their outlets.
That came after rumours Victoria would also consider a ban,
while it was also expected Lottoland could be an election issue in Queensland.[19]
As of 30 September 2017, the Northern Territory, the only
jurisdiction where lottery betting is licensed, banned licensed sports
bookmakers from taking bets on Australian lotteries.[20]
This was done through a direction of the Northern Territory Attorney General to
the Northern Territory Racing Commission to remove Australian lotteries as an
approved betting contingency.[21]
The RIS notes that this decision followed a letter from the Federal Minister
for Communications, Senator Mitch Fifield, to the Northern Territory
Attorney-General, Natasha Fyles.[22]
This ban effectively means that lottery betting operators, such as Lottoland,
can now only accept bets on foreign lotteries.
Parliamentarians from minor parties, such as Senator
Pauline Hanson from Pauline Hanson’s One Nation and Senator Nick Xenophon from
the former Nick Xenophon Team, also expressed their desire for lottery betting
to be banned.[23]
These stances are explored further in the ‘Policy position of non-government
parties/independents’ section below.
In this climate of various stakeholder, state and
territory government and minor party concerns around lottery betting, a media
release put out by Minister Fifield on 27 March 2018 announced the Government’s
intention ‘to ban betting on lotteries and keno games.’[24]
Specifically, the media release stated:
The Government has formed the view that permitting betting on
these services, also known as ‘synthetic’ lotteries, undermines the long-standing
community acceptance of official lottery and keno products.
These products enjoy community support as they generate an
income stream for small retail businesses and make a significant contribution,
through licence fees and taxation, to the provision of public services and
infrastructure by state and territory government.
...
Online services offering products that involve betting on
lottery outcomes are relatively new and have generated considerable community
concern. Since these concerns were first raised last year, the Government has
listened carefully to a range of groups that have views on the undesirability
of permitting betting on these products.[25]
The Bill was introduced into Parliament the next day on 28
March 2018.
Committee
consideration
On 28 March 2018, the Senate Standing Committee for
Selection of Bills deferred its consideration of the Lottery Betting Bill to
its next meeting.[26]
No other Committee has yet considered the Lottery Betting Bill.
Policy
position of non-government parties/independents
Senator Hanson, the leader of Pauline Hanson’s One Nation
party, has been a lead opponent of the provision of lottery betting services in
Australia. In March 2017, Senator Hanson moved an amendment to the Interactive Gambling Amendment Bill 2016 that would have amended the
IGA to outlaw lottery betting.[27]
The proposed amendment was not agreed to by the Senate.[28]
In her accompanying second reading speech, Senator Hanson stated:
Lottoland is jeopardising the
4½ thousand newsagents who rely on lotteries. They contribute $1.4 billion
across the nation in taxes that are paid and a further $150 million in GST.
Lottoland, you might think, is a big organisation, employs people and brings a
lot to the country, but it does not. It only employs six people. And yet I am
sure we have seen, if not hundreds of thousands, possibly even millions of
dollars leaving the country, tax free.[29]
It has been reported by media that pressure from Senator
Hanson and Pauline Hanson’s One Nation was the key driver in the Government’s decision
to introduce the Bill to ban lottery betting.[30]
Senator Rex Patrick, from the Centre Alliance Party
(formerly the Nick Xenophon Team), is another proponent for a ban on lottery
betting. Senator Patrick moved a second reading amendment on 26 March 2018,
during a debate on the Communications
Legislation Amendment (Online Content Services and Other Measures) Bill 2017,
calling on the Government to legislate to ban lottery betting.[31]
In his second reading speech, Senator Patrick stated:
Lottoland is not a lottery as most people would be familiar
with; it is a synthetic lottery that threatens the viability of the Australian
lottery system and, with it, the incomes of over 4,000 newsagents and lottery
agents who sell legitimate tickets in Australian lotteries.[32]
The Shadow Minister for Communications, Michelle Rowland, is
reported to have stated that the Australian Labor Party has been concerned
about these betting products and will need to consider the Bill.[33]
Ms Rowland has also signalled that one of the matters that the Australian Labor
Party may consult with stakeholders on is ‘whether a transition timeframe
shorter than six months would be optimal’ before any prohibition takes place.[34]
It has been reported in the media that Labor is expected to support the Lottery
Betting Bill.[35]
Position of
major interest groups
Supportive
of a ban on lottery betting
The RIS notes that the Department of Communications and
the Arts consulted with stakeholders across industry, and state and territory
governments on the impacts of lottery betting; the majority of these
stakeholders were supportive of the Government’s proposed policy.[36]
The RIS states the following regarding industry’s broad opposition to lottery
betting:
General consensus from stakeholders is that any sales revenue
that is taken by lottery betting services, and away from traditional lottery
services, will have a negative impact on the lottery industry, state and
territory government taxation collections, and small businesses retailers that
rely on lottery ticket sales.[37]
The RIS also referred to other stakeholder concerns,
including ‘concerns with the unclear terms and conditions of lottery betting
services which appear to suggest that customers will not receive the full
advertised prize should they win.’[38]
As discussed in the ‘Background’ section above, the
‘Lottoland’s Gotta Go!’ campaign represents the main anti-lottery betting
campaign in Australia.[39]
As noted in the RIS:
Television commercials, billboards, in-store posters and
parked trucks adorned with the slogan “Lottoland’s Gotta Go” were used to
publicise the impact that Lottoland is having on newsagents and community
services.[40]
According to the campaign website, the following bodies
form a part of this campaign:
- Australian
Lottery and Newsagents Association
- Lotterywest
(a lottery owned by the Western Australian Government)[41]
- Victorian
Association for Newsagents
- Lottery
Agents Queensland
- Jumbo
(‘a digital retailer of official government and charitable lotteries’[42])
- TattsGroup
(a member of the Tabcorp Group, ‘forms part of Australia’s largest provider of
wagering, lotteries and gaming products and services’[43])
- Lottery
Retailers Association
- Lottery
Agents Association of Tasmania.[44]
The campaign website states that Lottoland ‘is bad news
for Australia’s family run newsagencies, real lottery agents and our local
communities’.[45]
Specifically, the website makes the following claims and arguments against Lottoland’s
lottery betting model:
- Lottoland
is betting and not a ‘real lottery’ where you can buy an actual lottery ticket
for a game
- lotteries
contribute significant amounts of tax revenue to state and territory
governments unlike Lottoland, which is not required to pay tax
- lotteries
support more than 4,000 small business who in some cases rely on more than 50%
of their revenue from lotteries, whereas Lottoland does not support small business
- lotteries
are rigorously regulated whereas lottery betting operators are not.[46]
The RIS is generally supportive of the campaign’s qualitative
claims. While the RIS notes that there is limited data available to quantify
the actual impact of lottery betting, it agrees that any increase in lottery
betting services at the expense of lottery ticket sales will have a general
negative impact on small business revenue as well as on state and territory
revenue.[47]
Outside this campaign, there also seems to be opposition
to lottery betting from some members of the general public. Specifically, the
RIS notes:
As of 5 March 2018, the Standing Committee on Petitions has
referred 66 petitions with a total of 14,775 signatures to the Minister for
Communications for response. The petitioners have called for the Interactive
Gambling Act 2001 to be amended to prohibit lottery betting in Australia.
Petitioners have also raised concerns about the impacts of lottery betting
services on state and territory taxation revenue and the impact on small
business newsagencies. The Department has also received ministerial
correspondence items calling for a similar ban.[48]
With regards to Keno betting, the RIS notes that the ‘expansion
of lottery betting services has concerned the Australian Hotels Association and
Clubs Australia whose members sell Keno lottery tickets in clubs and hotels.’[49]
ClubsNSW is reported to have expressed concern that Lottoland ‘was undermining
the integrity of lottery and keno products... [and] undermining the tax base of
state governments and the revenue base of clubs.’[50]
The Alliance for Gambling Reform, an anti-gambling
advocacy group, has also stated its opposition to lottery betting in Australia.[51]
Against a
ban on lottery betting
The RIS notes that lottery betting operators were not
consulted as part of canvassing regulatory options and would not be supportive
of the proposed policy.[52]
Lottoland, which as stated in the ‘Background’ section above is the primary
provider of lottery betting services in Australia, has made statements about
its opposition to banning lottery betting. Lottoland has launched a petition,
‘Vote for Choice!’ noting that the Lottery Betting Bill’s policy objective will
impact 650,000 customers and that ‘It’s your money and it should be YOUR
choice’.[53]
The Chief Executive Officer (CEO) of Lottoland Australia,
Luke Brill, has argued that banning lottery betting would cement a monopoly for
Tatts Group, thereby disadvantaging newsagents.[54]
Mr Brill also stated that Lottoland does not compete directly with newsagents
as it only accepts bets on overseas lotteries.[55]
In an opinion piece published in the Daily Telegraph on 17 April 2018,
Mr Brill stated:
The government’s proposal looks like a hamfisted and totally
unnecessary move designed to protect and entrench the monopoly currently
enjoyed by Tabcorp-Tatts, which by their own admission spent some $5 million of
shareholders’ money last year trying to run us out of town.
If the legislation is passed by Parliament, Tabcorp-Tatts
will end up controlling the entire lottery market — online and offline.
This will mean reduced choice for hundreds of thousands of
Australian customers who enjoy a flutter on the results of overseas lotteries
via Lottoland.
And it means the little guys — the newsagents — will be at
the mercy of this huge monopoly.[56]
The Newsagents Association of NSW and ACT Ltd (NANA) is
concerned that the Lottery Betting Bill will create a lottery monopoly for
Tatts Group, who NANA says ‘increasingly pass on the costs of the lotteries
system to small business, increase administration requirements and interfere
with the way that Newsagents run their small business.’[57]
In a statement published on NANA’s website, NANA CEO Ian Booth states:
The Newsagents Association of NSW and ACT Ltd (NANA) has
today warned that the passage of changes to the Interactive Gaming legislation
will have the unintended consequence of creating a monopoly position in Lottery
product sales in most of Australia.
NANA says that parliament should defer further consideration
of the Bill until all of the consequences of creating a lotteries monopoly are
resolved.
Rather than address the concerns of lost income to government
and the community through license fees, taxation and community support, the
Bill will effectively outlaw any effective competition in the market for
lotteries products.
The Bill does not address the loss in income to Newsagents
and other lotteries franchisees which has been caused by Tatts Group Lotteries
aggressive push into online purchases. In their most recent financial
reports, Tatts Group reported an increase in online sales to 16.5% of all their
lotteries product sales. Overall, sales have not increased by the same
amount, so Tatts Group Lotteries gain must be at the expense of small
businesses such as Newsagents.[58]
Despite being a member of the ‘Lottoland’s Gotta Go!’
campaign, media reports have suggested that the head of the Victorian
Association for Newsagents was also concerned that the Lottery Betting Bill
would increase Tatts Group’s hold in the lottery market.[59]
In response to the introduction of the Lottery Betting Bill,
Lottoland proposed a profit sharing deal whereby ‘newsagents will receive 20
per cent of profits generated from every bet on overseas lotteries that they
refer to Lottoland Australia, which could be worth thousands of additional
dollars a month to individual newsagents.’[60]
It has been reported that NANA is considering this offer.[61]
On 1 May 2018, it was reported that Liquor and Gaming New South Wales was
investigating the legality of this offer in response to concerns by the
Australian Lottery and Newsagents Association, which supports a ban on lottery
betting.[62]
In early May 2018, the lottery betting company myLotto24,
which is licenced as a bookmaker in the Northern Territory, reportedly decided
to provide lottery betting services in Australia despite the introduction of
the Lottery Betting Bill.[63]
The company is reported to have agreed a profit sharing deal with the Victorian
Association of Newsagents through the association’s Nparcel ecommerce system,
under which 1,200 newsagents will receive a 12 percent commission on myLotto24
deposits made in-store plus three percent from every deposit made online by
referred customers.[64]
This development and the proposed Lottoland profit sharing deal suggest the
industry context is shifting rapidly.
The National Rugby League club, the Manly Sea Eagles, has
also advocated against the Lottery Betting Bill.[65]
The Manly Sea Eagles are sponsored by Lottoland and the club has stated that Lottoland
has provided more than $1 million in funding towards its operations.[66]
The club also reportedly made the following comments in a letter to the Prime
Minister regarding the banning of lottery betting:
... you can see why we are concerned that the proposed ban on
online lottery betting will have a serious financial impact on our
organisation, our members, our supporters and our wider communities...We note
that the principal argument supporting the proposed legislation is that a ban
on online lottery betting will somehow protect newsagents. In fact, we believe
the legislation will do the exact opposite.[67]
Financial
implications
The Explanatory Memorandum states that the ‘Bill is not
expected to have any significant impact on Commonwealth expenditure or
revenue.’[68]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Lottery
Betting Bill’s compatibility with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of that Act. The
Government considers that the Lottery Betting Bill is compatible.[69]
The Parliamentary Joint Committee on Human Rights has not
yet reported on the Bill.
Key issues
and provisions
Banning of
Lottery Betting
Item 3 of Schedule 1 repeals subparagraph
8A(5)(c)(iii) of the IGA and inserts proposed subparagraphs 8A(5)(c)(iii)
and 8A(5)(c)(iiia). This is the key provision of the Lottery Betting
Bill in terms of achieving the Government’s policy objective of banning online
lottery betting in Australia.
The IGA stipulates that prohibited
interactive gambling services[70]
and unlicensed regulated interactive gambling services[71]
cannot be provided to customers in Australia. Section 5 of the IGA defines
a prohibited interactive gambling service as a gambling service
provided in the course of carrying on a business to customers using an internet
carriage service, any other listed carriage service, a broadcasting service,
any other content service or a datacasting service. Gambling service
is broadly defined in section 4 of the IGA to include ‘a service for the
placing, making, receiving or acceptance of bets’.
Subsection 5(3) of the IGA provides a list of
services that are not prohibited interactive gambling services. This
includes an excluded wagering service at paragraph 5(3)(aa). Section
8A of the IGA defines an excluded wagering service. As
currently relevant, subsection 8A(5) provides that a service is an excluded
wagering service to the extent that it relates to betting on an event,
series of events or a contingency, subject to certain exceptions. Current subparagraph
8A(5)(c)(iii) provides one of these exceptions—a service relating to betting on
the outcome of a scratch lottery or other instant lottery. (That is, betting on
the outcome of a scratch lottery or other instant lottery is not an
excluded wagering service.) However, betting on the outcome of lotteries more
broadly, including through an online lottery betting service, is not covered by
the exceptions. Accordingly, as highlighted in the RIS,[72]
lottery betting services are likely to fall within the definition of an excluded
wagering service under subsection 8A(5) and therefore be permitted
under the IGA.
Proposed subparagraph 8A(5)(c)(iii) replaces the
narrow exception related to betting on the outcome of a scratch or instant
lottery with a wider exception that covers betting on the outcomes of any
lottery. Proposed subparagraph 8A(5)(c)(iiia) stipulates that this
extends to betting on a contingency that may or may or not happen in the course
of the conduct of a lottery.
These proposed amendments would effectively ban the
provision of online lottery betting services in Australia as such services
would fall within the definition of prohibited interactive gambling
services under the IGA.
It should be noted that, due to Constitutional constraints,
the effect of the Lottery Betting Bill is restricted to lottery betting
services provided online. The RIS identifies this issue as one potential
constraint of the Bill:
Lottery betting services may still be provided at land-based
venues or in face-to face interactions, however, they will be subject to state
and territory regulation.[73]
If the Lottery Betting Bill becomes law, then under subsections
15(1) and (2) of the IGA, a person will commit an offence if they provide
a lottery betting service with an Australian customer link (that is, any or all
of the service’s customers are physically present in Australia).[74]
The maximum penalty for the offence is 5,000 penalty units ($1,050,000) for
each day that the offence continues.[75]
Subsections 15(2A) and (2B) provide a civil penalty provision for the same
conduct, with a maximum penalty of 7,500 penalty units ($1,575,000) for each
day that the conduct continues.
Section 15 of the IGA also provides that section
15.4 of the Criminal
Code Act 1995 (extended geographical jurisdiction—category D) applies
to the offence of providing a prohibited interactive gambling service
that has an Australian customer link. This means that the offence can be prosecuted
whether or not the conduct or the result of the conduct occurs within
Australia. This may be relevant as lottery betting companies such as Lottoland
are based overseas.[76]
Keno
betting
Item 1 of Schedule 1 inserts a note at the
end of the definition of lottery in section 4 of the IGA. This
note clarifies that a keno-type lottery is an example of a lottery. This
proposed amendment effectively means that the other amendments relating to
banning betting on the outcome or contingent outcome of a lottery will also
apply to keno games.
Keno games likely fall under lottery for the
purposes of the IGA, but this proposed amendment will put this beyond
doubt. This proposed amendment has likely been included in the Lottery Betting
Bill in response to pressure from clubs and hotel groups, who are concerned
with keno betting specifically. The RIS for example refers to the following
comments made by the CEO of the Australian Hotel Association:
Keno is licensed, regulated and taxed by the State and
Territory governments. Keno is sold in hotels across Australia. In comparison
to gambling on overseas lotteries such as offered by Kenoland, the Keno offered
in Australian hotels: pays taxes in Australian states and territories; is
wholly regulated within Australia; is offered only within a supervised retail
environment; and helps hotels support over 50,000 community groups at the grass
roots level.[77]
Telephone
betting
Item 2 of Schedule 1 inserts proposed paragraphs
8AA(1)(aa) and (ab) into the IGA. Current subsection 8AA(1)
provides that for the purposes of the IGA, a telephone betting
service is a gambling service provided on the basis that dealing with
customers are wholly by way of voice calls made using a carriage service and
that satisfies any conditions determined by the Minister.[78]
Subsection 5(3) of the IGA provides that a telephone betting
service is not a prohibited interactive gambling service
under the IGA.
Item 2 will amend the definition of telephone
betting service to exclude a service relating to betting on the outcome
of a lottery or a contingency that may or may not happen in the course of a
lottery. This will ensure that lottery betting services will not be able to circumvent
the intent of the Lottery Betting Bill by providing services by voice phone
calls. The Department of Communications and the Arts noted in the RIS that it
is unlikely that lottery betting ‘services as a telephone betting service would
be a viable business model’.[79]
Other provisions
Transitional
provisions
Subitem 4(2) provides that the amended IGA
will not prevent a person from recovering a debt that was deferred or incurred
before the commencement of the Bill. The Explanatory Memorandum notes that this
subitem ensures that ‘providers of lottery services will not be prevented from
recovering debts deferred or incurred by customers prior to the commencement of
the new prohibitions’.[80]
It has been reported in the media that some customers who
believe they are owed money by lottery betting services are uneasy about the
potential ban due to concerns that they may not be able to get their money back
as they cannot afford to launch their own legal challenge.[81]
A spokesperson for the Northern Territory Government stated that they
anticipated that the Commonwealth Bill would include transitional provisions in
relation to existing disputes.[82]
Parliament may wish to consider whether this provision provides adequate
protection for customers of lottery betting services in such circumstances.
The table in clause 2 of the Bill provides for a
period of six months between when the Bill receives royal assent and when the
proposed amendments in Schedule 1 take effect. As discussed in the
‘Policy position of non-government parties/independents’ section above, the
transition period is one specific matter around which the Australian Labor
Party plans to consult stakeholders.
Constitutional
compensation provision
Subitem 4(1) provides that the proposed amendments
in Schedule 1 will not have any effect to the extent that they would
cause an acquisition of property from a person otherwise than on just terms,
within the meaning of section 51(xxxi) of the Constitution.
Section 51(xxxi) provides that the Commonwealth Parliament may only legislate
with respect to the acquisition of property by the Commonwealth upon ‘just
terms’. Legislation that results in an acquisition of property other than on
just terms will be invalid.
Subitem 4(1) aims to satisfy the ‘just terms’ requirement
by providing that the amendments inserted by items 2 and 3 will be of no effect
to the extent (if any) to which their operation would result in an acquisition
of property otherwise than on ‘just terms’.
In response to prospects of a High Court challenge of the
Lottery Betting Bill by Lottoland, Minister Fifield has reported stated that
the Government is confident that the Lottery Betting Bill is ‘constitutionally
sound’.[83]
Concluding comments
The Lottery Betting Bill effectively prohibits the
provision of online lottery betting services in Australia. Stakeholder reaction
to this Bill has been mixed, and continued developments (such as profit sharing
deals) may further shift stakeholder views on the proposed ban.
[1]. Explanatory
Memorandum, Interactive Gambling Bill 2001, pp. 29–30.
[2]. The
RIS is at pages 6 to 25 of the Lottery Betting Bill’s Explanatory
Memorandum.
[3]. Explanatory
Memorandum, Interactive Gambling Amendment (Lottery Betting) Bill 2018, p.
7.
[4]. Ibid.,
p. 29.
[5]. Ibid.,
p. 7; see also Lottoland, ‘How
does it work?’, Lottoland website.
[6]. Explanatory
Memorandum, Interactive Gambling Amendment (Lottery Betting) Bill 2018, pp.
8–9.
[7]. Ibid.,
p. 9.
[8]. Ibid.,
p. 8.
[9]. Ibid.
[10]. Department
of the Attorney-General and Justice (Northern Territory Government), ‘Racing
Commission: sports bookmakers and betting exchange operators’, Northern
Territory Government website, last updated 3 May 2018.
[11]. P
Fletcher, ‘Second
reading speech: Interactive Gambling Amendment (Lottery Betting) Bill 2018’,
House of Representatives, Debates, 28 March 2018, p. 3053.
[12]. Independent
Gambling Authority South Australia (IGASA), ‘Regulations’, IGASA
website.
[13]. [IGASA],
Approved
Betting Contingencies Notice 2016, [IGASA], South Australia, Version
No. 001, as at 16 June 2016; Authorised
Betting Operations Act 2000 (SA).
[14]. Explanatory
Memorandum, Interactive Gambling Amendment (Lottery Betting) Bill 2018, p.
8. H Kempton, ‘"Not
welcome here": Lottery betting to be outlawed in Tasmania’, news.com.au,
11 October 2017; K Lambie, ‘Drop
in Lotterywest revenue prompts plan to ban Lottoland’, ABC news online,
16 September 2017; R Harris, ‘Sickening
lotto loss [Lotto hit to health cash] [Foreign Lottoland agency linked to tax
revenue dip from local lotteries]’, Herald Sun, 10 July 2017 and Lottoland
may face restrictions in NSW, SBS, 5 October 2017.
[15]. Explanatory
Memorandum, Interactive Gambling Amendment (Lottery Betting) Bill 2018, op.
cit., p. 9.
[16]. Tatts
Group, ‘Lottolands’ Gotta Go! homepage’,
Lottloands’ Gotta Go! website.
[17]. Lottoland’s
Gotta Go! campaign, ‘Advertisement:
Lottoland’s Gotta Go! support your local newsagents’, The Australian, 11 September
2017.
[18]. Explanatory
Memorandum, Interactive Gambling Amendment (Lottery Betting) Bill 2018, pp.
9–12.
[19]. J
Stensholt, ‘Why
does everyone hate Lottoland?’ The Australian Financial Review Weekend,
7 October 2017, p. 27; see also J Barilaro (Deputy Premier and Minister
for Small Business (NSW)) and P Toole, (Minister for Racing (NSW)), Operation
of synthetic lotteries in NSW, media release, 5 October 2017.
[20]. Explanatory
Memorandum, Interactive Gambling Amendment (Lottery Betting) Bill 2018, p.
24; see also J Walls, ‘Lottoland
sent packing’, Northern Territory News, 15 November 2017, p. 3 and
R Harris, ‘Offshore
bookie cut out of lotto betting’, The Herald Sun, 16 November 2017,
p. 10.
[21]. J
Nettleton and N Austin, ‘The
Lottoland effect part 2: weathering the regulatory storm in Australia’, Gambling
Law & Regulation Newsletter, Addisons Lawyers, Sydney, December 2017.
[22]. Explanatory
Memorandum, Interactive Gambling Amendment (Lottery Betting) Bill 2018, p.
24.
[23]. A
Tillett, ‘Number's
up for betting on lotto, say senators’, The Australian Financial Review, 20 September 2017,
p. 6; see also AAP, ‘Call
to outlaw lottery betting’, The Australian, 20 September 2017, p. 2.
[24]. M
Fifield (Minister for Communications), Turnbull
Government to ban ‘synthetic’ lotteries and keno games, media release,
27 March 2018.
[25]. Ibid.
[26]. Senate
Standing Committee for Selection of Bills, Report,
4, 2018, The Senate, 28 March 2018, pp. 3–4.
[27]. Parliament
of Australia, ‘Interactive
Gambling Amendment Bill 2016: proposed amendments’, Australian Parliament
website.
[28]. Australia,
Senate, Journals,
32, 21 March 2017, p. 1091.
[29]. P
Hanson, ‘Second
reading speech: Interactive Gambling Amendment Bill 2016’, Senate, Debates,
20 March 2017, p. 1460.
[30]. J
Kelly, ‘Bets
on foreign lotteries off soon’, The Australian, 27 March 2018, p. 5.
[31]. R
Patrick, ‘Second
reading speech: Communications Legislation Amendment (Online Content Services
and Other Measures) Bill 2017’, Senate, Debates, 26 March 2018,
p. 2179.
[32]. R
Patrick, Second
reading speech: Communications Legislation Amendment (Online Content Services
and Other Measures) Bill 2017, Senate,
Debates, 26 March 2018, p. 2163.
[33]. T
Mcllroy, ‘"Synthetic"
lottery betting ban on way’, The Australian Financial Review, 28
March 2018, p. 4.
[34]. Ibid.
[35]. Courier
Mail, ‘Ban
could see Lottoland gamble on the High Court’, The Courier Mail, 8
May 2018, p. 7.
[36]. Explanatory
Memorandum, Interactive Gambling Amendment (Lottery Betting) Bill 2018, p.
25.
[37]. Ibid.,
p. 15.
[38]. Ibid.,
p. 22.
[39]. Tatts
Group, ‘Lottolands’ Gotta Go! homepage’,
op. cit.
[40]. Explanatory
Memorandum, Interactive Gambling Amendment (Lottery Betting) Bill 2018, p.
9.
[41]. Lotterywest,
‘About us’,
Lotterywest website.
[42]. Jumbo,
‘What we do’, Jumbo
website.
[43]. TattsGroup,
‘TattsGroup homepage’, TattsGroup
website.
[44]. Tatts
Group, ‘Lottolands’ Gotta Go! homepage’,
op. cit.
[45]. Ibid.
[46]. Ibid.
[47]. Explanatory
Memorandum, Interactive Gambling Amendment (Lottery Betting) Bill 2018, pp.
9–11.
[48]. Ibid.,
pp. 12–13.
[49]. Ibid.,
p. 12.
[50]. S
Tasker, ‘Pubs
push for Lottoland ban’,
The Australian, 21 February 2018, p. 19.
[51]. H
Davidson, ‘Lottoland
deal with newsagents 'the last thing' Australia needs, Tim Costello says’, The
Guardian Australia (online edition), 5 April 2018.
[52]. Explanatory
Memorandum, Interactive Gambling Amendment (Lottery Betting) Bill 2018, p.
25.
[53]. Lottoland,
‘Lottoland
petition - vote for choice!’, Lottoland website, 20 April 2018.
[54]. Lottoland,
‘Lottoland
Australia proposes profit sharing offer to Newsagents’, Lottoland Corporate
website, 5 April 2018.
[55]. Ibid.
[56]. L
Brill, ‘Opinion:
It's a sure bet legislation means Aussies lose out’, The Daily Telegraph,
17 April 2018, p. 13.
[57]. I
Booth, ‘Interactive
gaming legislation changes will create a lotteries monopoly’, Newsagents
Association of NSW and ACT Limited website, 28 March 2018.
[58]. Ibid.
[59]. S
Tasker, ‘Lottoland
dangles carrot to get newsagents on side’, The Australian, 6 April 2018, p. 6.
[60]. Lottoland,
‘Lottoland Australia
proposes profit sharing offer to Newsagents’, op. cit.
[61]. iGaming
Business Limited, ‘Aussie
newsagent group reveals potential deal with Lottoland’, iGaming Business
website, 18 April 2018 ; see also C Kruger, ‘Blotto
land’, The
Canberra Times, 20 April 2018, p. 38.
[62]. G
Shipway, ‘Another
hurdle for lotto betting’,
Northern Territory News, 1 May 2018, p. 9.
[63]. Daily
Telegraph, ‘Lottery
provider takes punt on future’, The Daily Telegraph, 4 May 2018, p.
15.
[64]. S
Smith, ‘Feds
fail to scare lotto group’, The West Australian, 4 May 2018, p. 61.
[65]. E
Boyd, ‘Sea
Eagles line up to tackle PM’,
The Daily Telegraph, 3 May 2018, p. 11.
[66]. Ibid.
[67]. Ibid.
[68]. Explanatory
Memorandum, Interactive Gambling Amendment (Lottery Betting) Bill 2018, p.
3.
[69]. The
Statement of Compatibility with Human Rights can be found at page 4 of the Explanatory
Memorandum to the Bill.
[70]. IGA,
section 15.
[71]. Ibid.,
section 15AA.
[72]. Explanatory
Memorandum, Interactive Gambling Amendment (Lottery Betting) Bill 2018, p.
7.
[73]. Explanatory
Memorandum, Interactive Gambling Amendment (Lottery Betting) Bill 2018, p.
23.
[74]. IGA,
section 8.
[75]. Section
4AA of the Crimes
Act 1914 provides that a penalty unit is currently equal to $210.
[76]. Lottoland,
‘Why are we
based in Gibraltar?’, Lottoland Corporate website.
[77]. Explanatory
Memorandum, Interactive Gambling Amendment (Lottery Betting) Bill 2018, p.
12.
[78]. The
Minister has not made a relevant determination.
[79]. Ibid.,
p. 23.
[80]. Ibid.,
p. 29.
[81]. G
Shipway and F Chung, ‘NT
online betting company's gamble’, The Northern Territory News, 7
April 2018, p. 2.
[82]. Ibid.
[83]. Northern
Territory News, ‘Lottoland
mulls High Court challenge,’ The Northern Territory News, 8 May
2018, p. 10.
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