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A Bill for an Act to amend the Interactive Gambling Act 2001, and for related purposes
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Registered 10 Jun 2020
Introduced HR 10 Jun 2020
Table of contents.

2019‑2020

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

Interactive Gambling Amendment (Banning Social Casinos and Other Measures) Bill 2020

 

No.      , 2020

 

(Mr Wilkie)

 

 

 

A Bill for an Act to amend the Interactive Gambling Act 2001, and for related purposes

  

  


Contents

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 1

3............ Schedules............................................................................................ 2

Schedule 1—Amendments                                                                                                3

Interactive Gambling Act 2001                                                                                 3

 

 


A Bill for an Act to amend the Interactive Gambling Act 2001, and for related purposes

The Parliament of Australia enacts:

1  Short title

                   This Act is the Interactive Gambling Amendment (Banning Social Casinos and Other Measures) Act 2020.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  The whole of this Act

The day after this Act receives the Royal Assent.

 

Note:          This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

             (2)  Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Schedules

                   Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1Amendments

Interactive Gambling Act 2001

1  Section 4

Insert:

illegal social casino service means a prohibited social casino service provided in contravention of subsection 15AB(3).

prohibited social casino service means a service for the conduct of a game where:

                     (a)  the game is played for virtual currency; and

                     (b)  the game is a game of chance or of mixed chance and skill; and

                     (c)  a customer of the service gives or agrees to give consideration to play; and

                     (d)  the game is played on an interactive platform.

2  Section 8

After “gambling service”, insert “or prohibited social casino service”.

3  Part 2 (heading)

After “Designated interactive gambling services”, insert “and prohibited social casino services”.

4  After section 15AA

Insert:

15AB  Prohibited social casino services not to be provided to customers in Australia

             (1)  A person commits an offence if:

                     (a)  the person intentionally provides a prohibited social casino service; and

                     (b)  the service has an Australian‑customer link (see section 8).

Penalty:  5,000 penalty units.

             (2)  A person who contravenes subsection (1) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.

             (3)  A person must not provide a prohibited social casino service that has an Australian‑customer link (see section 8).

Civil penalty:          7,500 penalty units.

             (4)  A person who contravenes subsection (3) 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).

             (5)  Subsections (1) and (3) do not apply if the person:

                     (a)  did not know; and

                     (b)  could not, with reasonable diligence, have ascertained;

that the service had an Australian‑customer link.

Note:          In the case of proceedings for an offence against subsection (1), the defendant bears an evidential burden in relation to the matters in subsection (5) (see subsection 13.3(3) of the Criminal Code).

             (6)  For the purposes of subsection (5), in determining whether the person could, with reasonable diligence, have ascertained that the service had an Australian‑customer link, the following matters are to be taken into account:

                     (a)  whether prospective customers were informed that Australian law prohibits the provision of the service to customers who are physically present in Australia;

                     (b)  whether customers were required to enter into contracts that were subject to an express condition that the customer was not to use the service if the customer was physically present in Australia;

                     (c)  whether the person required customers to provide personal details and, if so, whether those details suggested that the customer was not physically present in Australia;

                     (d)  whether the person has network data that indicates that customers were physically present outside Australia:

                              (i)  when the relevant customer account was opened; and

                             (ii)  throughout the period when the service was provided to the customer;

                     (e)  any other relevant matters.

             (7)  Section 15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to an offence against subsection (1).

5  After paragraph 64A(b)

Insert:

                   (ba)  subsection 15AB(3); or

6  After paragraphs 64C(b) and 64D(b)

Insert:

                   (ba)  subsection 15AB(3);

7  After section 64D

Insert:

64E  Injunctions relating to online locations that facilitate provision of prohibited online gambling services or prohibited social casino services

Application for an injunction

             (1)  ACMA may apply, on behalf of the Commonwealth, to the Federal Court to grant an injunction that requires a carriage service provider to take such steps as the Court considers reasonable to disable access to an online location that contravenes, or facilitates a contravention of any of the following:

                     (a)  section 15;

                     (b)  section 15AA;

                     (c)  section 15AB;

                     (d)  section 15A.

             (2)  The application under subsection (1) may also request that the injunction require an online search engine provider (other than a provider that is covered by a declaration under subsection (11)) to take such steps as the Court considers reasonable so as not to provide a search result that refers users to the online location.

Granting the injunction

             (3)  The Court may grant the injunction in the terms, and subject to the conditions, that the Court considers appropriate.

Note 1:       For the matters that the Court may take into account when determining whether to grant the injunction, see subsection (7).

Note 2:       The terms and conditions of the injunction that apply to a carriage service provider under subsection (1) may be different from those that apply to an online search engine provider under subsection (2).

             (4)  Without limiting subsection (3), the injunction may:

                     (a)  require the carriage service provider to take reasonable steps to do either or both of the following:

                              (i)  block domain names, URLs and IP addresses that provide access to the online location and that are specified in the injunction;

                             (ii)  block domain names, URLs and IP addresses that the carriage service provider and ACMA agree, in writing, have started to provide access to the online location after the injunction is made; and

                     (b)  require the online search engine provider to take reasonable steps to do either or both of the following:

                              (i)  not provide search results that include domain names, URLs and IP addresses that provide access to the online location and that are specified in the injunction;

                             (ii)  not provide search results that include domain names, URLs and IP addresses that the online search engine provider and ACMA agree, in writing, have started to provide access to the online location after the injunction is made.

Parties

             (5)  The parties to an action under subsection (1) are:

                     (a)  ACMA; and

                     (b)  the carriage service provider; and

                     (c)  if the application under subsection (1) also sought for the injunction to apply against an online search engine provider—the online search engine provider; and

                     (d)  the person who operates the online location if, but only if, that person makes an application to be joined as a party to the proceedings.

Service

             (6)  ACMA must notify:

                     (a)  the carriage service provider; and

                     (b)  if the application under subsection (1) also sought for the injunction to apply against an online search engine provider—the online search engine provider; and

                     (c)  the person who operates the online location;

of the making of an application under subsection (1), but the Court may dispense, on such terms as it sees fit, with the notice required to be sent under paragraph (c) if the Court is satisfied that ACMA is unable, despite reasonable efforts, to determine the identity or address of the person who operates the online location, or to send notices to that person.

Matters to be taken into account

             (7)  In determining whether to grant the injunction, the Court may take the following matters into account:

                     (a)  whether disabling access to the online location is a proportionate response in the circumstances;

                     (b)  if the application under subsection (1) also sought for the injunction to apply against an online search engine provider—whether not providing search results that refer users to the online location is a proportionate response in the circumstances;

                     (c)  the impact on any person, or class of persons, likely to be affected by the grant of the injunction;

                     (d)  whether it is in the public interest to disable access to the online location;

                     (e)  if the application under subsection (1) also sought for the injunction to apply against an online search engine provider—whether it is in the public interest not to provide search results that refer users to the online location;

                      (f)  whether ACMA complied with subsection (6);

                     (g)  any other remedies available under this Act;

                     (h)  any other matter prescribed by the regulations;

                      (i)  any other relevant matter.

Rescinding and varying injunctions

             (8)  The Court may:

                     (a)  limit the duration of; or

                     (b)  upon application, rescind or vary;

an injunction granted under this section.

             (9)  An application under subsection (8) may be made by:

                     (a)  any of the persons referred to in subsection (5); or

                     (b)  any other person prescribed by the regulations.

           (10)  An application under subsection (8) must not request the Court to vary the injunction so that it applies to an online search engine provider that is covered by a declaration under subsection (11).

Declarations excluding online search engine providers

           (11)  The Minister may, by legislative instrument, declare that:

                     (a)  a particular online search engine provider; or

                     (b)  an online search engine provider that is a member of a particular class;

must not be specified in an application under subsection (1) or (8).

Costs

           (12)  A carriage service provider or, if applicable, an online search engine provider is not liable for any costs in relation to the proceedings unless the provider enters an appearance and takes part in the proceedings.

8  After section 69A

Insert:

69B  Regulations about unenforceability of agreements relating to illegal social casino services

Agreements

             (1)  The regulations may provide:

                     (a)  that an agreement has no effect to the extent to which it provides for the payment of money for the supply of an illegal social casino service; and

                     (b)  that civil proceedings do not lie against a person to recover money alleged to have been paid in connection with an illegal social casino service.

Deadline for making regulations

             (2)  The Minister must take all reasonable steps to ensure that regulations are made for the purposes of this section within 6 months after the commencement of this section.

Definition

             (4)  In this section:

agreement means an agreement, whether made orally or in writing.