ATMS AND CASH FACILITIES IN LICENSED VENUES BILL 2008

i ATMs and Cash Facilities in Licensed Venues Bill 2008 No. , 2008

Contents

Part 1--Preliminary

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

Commencement .................................................................................. 1

Objects of Act ..................................................................................... 2

Application of Act .............................................................................. 2

Relationship with State and Territory law .......................................... 2

Definitions .......................................................................................... 2

Part 2--Automatic teller machines and other cash facilities

Application ......................................................................................... 6

Automatic teller machines and other cash facilities at

licensed venues ................................................................................... 6

Part 3--Civil penalties

Division A--Obtaining an order for a civil penalty

Federal Court may order person to pay pecuniary penalty for

contravening civil penalty provision .................................................. 8

What is a civil penalty provision?....................................................... 9

Contravening a civil penalty provision is not an offence ................... 9

Persons involved in contravening civil penalty provision .................. 9

Recovery of a pecuniary penalty ........................................................ 9

Division B--Enforceable undertakings relating to

contraventions of civil penalty provisions

Acceptance of undertakings relating to contraventions of

civil penalty provisions..................................................................... 10

Enforcement of undertakings ............................................................ 10

Part 4--Miscellaneous

Regulations ....................................................................................... 11

ATMs and Cash Facilities in Licensed Venues Bill 2008 No. , 2008 1

A Bill for an Act to limit ATM and cash facilities in

licensed venues, and for related purposes

The Parliament of Australia enacts:

Part 1--Preliminary

1 Short title

This Act may be cited as the ATMs and Cash Facilities in Licensed

Venues Act 2008.

2 Commence ment

This Act commences at the end of 28 days after the day on which

this Act receives the Royal Assent.

Part 1 Preliminary

Section 3

2 ATMs and Cash Facilities in Licensed Venues Bill 2008 No. , 2008

3 Objects of Act

The objects of this Act are to limit and reduce the installation of

automatic teller machines and cash facilities in licensed venues.

4 Application of Act

Extension to external Territories

(1) This Act extends to Norfolk Island, the Territory of Cocos

(Keeling) Islands and the Territory of Christmas Island.

Limited extraterritorial application

(2) This Act applies to acts, omissions, matters and things in the

Australian jurisdiction and does not apply to acts, omissions,

matters and things outside the Australian jurisdiction.

5 Relationship with State and Territory law

This Act is not intended to exclude or limit the concurrent

operation of any law of a State or Territory, unless the contrary

intention appears.

6 Definitions

In this Act:

ATM card means any magnetic stripe card or smart chip card

issued by a financial institution to a customer of the financial

institution, which enables that customer, as an ATM cardholder, to

effect ATM transactions.

ATM cardholder means a customer of a financial institution who is

issued an ATM card and who has a PIN for use with it.

ATM transaction means a cash deposit, a cash withdrawal or a

balance enquiry effected by an ATM cardholder's use of an ATM

card and the keying in by the cardholder of the cardholder's PIN at

an ATM.

Preliminary Part 1

Section 6

ATMs and Cash Facilities in Licensed Venues Bill 2008 No. , 2008 3

Australian jurisdiction means the land, waters, seabed and

airspace in, under or above:

(a) Australia; or

(b) an external Territory; or

(d) the continental shelf.

Note:

A reference to Australia or to an external Territory generally includes

a reference to the coastal sea of Australia or the Territory (as

appropriate). See section 15B of the Acts Interpretation Act 1901.

authorised deposit-taking institution means a corporation that is

an authorised deposit-taking institution for the purposes of the

Banking Act 1959.

automatic teller machine or ATM means an electronic hardware

device, owned or operated by or on behalf of a financial institution,

a constitutional corporation, or a person, body corporate or

corporation that uses an eligible communications service to provide

cash facilities, that is capable of automatically dispensing cash in

response to a cash withdrawal transaction initiated by an ATM

cardholder, to be debited against or charged to an account of the

cardholder, through the use of an ATM card issued by a financial

institution that is a member of the Consumer Electronic Clearing

System (CS3) and the keying in by the cardholder of the

cardholder's PIN, and includes limited service devices (cash

dispensers) that only allow for cash withdrawals, although other

transactions such as balance enquiries may also be supported by an

automatic teller machine.

cardholder means an ATM cardholder, an EFTPOS cardholder or

a credit cardholder.

cash facility means:

(a) an ATM; or

(b) an EFTPOS terminal; or

access to the funds in his or her account or to a cash advance

through a credit card.

Part 1 Preliminary

Section 6

4 ATMs and Cash Facilities in Licensed Venues Bill 2008 No. , 2008

Consumer Electronic Clearing System (CS3) means the standards,

policies and procedures coordinated by the Australian Payments

Clearing Association for the purpose of settlement of obligations

incurred between financial institutions that arise from the operation

of the national automatic teller machine and EFTPOS networks.

constitutional corporation means a corporation to which

paragraph 51(xx) of the Constitution applies.

credit card means any magnetic stripe card or smart chip card

issued by a financial institution or a credit card or charge card

company to a customer of the financial institution or the credit card

or charge card company, which enables that customer, as a credit

cardholder, to effect credit card and charge card transactions,

including obtaining cash advances.

credit card company or charge card company means a company

that issues a card that allows the cardholder to purchase goods or

services or to obtain a cash advance against the card at multiple

locations and with entities that are not related to the company

issuing the card.

credit cardholder means a customer of a financial institution or a

credit card or charge card company who is issued with a credit card

or a charge card and who may have a PIN for use with that card.

credit card terminal means an electronic hardware device used to

put into effect a credit card transaction.

credit card transaction means a transaction initiated by a credit

cardholder to be charged to an account of the cardholder, through

the use at point of sale of a credit card issued by a financial

institution or a credit card or charge card company at a credit card

terminal, to purchase goods or services or to obtain a cash advance.

eligible communications service means a communications service

to which paragraph 51(v) of the Constitution applies

EFTPOS means an electronic funds transfer at the point of sale.

EFTPOS card means any magnetic stripe card or smart chip card

issued by a financial institution to a customer of the financial

Preliminary Part 1

Section 6

ATMs and Cash Facilities in Licensed Venues Bill 2008 No. , 2008 5

institution, which enables that customer, as an EFTPOS

cardholder, to effect EFTPOS transactions.

EFTPOS cardholder means a customer of a financial institution

who is issued with an EFTPOS card and who has a PIN for use

with that card.

EFTPOS terminal means an electronic hardware device used to

put into effect an EFTPOS transaction.

EFTPOS transaction means an electronic funds transfer initiated

by an EFTPOS cardholder, to be debited against or charged to an

account of the cardholder, through the use at point of sale of an

EFTPOS card issued by a financial institution that is a member of

the Consumer Electronic Clearing System (CS3), and in the normal

course, the keying in by the cardholder of the cardholder's PIN, at

an EFTPOS terminal, and includes any cash withdrawal, refund

and reversal of any such transfer.

executive officer of a body corporate means a person, by whatever

name called and whether or not a director of the body corporate,

who is concerned in, or takes part in, the management of the body

corporate.

financial institution means a corporation that is an authorised

deposit-taking institution for the purposes of the Banking Act 1959.

licence means a gaming machine licence or a poker machine

licence issued under the relevant laws of a State or Territory.

licensed venue means premises for which a licence is in force.

personal identification number or PIN means the number which is

either issued by a financial institution or a credit card or charge

card company, or selected by the cardholder, for the purpose of

authenticating the use by the cardholder of the ATM card,

EFTPOS card or credit card, as the case may be.

Part 2 Automatic teller machines and other cash facilities

Section 7

6 ATMs and Cash Facilities in Licensed Venues Bill 2008 No. , 2008

Part 2--Automatic teller machines and other cash

facilities

7 Application

This Part applies to:

(a) any financial institution; and

(b) any constitutional corporation; and

eligible communications service to provide cash facilities.

8 Automatic telle r machines and other cash facilities at licensed

venues

(1) Subject to subsections (2) and (3):

(a) a financial institution; or

(b) a constitutional corporation; or

communications service to provide cash facilities;

must not install, own or operate an automatic teller machine or

other cash facility, or allow an automatic teller machine or other

cash facility to be installed or operated on its behalf, at a licensed

venue that allows a cardholder to obtain by means of that

automatic teller machine or other cash facility an amount of cash.

Maximum civil penalty:

2,000 penalty units.

Note:

penalty unit has the meaning given by section 4AA of the Crimes Act

1914.

(2) At a licensed venue:

(a) a financial institution; or

(b) a constitutional corporation; or

communications service to provide cash facilities;

may install, own or operate, or allow to be installed or operated on

its behalf an EFTPOS terminal, a credit card terminal or any other

Automatic teller machines and other cash facilities Part 2

Section 8

ATMs and Cash Facilities in Licensed Venues Bill 2008 No. , 2008 7

cash facility prescribed for the purposes of this subsection, if the

EFTPOS terminal, credit card terminal or other prescribed cash

facility, as the case may be, does not permit cash withdrawals by,

or cash advances to, a card holder.

(3) If there are no other cash facilities within a 5 kilometre radius of

the licensed venue, the Minister may exempt (conditionally or

unconditionally):

(a) a financial institution; or

(b) a constitutional corporation; or

communications service to provide cash facilities;

from the operation of subsection (1).

(4) A condition of an exemption granted under subsection (3) must not

be contravened by:

(a) the financial institution; or

(b) the constitutional corporation; or

eligible communications service to provide cash facilities;

granted the exemption under subsection 3.

Maximum civil penalty:

2,000 penalty units.

Note:

penalty unit has the meaning given by section 4AA of the Crimes Act

1914.

Part 3 Civ il penalties

Division A Obtaining an order for a civ il penalty

Section 9

8 ATMs and Cash Facilities in Licensed Venues Bill 2008 No. , 2008

Part 3--Civil penalties

Division A--Obtaining an order for a civil penalty

9 Federal Court may order person to pay pecuniary penalty for

contravening civil penalty provision

Application for order

(1) Within 6 years of a person (the wrongdoer) contravening a civil

penalty provision, the Minister may apply on behalf of the

Commonwealth to the Federal Court for an order that the

wrongdoer pay the Commonwealth a pecuniary penalty.

Court may order wrongdoer to pay pecuniary penalty

(2) If the Court is satisfied that the wrongdoer has contravened a civil

penalty provision, the Court may order the wrongdoer to pay to the

Commonwealth for each contravention the pecuniary penalty that

the Court determines is appropriate (but not more than the relevant

amount specified for the provision).

Determining amount of pecuniary penalty

(3) In determining the pecuniary penalty, the Court must have regard

to all relevant matters, including:

(a) the nature and extent of the contravention; and

(b) the circumstances in which the contravention took place; and

proceedings under this Act to have engaged in any similar

conduct.

Conduct contravening more than one civil penalty provision

(4) If conduct constitutes a contravention of two or more civil penalty

provisions, proceedings may be instituted under this Act against a

person in relation to the contravention of any one or more of those

provisions. However, the person is not liable to more than one

Civil penalties Part 3

Obtaining an order for a civil penalty Division A

Section 10

ATMs and Cash Facilities in Licensed Venues Bill 2008 No. , 2008 9

pecuniary penalty under this section in respect of the same

conduct.

10 What is a civil penalty provision?

A subsection of this Act (or a section of this Act that is not divided

into subsections) is a civil penalty provision if the words "civil

penalty" and an amount in penalty units is set out at the foot of the

subsection (or section).

11 Contravening a civil penalty provision is not an offence

A contravention of a civil penalty provision is not an offence.

12 Persons involved in contravening civil penalty provision

(1) A person must not:

(a) aid, abet, counsel or procure a contravention of a civil

penalty provision; or

(b) induce (by threats, promises or otherwise) a contravention of

a civil penalty provision; or

or party to, a contravention of a civil penalty provision; or

(d) conspire to contravene a civil penalty provision.

(2) This Division applies to a person who contravenes subsection (1)

in relation to a civil penalty provision as if the person had

contravened the provision.

13 Recovery of a pecuniary penalty

If the Federal Court orders a person to pay a pecuniary penalty:

(a) the penalty is payable to the Commonwealth; and

(b) the Commonwealth may enforce the order as if it were a

judgment of the Court.

Part 3 Civ il penalties

Division B Enforceable undertakings relating to contraventions of civil penalty

provisions

Section 14

10 ATMs and Cash Facilities in Licensed Venues Bill 2008 No. , 2008

Division B--Enforceable undertakings relating to

contraventions of civil penalty provisions

14 Acceptance of undertakings relating to contraventions of civil

penalty provisions

(1) This section applies if the Minister considers that an action taken

by a body corporate after the commencement of this section

contravened one or more civil penalty provisions of Part 2.

(2) The Minister instead of instituting proceedings under

subsection 9(1) may accept a written undertaking given by an

executive officer on behalf of the body corporate in relation to the

action, in which the body corporate:

(a) undertakes to pay a specified amount, within a specified

period to the Commonwealth; or

(b) any other undertaking in connection with that contravention.

(3) The executive officer on behalf of the body corporate may

withdraw or vary the undertaking at any time, but only with the

consent of the Minister.

15 Enforce ment of undertakings

(1) If the Minister considers that an executive officer who gave an

undertaking under section 14 or the body corporate on behalf of

which an undertaking was given under section 14 has breached any

of its terms, the Minister may apply to the Federal Court for an

order under subsection (2).

(2) If the Federal Court is satisfied that the executive officer or the

body corporate has breached a term of the undertaking, the Court

may make one or more of the following orders:

(a) an order directing the executive officer or the body corporate

to comply with that term of the undertaking;

(b) any other order that the Court considers appropriate.

Commonwealth of Australia Bills

ATMS AND CASH FACILITIES IN LICENSED VENUES BILL 2008