Commonwealth of Australia Bills Commonwealth of Australia Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
1998-1999-2000-2001
The
Parliament of the
Commonwealth of
Australia
THE
SENATE
Presented and read a first
time
Interactive
Gambling Bill 2001
No. ,
2001
(Communications, Information Technology and the
Arts)
A Bill for an Act about interactive
gambling, and for related purposes
ISBN: 0642
469164
Contents
A Bill for an Act about interactive gambling, and for
related purposes
The Parliament of Australia enacts:
This Act may be cited as the Interactive Gambling Act
2001.
(1) Subject to this section, this Act commences on the day on which it
receives the Royal Assent.
(2) Part 2 commences on the 28th day after the day on which this Act
receives the Royal Assent.
(3) The following provisions of this Act commence on a day to be fixed by
Proclamation:
(a) Part 3;
(b) section 42;
(c) section 43;
(d) section 48;
(e) section 49;
(f) Part 5.
(4) If the provisions referred to in subsection (3) do not commence
under that subsection within the period of 6 months after the day on which this
Act receives the Royal Assent, those provisions commence on the first day after
the end of that period.
The following is a simplified outline of this Act:
• This Act regulates interactive gambling services by:
(a) prohibiting Australian-based interactive gambling services from being
provided to customers in Australia; and
(b) establishing 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.
• A person may complain to the ABA about prohibited Internet
gambling content.
• If prohibited Internet gambling content is hosted in
Australia and the ABA considers that the complaint should be referred to
an Australian police force, the ABA must refer the complaint to a member of an
Australian police force.
• If prohibited Internet gambling content is hosted outside
Australia, the ABA must:
(a) if the ABA considers that the content should be referred to a law
enforcement agency—notify the content to a member of an Australian police
force; and
(b) notify the content to Internet service providers so that the providers
can deal with the content in accordance with procedures specified in an industry
code or industry standard (for example, procedures relating to the provision of
regularly updated Internet content filtering software to subscribers).
• Bodies and associations that represent Internet service providers
may develop an industry code.
• The ABA has a reserve power to make an industry standard if there
is no industry code or if an industry code is deficient.
In this Act, unless the contrary intention appears:
ABA means the Australian Broadcasting Authority.
access has the same meaning as in Schedule 5 to the
Broadcasting Services Act 1992.
Australia, when used in a geographical sense, includes the
external Territories.
Australian-based interactive gambling service has the meaning
given by section 5.
Note: This definition relates to the offence created by
section 15.
Australian-customer link has the meaning given by
section 8.
Australian police force means:
(a) the Australian Federal Police; or
(b) the police force of a State or Territory.
Australian-provider link has the meaning given by
section 7.
bet includes wager.
broadcasting service means a broadcasting service (as defined
by the Broadcasting Services Act 1992) provided in Australia.
business includes a venture or concern in trade or commerce,
whether or not conducted on a regular, repetitive or continuous basis. To avoid
doubt, the fact that a club or association provides services to its members does
not prevent those services from being services provided in the course of
carrying on a business.
business day means a day that is not a Saturday, a Sunday or
a public holiday in the place concerned.
Chapter 8 agreement has the same meaning as in the
Corporations Law.
civil proceeding includes a civil action.
content service means a content service (as defined by the
Telecommunications Act 1997) provided using a listed carriage
service.
datacasting licence has the same meaning as in the
Broadcasting Services Act 1992.
datacasting service means a datacasting service
(within the meaning of the Broadcasting Services Act 1992) that is
provided in Australia under a datacasting licence.
designated Internet gambling matter has the meaning given by
section 35.
designated notification scheme means a scheme:
(a) in the nature of a scheme for substituted service; and
(b) under which the ABA is taken, for the purposes of this Act, to have
notified each Internet service provider of a matter or thing.
Note: For example, the ABA may make matters or things
available on the Internet (with or without security measures).
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
exempt service has the meaning given by
section 10.
Federal Court means the Federal Court of Australia.
futures contract has the same meaning as in the Corporations
Law.
gambling service means:
(a) a service for the placing, making, receiving or acceptance of bets;
or
(b) a service the sole or dominant purpose of which is to introduce
individuals who wish to make or place bets to individuals who are willing to
receive or accept those bets; or
(c) a service for the conduct of a lottery; or
(d) a service for the supply of lottery tickets; or
(e) a service for the conduct of a game, where:
(i) the game is played for money or anything else of value; and
(ii) the game is a game of chance or of mixed chance and skill;
and
(iii) a customer of the service gives or agrees to give consideration to
play or enter the game; or
(f) a gambling service (within the ordinary meaning of that expression)
that is not covered by any of the above paragraphs.
game includes an electronic game.
industry code has the meaning given by
section 33.
industry standard has the meaning given by
section 34.
Internet carriage service means a listed carriage service
that enables end-users to access the Internet.
Internet content has the same meaning as in Schedule 5
to the Broadcasting Services Act 1992.
Internet service provider has the same meaning as in
Schedule 5 to the Broadcasting Services Act 1992.
listed carriage service has the same meaning as in the
Telecommunications Act 1997.
lottery includes an electronic lottery.
online provider rule has the meaning given by
section 54.
option contract has the same meaning as in Chapter 7 of
the Corporations Law.
prohibited Internet gambling content means Internet content
that is accessed, or available for access, by an end-user in the capacity of
customer of a prohibited Internet gambling service.
Note: This definition relates to the complaints
system.
prohibited Internet gambling service has the meaning given by
section 6.
Note: This definition relates to the complaints
system.
relevant agreement has the same meaning as in the
Corporations Law.
special access-prevention notice means a notice under
section 27.
standard access-prevention notice means a notice under
paragraph 24(1)(c).
standard telephone service has the same meaning as in the
Telecommunications (Consumer Protection and Service Standards) Act
1999.
telephone betting service means a gambling service provided
on the basis that dealings with customers are wholly by way of voice calls made
using a standard telephone service.
ticket includes an electronic ticket.
voice call means:
(a) a voice call within the ordinary meaning of that expression;
or
(b) a call that involves a recorded or synthetic voice; or
(c) if a call covered by paragraph (a) or (b) is not practical for a
particular customer with a disability (for example, because the customer has a
hearing impairment)—a call that is equivalent to a call covered by either
of those paragraphs;
whether or not the customer responds by way of pressing buttons on a
telephone handset or similar thing.
(1) For the purposes of this Act, an Australian-based interactive
gambling service is a gambling service, where:
(a) the service is provided in the course of carrying on a business;
and
(b) the service is provided to customers using any of the
following:
(i) an Internet carriage service;
(ii) any other listed carriage service;
(iii) a broadcasting service;
(iv) any other content service;
(v) a datacasting service; and
(c) the service has an Australian-provider link (see
section 7).
Note: This definition relates to the offence created by
section 15.
(2) Subsection (1) has effect subject to
subsection (3).
Excluded services
(3) For the purposes of this Act, none of the following services is an
Australian-based interactive gambling service:
(a) a telephone betting service;
(b) a service to the extent to which it relates to the entering into of
contracts that, under the Corporations Law, are exempt from a law relating to
gaming or wagering (see section 9);
(c) an exempt service (see section 10).
(1) For the purposes of this Act, a prohibited Internet gambling
service is a gambling service, where:
(a) the service is provided in the course of carrying on a business;
and
(b) the service is provided to customers using an Internet carriage
service; and
(c) the service has an Australian-customer link (see
section 8).
Note: This definition relates to the complaints
system.
(2) Subsection (1) has effect subject to
subsection (3).
Excluded services
(3) For the purposes of this Act, neither of the following services is a
prohibited Internet gambling service:
(a) a service to the extent to which it relates to the entering into of
contracts that, under the Corporations Law, are exempt from a law relating to
gaming or wagering (see section 9);
(b) an exempt service (see section 10).
(1) For the purposes of this Act, a gambling service has an
Australian-provider link if, and only if:
(a) the service is provided in the course of carrying on a business in
Australia; or
(b) the central management and control of the service is in Australia;
or
(c) the service is provided through an agent in Australia; or
(d) the service is provided to customers using an Internet carriage
service, and any or all of the relevant Internet content is hosted in
Australia.
(2) For the purposes of this section, the relevant Internet
content, in relation to a gambling service, is Internet content that is
accessed, or available for access, by an end-user in the capacity of customer of
the service.
For the purposes of this Act, a gambling service has an
Australian-customer link if, and only if, any or all of the
customers of the service are physically present in Australia.
A reference in this Act to contracts that, under the Corporations
Law, are exempt from a law relating to gaming or wagering is a reference
to any of the following:
(a) option contracts covered by subsection 778(1) of the Corporations
Law;
(b) relevant agreements covered by subsection 778(2) of the Corporations
Law;
(c) futures contracts covered by subsection 1141(1) of the Corporations
Law;
(d) Chapter 8 agreements covered by subsection 1141(2) of the
Corporations Law.
(1) The Minister may, by writing, determine that each service included in
a specified class of services is an exempt service for the
purposes of this Act.
(2) A determination under subsection (1) has effect
accordingly.
(3) A determination under subsection (1) is a disallowable instrument
for the purposes of section 46A of the Acts Interpretation Act
1901.
Unless the contrary intention appears, a reference in this Act to the
use of a thing is a reference to the use of the thing
either:
(a) in isolation; or
(b) in conjunction with one or more other things.
(1) This Act binds the Crown in each of its capacities.
(2) This Act does not make the Crown liable to be prosecuted for an
offence.
(3) The protection in subsection (2) does not apply to an authority
of the Crown.
This Act extends to every external Territory.
Unless the contrary intention appears, this Act extends to acts,
omissions, matters and things outside Australia.
(1) A person is guilty of an offence if:
(a) the person intentionally provides an Australian-based interactive
gambling service; and
(b) the service has an Australian-customer link (see
section 8).
Penalty: 2,000 penalty units.
(2) A
person who contravenes subsection (1) is guilty of 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) Subsection (1) does 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: The defendant bears an evidential burden in relation
to the matters in subsection (3) (see subsection 13.3(3) of the Criminal
Code).
(1) If a person has reason to believe that end-users in Australia can
access prohibited Internet gambling content using an Internet carriage service,
the person may make a complaint to the ABA about the matter.
Content of complaint
(2) A complaint under subsection (1) about particular Internet
content must:
(a) identify the Internet content; and
(b) set out how to access the Internet content (for example: set out a URL
or a password); and
(c) if the complainant knows the country or countries in which the
Internet content is hosted—set out the name of that country or those
countries; and
(d) set out the complainant’s reasons for believing that the
Internet content is prohibited Internet gambling content; and
(e) set out such other information (if any) as the ABA requires.
If a person has reason to believe that:
(a) an Internet service provider has contravened a code registered under
Part 4 that is applicable to the provider; or
(b) an Internet service provider has contravened an online provider rule
that is applicable to the provider;
the person may make a complaint to the ABA about the matter.
(1) A complaint under this Division is to be in writing.
(2) However, the ABA may permit complaints to be given, in accordance with
specified software requirements, by way of a specified kind of electronic
transmission.
A person is not entitled to make a complaint under this Division unless
the person is:
(a) an individual who resides in Australia; or
(b) a body corporate that carries on activities in Australia; or
(c) the Commonwealth, a State or a Territory.
(1) The ABA must investigate a complaint made under
Division 1.
(2) Subsection (1) has effect subject to subsections (3) and
(4).
Internet content hosted in Australia—referral of complaint to an
Australian police force
(3) If a complaint relates to Internet content hosted in
Australia:
(a) the ABA must not investigate the complaint; and
(b) if the ABA considers that the complaint should be referred to an
Australian police force—the ABA must:
(i) refer the complaint to a member of an Australian police force;
and
(ii) give written notice to the complainant stating that the complaint has
been so referred.
Frivolous or vexatious complaints
(4) The ABA need not investigate a complaint if:
(a) the ABA is satisfied that the complaint is:
(i) frivolous; or
(ii) vexatious; or
(iii) not made in good faith; or
(b) the ABA has reason to believe that the complaint was made for the
purpose, or for purposes that include the purpose, of frustrating or undermining
the effective administration of this Part.
Notification of the results of an investigation
(5) The ABA must notify the complainant of the results of an investigation
under this section.
Termination of investigation
(6) The ABA may terminate an investigation under this section if the ABA
is of the opinion that it does not have sufficient information to conclude the
investigation.
Referral to Australian police force
(7) The manner in which a complaint may be referred under
subsection (3) to a member of an Australian police force includes (but is
not limited to) a manner ascertained in accordance with an arrangement between
the ABA and the chief (however described) of the police force
concerned.
(8) If a complaint is referred to a member of an Australian police force
under subsection (3), the member may refer the complaint to a member of
another Australian police force.
(9) This section does not, by implication, limit the ABA’s powers to
refer other matters to a member of an Australian police force.
The ABA may investigate any of the following matters if the ABA thinks
that it is desirable to do so:
(a) whether an Internet service provider is supplying an Internet carriage
service that enables end-users to access prohibited Internet gambling content
hosted outside Australia;
(b) whether:
(i) an Internet service provider has contravened a code registered under
Part 4 that is applicable to the provider; or
(ii) an Internet service provider has contravened an online provider rule
that is applicable to the provider.
(1) An investigation under this Division is to be conducted as the ABA
thinks fit.
(2) The ABA may, for the purposes of an investigation, obtain information
from such persons, and make such inquiries, as it thinks fit.
(3) This section has effect subject to Part 13 of the Broadcasting
Services Act 1992 (which confers certain investigative powers on the
ABA).
Civil proceedings do not lie against a person in respect of loss, damage
or injury of any kind suffered by another person because of any of the following
acts done in good faith:
(a) the making of a complaint under Division 1;
(b) the making of a statement to, or the giving of a document or
information to, the ABA in connection with an investigation under this
Division.
(1) If, in the course of an investigation under Division 2, the ABA
is satisfied that Internet content hosted outside Australia is prohibited
Internet gambling content, the ABA must:
(a) if the ABA considers the content should be referred to a law
enforcement agency (whether in or outside Australia)—notify the content
to:
(i) a member of an Australian police force; or
(ii) if there is an arrangement between the ABA and the chief (however
described) of an Australian police force under which the ABA is authorised to
notify the content to another person or body (whether in or outside
Australia)—that other person or body; and
(b) if a code registered, and/or a standard determined, under Part 4
deals exclusively with the designated Internet gambling matters—notify the
content to Internet service providers under the designated notification scheme
set out in the code or standard, as the case may be; and
(c) if paragraph (b) does not apply—give each Internet service
provider known to the ABA a written notice (a standard access-prevention
notice) directing the provider to take all reasonable steps to prevent
end-users from accessing the content.
Note 1: For Internet content hosted in Australia, see
subsection 20(3).
Note 2: The ABA may be taken to have given a notice under
paragraph (c)—see section 31.
(2) For the purposes of paragraph (1)(c), in determining whether
particular steps are reasonable, regard must be had to:
(a) the technical and commercial feasibility of taking the steps;
and
(b) the matters set out in subsection 4(3) of the Broadcasting Services
Act 1992.
(3) Subsection (2) does not, by implication, limit the matters to
which regard must be had.
Recognised alternative access-prevention arrangements
(4) An Internet service provider is not required to comply with a standard
access-prevention notice in relation to a particular end-user if access by the
end-user is subject to a recognised alternative access-prevention arrangement
(as defined by subsection (5)) that is applicable to the
end-user.
(5) The ABA may, by written instrument, declare that a specified
arrangement is a recognised alternative access-prevention
arrangement for the purposes of the application of this Division to one
or more specified end-users if the ABA is satisfied that the arrangement is
likely to provide a reasonably effective means of preventing access by those
end-users to prohibited Internet gambling content.
Note: For specification by class, see subsection 46(2) of
the Acts Interpretation Act 1901.
(6) The following are examples of arrangements that could be declared to
be recognised alternative access-prevention arrangements under
subsection (5):
(a) an arrangement that involves the use of regularly updated Internet
content filtering software;
(b) an arrangement that involves the use of a filtered Internet carriage
service.
(7) An instrument under subsection (5) is a disallowable instrument
for the purposes of section 46A of the Acts Interpretation Act
1901.
Referral to law enforcement agency
(8) The manner in which Internet content may be notified under
paragraph (1)(a) to a member of an Australian police force includes (but is
not limited to) a manner ascertained in accordance with an arrangement between
the ABA and the chief (however described) of the police force
concerned.
(9) If a member of an Australian police force is notified of particular
Internet content under this section, the member may notify the content to a
member of another law enforcement agency (whether in or outside
Australia).
(10) This section does not, by implication, limit the ABA’s powers
to refer other matters to a member of an Australian police force.
(1) If:
(a) in the course of an investigation under Division 2, the ABA is
satisfied that Internet content hosted outside Australia is prohibited Internet
gambling content; and
(b) apart from this subsection, the ABA would be required to take action
under subsection 24(1) in relation to the content; and
(c) a member of an Australian police force satisfies the ABA that the
taking of that action should be deferred until the end of a particular period in
order to avoid prejudicing a criminal investigation;
the ABA may defer taking that action until the end of that
period.
(2) Subsection (1) has effect despite anything in
section 24.
If:
(a) particular Internet content has been notified to Internet service
providers as mentioned in paragraph 24(1)(b); and
(b) the ABA is satisfied that Internet content (the similar Internet
content) that is the same as, or substantially similar to, the
first-mentioned Internet content is being hosted outside Australia;
and
(c) the ABA is satisfied that the similar Internet content is prohibited
Internet gambling content; and
(d) a code registered, and/or standard determined, under Part 4 deals
exclusively with the designated Internet gambling matters;
the ABA must notify the similar Internet content to Internet service
providers under the designated notification scheme set out in the code or
standard, as the case may be.
(1) If:
(a) a standard access-prevention notice relating to particular Internet
content is applicable to a particular Internet service provider; and
(b) the ABA is satisfied that the Internet service provider is supplying
an Internet carriage service that enables end-users to access Internet content
(the similar Internet content) that is the same as, or
substantially similar to, the Internet content identified in the standard
access-prevention notice; and
(c) the ABA is satisfied that the similar Internet content is prohibited
Internet gambling content;
the ABA may give the provider a written notice (special
access-prevention notice) directing the provider to take all reasonable
steps to prevent end-users from accessing the similar Internet content at any
time when the standard access-prevention notice is in force.
Note: The ABA may be taken to have given a notice under this
section—see section 31.
(2) For the purposes of subsection (1), in determining whether
particular steps are reasonable, regard must be had to:
(a) the technical and commercial feasibility of taking the steps;
and
(b) the matters set out in subsection 4(3) of the Broadcasting Services
Act 1992.
(3) Subsection (2) does not, by implication, limit the matters to
which regard must be had.
Recognised alternative access-prevention arrangements
(4) An Internet service provider is not required to comply with a special
access-prevention notice in relation to a particular end-user if access by the
end-user is subject to a recognised alternative access-prevention arrangement
(as defined by subsection 24(5)) that is applicable to the end-user.
Standard access-prevention notice
(1) An Internet service provider must comply with a standard
access-prevention notice that applies to the provider as soon as practicable,
and in any event by 6 pm on the next business day, after the notice was given to
the provider.
Special access-prevention notice
(2) An Internet service provider must comply with a special
access-prevention notice that applies to the provider as soon as practicable,
and in any event by 6 pm on the next business day, after the notice was given to
the provider.
Note: For enforcement, see Part 5.
Internet content may be notified in accordance with this Division
by:
(a) setting out the content; or
(b) describing the content; or
(c) in any other way.
A notification under this Division applies to particular Internet content
only to the extent to which the content is accessed, or available for access,
from an Internet site, or a distinct part of an Internet site, specified in the
notification.
Note: For specification by class, see subsection 46(2) of
the Acts Interpretation Act 1901.
(1) Subject to subsection (2), the ABA may, by written instrument,
formulate a scheme:
(a) in the nature of a scheme for substituted service; and
(b) under which the ABA is taken, for the purposes of this Act, to have
done any or all of the following:
(i) given each Internet service provider a standard access-prevention
notice under paragraph 24(1)(c);
(ii) given each Internet service provider a special access-prevention
notice under section 27.
(2) It is a minimum requirement for a scheme formulated under
subsection (1) that each Internet service provider be alerted by electronic
means to the existence of a notice.
Note: For example, it is not sufficient for the ABA to make
notices available on the Internet (with or without security measures) without
notifying Internet service providers that a notice has been
issued.
(3) Paragraph 24(1)(c) has effect, in relation to a scheme under
subsection (1), as if the reference in that paragraph to each Internet
service provider known to the ABA were a reference to each Internet service
provider.
(4) An instrument under subsection (1) is a disallowable instrument
for the purposes of section 46A of the Acts Interpretation Act
1901.
The following is a simplified outline of this Part.
• A body or association that represents Internet service providers
may develop an industry code that deals with the designated Internet
gambling matters (see section 35).
• An industry code may be registered by the ABA.
• Compliance with an industry code is voluntary unless the ABA
directs a particular Internet service provider to comply with the
code.
• The ABA has a reserve power to make an industry standard if there
is no industry code or if an industry code is deficient.
• Compliance with an industry standard is mandatory.
For the purposes of this Act, an industry code is a code
developed under this Part (whether or not in response to a request under this
Part).
For the purposes of this Act, an industry standard is a
standard determined under this Part.
For the purposes of this Act, the following matters are designated
Internet gambling matters:
(a) the formulation of a designated notification scheme;
(b) procedures to be followed by Internet service providers in dealing
with Internet content notified under paragraph 24(1)(b) or section 26 (for
example, procedures relating to the provision of regularly updated Internet
content filtering software to subscribers).
(1) The Parliament intends that a body or association that the ABA is
satisfied represents Internet service providers should develop a single code
(industry code) that:
(a) is to apply to Internet service providers; and
(b) deals exclusively with the designated Internet gambling
matters.
(2) The Parliament intends that an industry code developed, or industry
standard determined, under this Part is to be in addition to any codes
developed, or standards determined, under Schedule 5 to the Broadcasting
Services Act 1992.
(3) The Parliament intends that this Part does not, by implication, limit
the matters that may be dealt with by any codes developed, or standards
determined, under Schedule 5 to the Broadcasting Services Act
1992.
(4) The Parliament intends that the ABA should make reasonable efforts to
ensure that either:
(a) an industry code is registered under this Part before Part 3
commences; or
(b) an industry standard is registered under this Part before Part 3
commences.
Object
(1) The object of this section is to set out the matters to be dealt with
by an industry code or industry standard.
Matters that must be dealt with by industry code or industry
standard
(2) The Parliament intends that, for Internet service providers, there
should be:
(a) an industry code or an industry standard that deals with; or
(b) an industry code and an industry standard that together deal
with;
the designated Internet gambling matters.
Designated alternative access-prevention arrangements
(3) An industry code or an industry standard may provide that an Internet
service provider is not required to deal with Internet content notified under
paragraph 24(1)(b) or section 26 by taking steps to prevent particular
end-users from accessing the content if access by the end-users is subject to an
arrangement that is declared by the code or standard to be a designated
alternative access-prevention arrangement for the purposes of the application of
this section to those end-users.
(4) An industry code developed by a body or association must not declare
that a specified arrangement is a designated alternative access-prevention
arrangement for the purposes of the application of this section to one or more
specified end-users unless the body or association is satisfied that the
arrangement is likely to provide a reasonably effective means of preventing
access by those end-users to prohibited Internet gambling content.
Note: For specification by class, see subsection 46(2) of
the Acts Interpretation Act 1901.
(5) An industry standard determined by the ABA must not declare that a
specified arrangement is a designated alternative access-prevention arrangement
for the purposes of the application of this section to one or more specified
end-users unless the ABA is satisfied that the arrangement is likely to provide
a reasonably effective means of preventing access by those end-users to
prohibited Internet gambling content.
Note: For specification by class, see subsection 46(2) of
the Acts Interpretation Act 1901.
(6) The following are examples of arrangements that could be declared to
be designated alternative access-prevention arrangements:
(a) an arrangement that involves the use of regularly updated Internet
content filtering software;
(b) an arrangement that involves the use of a filtered Internet carriage
service.
(7) For the purposes of this Act, if an industry code:
(a) deals to any extent with procedures to be followed by Internet service
providers in dealing with Internet content notified under paragraph 24(1)(b) or
section 26; and
(b) makes provision as mentioned in subsection (3);
then:
(c) the code is taken to deal with the matter set out in paragraph 35(b);
and
(d) the code is taken to be consistent with subsection (2).
(8) For the purposes of this Act, if an industry standard:
(a) deals to any extent with procedures to be followed by Internet service
providers in dealing with Internet content notified under paragraph 24(1)(b) or
section 26; and
(b) makes provision as mentioned in subsection (3);
then:
(c) the standard is taken to deal with the matter set out in paragraph
35(b); and
(d) the standard is taken to be consistent with
subsection (2).
(1) This section applies if:
(a) the ABA is satisfied that a body or association represents Internet
service providers; and
(b) that body or association develops an industry code that applies to
Internet service providers and deals exclusively with the designated Internet
gambling matters; and
(c) the body or association gives a copy of the code to the ABA;
and
(d) the ABA is satisfied that the code provides appropriate community
safeguards for the designated Internet gambling matters; and
(e) the ABA is satisfied that, before giving the copy of the code to the
ABA:
(i) the body or association published a draft of the code and invited
members of the public to make submissions to the body or association about the
draft within a specified period; and
(ii) the body or association gave consideration to any submissions that
were received from members of the public within that period; and
(f) the ABA is satisfied that, before giving the copy of the code to the
ABA:
(i) the body or association published a draft of the code and invited
Internet service providers to make submissions to the body or association about
the draft within a specified period; and
(ii) the body or association gave consideration to any submissions that
were received from Internet service providers within that period.
(2) The ABA must register the code by including it in the Register of
industry codes kept under section 53.
(3) A period specified under subparagraph (1)(e)(i) or (1)(f)(i) must
run for at least 30 days.
(4) If:
(a) an industry code (the new code) is registered under this
Part; and
(b) the new code is expressed to replace another industry code;
the other code ceases to be registered under this Part when the new code is
registered.
(1) If the ABA is satisfied that a body or association represents Internet
service providers, the ABA may, by written notice given to the body or
association, request the body or association to:
(a) develop an industry code that applies to Internet service providers
and deals exclusively with the designated Internet gambling matters;
and
(b) give the ABA a copy of the code within the period specified in the
notice.
(2) The period specified in a notice under subsection (1) must run
for at least 120 days.
(3) The ABA must not make a request under subsection (1) unless the
ABA is satisfied that, in the absence of the request, it is unlikely that an
industry code would be developed within a reasonable period.
(4) The ABA may vary a notice under subsection (1) by extending the
period specified in the notice.
(5) Subsection (4) does not, by implication, limit the application of
subsection 33(3) of the Acts Interpretation Act 1901.
(6) A notice under subsection (1) may specify indicative targets for
achieving progress in the development of the code (for example, a target of 60
days to develop a preliminary draft of the code).
(1) If the ABA is satisfied that Internet service providers are not
represented by a body or association, the ABA may publish a notice in the
Gazette stating that, if such a body or association were to come into
existence within a specified period, the ABA would be likely to give a notice to
that body or association under subsection 39(1).
(2) The period specified in a notice under subsection (1) must run
for at least 60 days.
(1) Changes to an industry code are to be achieved by replacing the code
instead of varying the code.
(2) If the replacement code differs only in minor respects from the
original code, section 38 has effect, in relation to the registration of
the code, as if paragraphs 38(1)(e) and (f) had not been enacted.
Note: Paragraphs 38(1)(e) and (f) deal with submissions
about draft codes.
(1) If:
(a) a person is an Internet service provider; and
(b) the ABA is satisfied that the person has contravened, or is
contravening, an industry code that is registered under this Part;
the ABA may, by written notice given to the person, direct the person to
comply with the industry code.
(2) A person must comply with a direction under
subsection (1).
Note: For enforcement, see Part 5.
The ABA may issue a formal warning if an Internet service provider
contravenes an industry code registered under this Part.
(1) This section applies if:
(a) the ABA has made a request under subsection 39(1) in relation to the
development of a code that is to:
(i) apply to Internet service providers; and
(ii) deal exclusively with the designated Internet gambling matters;
and
(b) any of the following conditions is satisfied:
(i) the request is not complied with;
(ii) if indicative targets for achieving progress in the development of
the code were specified in the notice of request—any of those indicative
targets were not met;
(iii) the request is complied with, but the ABA subsequently refuses to
register the code.
(2) The ABA may, by written instrument, determine a standard that applies
to Internet service providers in relation to the designated Internet gambling
matters. A standard under this subsection is to be known as an industry
standard.
(3) Before determining an industry standard under this section, the ABA
must consult the body or association to whom the request mentioned in
paragraph (1)(a) was made.
Note: See also section 52.
(4) A standard under subsection (2) is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act
1901.
(5) The Minister may give the ABA a written direction as to the exercise
of its powers under this section.
(1) This section applies if:
(a) the ABA is satisfied that Internet service providers are not
represented by a body or association; and
(b) the ABA has published a notice under subsection 40(1); and
(c) that notice states that, if such a body or association were to come
into existence within a particular period, the ABA would be likely to give a
notice to that body or association under subsection 39(1); and
(d) no such body or association comes into existence within that
period.
(2) The ABA may, by written instrument, determine a standard that applies
to Internet service providers and deals exclusively with the designated Internet
gambling matters. A standard under this subsection is to be known as an
industry standard.
Note: See also section 52.
(3) A standard under subsection (2) is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act
1901.
(4) The Minister may give the ABA a written direction as to the exercise
of its powers under this section.
(1) This section applies if:
(a) an industry code that:
(i) applies to Internet service providers; and
(ii) deals exclusively with the designated Internet gambling
matters;
has been registered under this Part for at least 180 days; and
(b) the ABA is satisfied that the code is totally deficient (as defined by
subsection (7)); and
(c) the ABA has given the body or association that developed the code a
written notice requesting that deficiencies in the code be addressed within a
specified period; and
(d) that period ends and the ABA is satisfied that it is necessary or
convenient for the ABA to determine a standard that applies to Internet service
providers and deals exclusively with the designated Internet gambling
matters.
(2) The period specified in a notice under paragraph (1)(c) must run
for at least 30 days.
(3) The ABA may, by written instrument, determine a standard that applies
to Internet service providers and deals exclusively with the designated Internet
gambling matters. A standard under this subsection is to be known as an
industry standard.
(4) If the ABA is satisfied that a body or association represents Internet
service providers, the ABA must consult the body or association before
determining an industry standard under subsection (3).
Note: See also section 52.
(5) A standard under subsection (3) is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act
1901.
(6) The industry code ceases to be registered under this Part on the day
on which the industry standard comes into force.
(7) For the purposes of this section, an industry code that applies to
Internet service providers and deals exclusively with the designated Internet
gambling matters is totally deficient if, and only if, the code is
not operating to provide appropriate community safeguards in relation to the
designated Internet gambling matters.
(8) The Minister may give the ABA a written direction as to the exercise
of its powers under this section.
(1) This section applies if:
(a) an industry code that:
(i) applies to Internet service providers; and
(ii) deals exclusively with the designated Internet gambling matters;
and
has been registered under this Part for at least 180 days; and
(b) section 46 does not apply to the code; and
(c) the ABA is satisfied that the code is deficient (as defined by
subsection (7)) to the extent to which the code deals with one of the
designated Internet gambling matters (the deficient matter);
and
(d) the ABA has given the body or association that developed the code a
written notice requesting that deficiencies in the code be addressed within a
specified period; and
(e) that period ends and the ABA is satisfied that it is necessary or
convenient for the ABA to determine a standard that applies to Internet service
providers and deals with the deficient matter.
(2) The period specified in a notice under paragraph (1)(c) must run
for at least 30 days.
(3) The ABA may, by written instrument, determine a standard that applies
to Internet service providers and deals with the deficient matter. A standard
under this subsection is to be known as an industry
standard.
(4) If the ABA is satisfied that a body or association represents Internet
service providers, the ABA must consult the body or association before
determining an industry standard under subsection (3).
Note: See also section 52.
(5) A standard under subsection (3) is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act
1901.
(6) On and after the day on which the industry standard comes into force,
the industry code has no effect to the extent to which it deals with the
deficient matter. However, this subsection does not affect:
(a) the continuing registration of the remainder of the industry code;
or
(b) any investigation, proceeding or remedy in respect of a contravention
of the industry code or section 42 that occurred before that day.
(7) For the purposes of this section, an industry code that applies to
Internet service providers and deals exclusively with the designated Internet
gambling matters is deficient to the extent to which it deals with
a particular one of the designated Internet gambling matters if, and only if,
the code is not operating to provide appropriate community safeguards in
relation to that matter.
(8) The Minister may give the ABA a written direction as to the exercise
of its powers under this section.
If:
(a) an industry standard that applies to Internet service providers is
registered under this Part; and
(b) a person is an Internet service provider;
the person must comply with the industry standard.
Note: For enforcement, see Part 5.
The ABA may issue a formal warning if an Internet service provider
contravenes an industry standard registered under this Part.
(1) The ABA may, by written instrument, vary an industry standard that
applies to Internet service providers if it is satisfied that it is necessary or
convenient to do so to provide appropriate community safeguards in relation to
either or both of the designated Internet gambling matters.
Note: See also section 52.
(2) An instrument under subsection (1) is a disallowable instrument
for the purposes of section 46A of the Acts Interpretation Act
1901.
(1) The ABA may, by written instrument, revoke an industry
standard.
(2) If:
(a) an industry code is registered under this Part; and
(b) the code is expressed to replace an industry standard;
the industry standard is revoked when the code is registered.
(3) An instrument under subsection (1) is a disallowable instrument
for the purposes of section 46A of the Acts Interpretation Act
1901.
(1) Before determining or varying an industry standard, the ABA
must:
(a) cause to be published in a newspaper circulating in each State a
notice:
(i) stating that the ABA has prepared a draft of the industry standard or
variation; and
(ii) stating that free copies of the draft will be made available to
members of the public during normal office hours throughout the period specified
in the notice; and
(iii) specifying the place or places where the copies will be available;
and
(iv) inviting interested persons to give written comments about the draft
to the ABA within the period specified under subparagraph (ii);
and
(b) make copies of the draft available in accordance with the
notice.
(2) The period specified under subparagraph (1)(a)(ii) must run for
at least 30 days after the publication of the notice.
(3) Subsection (1) does not apply to a variation if the variation is
of a minor nature.
(4) If interested persons have given comments in accordance with a notice
under subsection (1), the ABA must have due regard to those comments in
determining or varying the industry standard, as the case may be.
(5) In this section:
State includes the Northern Territory and the Australian
Capital Territory.
(1) The ABA is to maintain a Register in which the ABA includes:
(a) all industry codes required to be registered under this Part;
and
(b) all industry standards; and
(c) all requests made under section 39; and
(d) all notices under section 40; and
(e) all directions under section 42.
(2) The Register may be maintained by electronic means.
(3) The Register is to be made available for inspection on the
Internet.
For the purposes of this Act, each of the following is an online
provider rule:
(a) the rule set out in subsection 28(1);
(b) the rule set out in subsection 28(2);
(c) the rule set out in subsection 42(2);
(d) the rule set out in section 48.
A person is guilty of an offence if:
(a) an online provider rule is applicable to the person; and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes the rule.
Penalty: 50 penalty units.
Note: See also section 57.
(1) This section applies if an Internet service provider has contravened,
or is contravening, an online provider rule.
(2) The ABA may give the provider a written direction requiring the
provider to take specified action directed towards ensuring that the provider
does not contravene the rule, or is unlikely to contravene the rule, in the
future.
(3) The following are examples of the kinds of direction that may be given
to an Internet service provider under subsection (2):
(a) a direction that the provider implement effective administrative
systems for monitoring compliance with an online provider rule;
(b) a direction that the provider implement a system designed to give the
provider’s employees, agents and contractors a reasonable knowledge and
understanding of the requirements of an online provider rule, in so far as those
requirements affect the employees, agents or contractors concerned.
(4) A person is guilty of an offence if:
(a) the person is subject to a direction under subsection (2);
and
(b) the person engages in conduct; and
(c) the person’s conduct contravenes the direction.
Penalty for contravention of this subsection: 50 penalty units.
Note: See also section 57.
(1) A person who contravenes section 55 or subsection 56(4) is guilty
of a separate offence in respect of each day (including a day of conviction for
the offence or any later day) during which the contravention
continues.
(2) If an offence against this Part is a continuing offence, the maximum
penalty for each day that the offence continues is 10% of the maximum penalty
that could be imposed in respect of the principal offence.
The ABA may issue a formal warning if a person contravenes an online
provider rule.
(1) If the ABA is satisfied that a person who is an Internet service
provider is supplying an Internet carriage service otherwise than in accordance
with an online provider rule, the ABA may apply to the Federal Court for an
order that the person cease supplying that Internet carriage service.
(2) If the Federal Court is satisfied, on such an application, that the
person is supplying an Internet carriage service otherwise than in accordance
with the online provider rule, the Federal Court may order the person to cease
supplying that Internet carriage service.
(1) Civil proceedings do not lie against an Internet service provider in
respect of anything done by the provider in compliance with:
(a) a code registered under Part 4 of this Act; or
(b) a standard determined under Part 4 of this Act;
in so far as the code or standard deals with the procedures referred to in
paragraph 35(b).
(2) Civil proceedings do not lie against an Internet service provider in
respect of anything done by the provider in compliance with
section 28.
(1) An application may be made to the Tribunal for a review of any of the
following decisions made by the ABA:
(a) a decision to give an Internet service provider a standard
access-prevention notice;
(b) a decision to give an Internet service provider a special
access-prevention notice;
(c) a decision under section 42 or 56 to:
(i) give a direction to an Internet service provider; or
(ii) vary a direction that is applicable to an Internet service provider;
or
(iii) refuse to revoke a direction that is applicable to an Internet
service provider.
(2) An application under subsection (1) may only be made by the
Internet service provider concerned.
(3) An application may be made to the Tribunal for a review of a decision
of the ABA under section 38 to refuse to register a code.
(4) An application under subsection (3) may only be made by the body
or association that developed the code.
(5) If the ABA makes a decision that is reviewable under this section, the
ABA is to include in the document by which the decision is notified:
(a) a statement setting out the reasons for the decision; and
(b) a statement to the effect that an application may be made to the
Tribunal for a review of the decision.
(6) In this section:
Tribunal means:
(a) before the commencement of Parts 4 to 10 of the Administrative
Review Tribunal Act 2001—the Administrative Appeals Tribunal;
and
(b) after the commencement of Parts 4 to 10 of the Administrative
Review Tribunal Act 2001—the Administrative Review
Tribunal.
Chapter 2 of the Criminal Code (except Part 2.5) applies
to an offence against this Act.
Body corporate
(1) If, in proceedings for:
(a) an offence against this Act; or
(b) an ancillary offence relating to this Act;
it is necessary to establish the state of mind of a body corporate in
relation to particular conduct, it is sufficient to show:
(c) that the conduct was engaged in by a director, employee or agent of
the body corporate within the scope of his or her actual or apparent authority;
and
(d) that the director, employee or agent had the state of mind.
(2) Any conduct engaged in on behalf of a body corporate by a director,
employee or agent of the body corporate within the scope of his or her actual or
apparent authority is taken, for the purposes of a prosecution for:
(a) an offence against this Act; or
(b) an ancillary offence relating to this Act;
to have been engaged in also by the body corporate unless the body
corporate establishes that the body corporate took reasonable precautions and
exercised due diligence to avoid the conduct.
Person other than a body corporate
(3) If, in proceedings for:
(a) an offence against this Act; or
(b) an ancillary offence relating to this Act;
it is necessary to establish the state of mind of a person other than a
body corporate in relation to particular conduct, it is sufficient to
show:
(c) that the conduct was engaged in by an employee or agent of the person
within the scope of his or her actual or apparent authority; and
(d) that the employee or agent had the state of mind.
(4) Any conduct engaged in on behalf of a person other than a body
corporate by an employee or agent of the person within the scope of his or her
actual or apparent authority is taken, for the purposes of a prosecution
for:
(a) an offence against this Act; or
(b) an ancillary offence relating to this Act;
to have been engaged in also by the first-mentioned person unless the
first-mentioned person establishes that the first-mentioned person took
reasonable precautions and exercised due diligence to avoid the
conduct.
(5) If:
(a) a person other than a body corporate is convicted of an offence;
and
(b) the person would not have been convicted of the offence if
subsections (3) and (4) had not been enacted;
the person is not liable to be punished by imprisonment for that
offence.
State of mind
(6) A reference in subsection (1) or (3) to the state of
mind of a person includes a reference to:
(a) the knowledge, intention, opinion, belief or purpose of the person;
and
(b) the person’s reasons for the intention, opinion, belief or
purpose.
Director
(7) A reference in this section to a director of a body
corporate includes a reference to a constituent member of a body corporate
incorporated for a public purpose by a law of the Commonwealth, a State or a
Territory.
Ancillary offence relating to this Act
(8) A reference in this section to an ancillary
offence relating to this Act is a reference to an offence created
by section 6 of the Crimes Act 1914 or Part 2.4 of the
Criminal Code that relates to this Act.
(1) This section applies to a summons or process in any criminal
proceedings under this Act, where:
(a) the summons or process is required to be served on a body corporate
incorporated outside Australia; and
(b) the body corporate does not have a registered office or a principal
office in Australia; and
(c) the body corporate has an agent in Australia.
(2) Service of the summons or process may be effected by serving it on the
agent.
(3) Subsection (2) has effect in addition to section 28A of the
Acts Interpretation Act 1901.
Note: Section 28A of the Acts Interpretation Act
1901 deals with the service of documents.
(4) In this section:
criminal proceeding includes a proceeding to determine
whether a person should be tried for an offence.
In addition to other methods of giving a notice, a notice under this Act
may be given by facsimile transmission.
(1) The following provisions of the Broadcasting Services Act 1992
have effect as if each reference in those provisions to that Act included a
reference to this Act:
(a) section 3;
(b) subparagraph 5(1)(b)(ii);
(c) subsection 5(2);
(d) paragraph 158(n);
(e) paragraph 160(c):
(f) subsection 162(1);
(g) paragraph 168(2)(b);
(h) paragraph 171(2)(a);
(i) section 183;
(j) paragraph 187(2)(b).
(2) Paragraph 18(2)(j) of Schedule 3 to the Broadcasting Services
Act 1992 does not apply to a notice given under this Act.
The ABA’s functions include monitoring compliance with codes and
standards registered under Part 4.
(1) Before 1 July 2004, the Minister must cause to be conducted a
review of the operation of this Act.
(2) The Minister must cause to be prepared a report of a review under
subsection (1).
(3) The Minister must cause copies of the report to be laid before each
House of the Parliament within 15 sitting days of that House after the
completion of the preparation of the report.
This Act is not intended to exclude or limit the operation of a law of a
State or Territory to the extent that that law is capable of operating
concurrently with this Act.
The Governor-General may make regulations prescribing matters:
(a) required or permitted to be prescribed by this Act; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.