Interactive Gambling Amendment (Credit and Other Measures) Bill 2023 [2023] AUSStaCSBSD 186 (18 October 2023)

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Purpose	The Interactive Gambling Amendment (Credit and Other Measures) Bill 2023 seeks to amend the Interactive Gambling Act 2001 to prohibit the use of credit cards, credit related products and digital currency as payment methods for interactive wagering services. It also seeks to create a new criminal offence and civil penalty provision related to this ban and provide the Australian Communications and Media Authority with enhanced powers to enforce the ban.
Portfolio	Infrastructure, Transport, Regional Development, Communications and the Arts
Introduced	House of Representatives on 13 September 2023
Bill status	Before the House of Representatives.

1.124 Item 9 of schedule 1 to the bill seeks to introduce proposed subsection 15C(1A) to the Interactive Gambling Act 2001 (the Act), which creates the offence of: intentionally providing a regulated interactive gambling service that is a wagering service; and accepting, or offering to accept, a prohibited payment method from a customer or prospective customer who is physically present in Australia. The offence carries a penalty of 500 penalty units.

1.125 Item 17 of schedule 1 seeks to amend existing subsection 15C(5) of the Act to extend the application of the defence under this subsection to the offence under proposed subsection 15C(1A). This defence applies where a person did not know and could not with reasonable diligence have ascertained that the customer or prospective customer was physically present in Australia.118F^[87]

1.126 Further, item 18 of schedule 1 seeks to insert proposed subsection 15C(5A), which creates a new defence that applies to the offence under proposed subsection 15C(1A). The defence is applicable to persons where they did not know and could not, with reasonable diligence, have ascertained that they were accepting, or offering to accept, payment using a prohibited method.

1.127 A note to each of these defences clarifies that the evidential burden of proof is reversed.

1.128 Item 13 of schedule 1 also seeks to insert proposed subsection 15C(3A), which imposes a civil penalty of 750 penalty units if a person provides a regulated interactive gambling service that is a wagering service and accepts, or offers to accept, a prohibited payment method from a customer or prospective customer who is physically present in Australia. The committee notes these civil penalties, but is primarily concerned with criminal penalties where the criminal process is being subverted through reversed burdens.

1.129 At common law, it is ordinarily the duty of the prosecution to prove all elements of an offence. This is an important aspect of the right to be presumed innocent until proven guilty. Provisions that reverse the burden of proof and require a defendant to disprove, or raise evidence to disprove, one or more elements of an offence, interferes with this common law right.

1.130 The committee expects any such reversal of the evidential burden of proof to be justified and for the explanatory memorandum to address whether the approach taken is consistent with the Guide to Framing Commonwealth Offences, which states that a matter should only be included in an offence-specific defence (as opposed to being specified as an element of the offence) where:

1.131 In relation to existing subsection 15C(5), the explanatory memorandum states:

The effect of this would be to ensure that the due diligence defence is available in respect of the prohibited conduct at subsections 15C(1A) and (3A) in cases where the person did not know, and could not, with reasonable diligence, have ascertained that the customer, or prospective customer, was physically present in Australia.120F^[89]

1.132 While the committee notes that this is a consequential change, extending the application of this defence to the offence under proposed subsection 15C(1A) is effectively creating a new defence in respect of that offence. The committee considers that this should be accompanied by a justification of why it is appropriate to reverse the evidential burden of proof with reference to the Guide to Framing Commonwealth Offences.

1.133 In relation to proposed subsection 15C(5A), the explanatory memorandum states:

Placing the evidential burden on the defendant in this case is appropriate as the evidentiary matter required to be established—whether the defendant did not know or could not have ascertained with reasonable diligence that the customers, or prospective customer, was making a payment with prohibited form of credit—is a matter exclusively within the knowledge of the defendant. In other words, the defendant is in the best position to provide evidence as to what reasonable diligence checked that undertook and how they did not know or could not have known that the form of payment used was a prohibited form. It would be extremely time consuming and burdensome for the prosecution to disprove this ‘knowledge’ matter than it is for the defendant to established this matter.

While it is a matter for a court to decide, it is anticipated that there will be a range of factors relevant to establishing if the defence is made out. For example, what the wagering provider conveyed to the customer on its website or elsewhere about what forms of payment were allowed or not allowed, and the wagering provider’s procedures and systems, including any technical solutions, steps or other arrangements that they put in place directly or through their merchant/ecommerce provider, to prevent the acceptance of a prohibited form of payment as listed at proposed new subsection 15C(4).121F^[90]

1.134 It is not clear to the committee that the matters to be made out in the defence are peculiar to the defendant's knowledge as the range of factors relevant to establishing this include: information conveyed on a website or systems; and procedures in place to prevent the acceptance of a prohibited form of payment. These can be ascertained readily by the prosecution as evidence that would be attributed to 'reasonable diligence'. However, it is unclear to the committee how a defendant would be able to provide evidence that they did not know the payment method used by a customer was a prohibited method without relying on matters that are not peculiarly within the defendant's knowledge. The committee considers that further guidance as to the operation of this defence would be useful.

1.135 As the explanatory materials do not adequately address this issue, the committee requests the minister's detailed justification as to why it is proposed to use offence-specific defences (which reverses the evidential burden of proof) in relation to the offence under proposed subsection 15C(1A), and requests further guidance as to the operation of the defence.

^[86] Schedule 1, items 17 and 18, existing subsection 15C(5) and proposed subsection 15C(5A). The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(i).

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests

Interactive Gambling Amendment (Credit and Other Measures) Bill 2023 [2023] AUSStaCSBSD 186 (18 October 2023)

Interactive Gambling Amendment (Credit and Other Measures) Bill 2023[85]

Interactive Gambling Amendment (Credit and Other Measures) Bill 2023^[85]