Interactive Gambling Amendment (Credit and Other Measures) Bill 2023 - Commentary on Ministerial Responses [2023] AUSStaCSBSD 211 (8 November 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

Reversal of the evidential burden of proof^[80]

2.2 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.

2.3 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.^[81]

2.4 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.

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

2.6 In Scrutiny Digest 12 of 2023, the committee sought the Attorney-General's advice 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 requested further guidance as to the operation of the defence as the explanatory materials do not adequately address this issue.^[82]

Minister for Communications response^[83]

2.7 The Minister for Communications (the minister) provided a justification in relation to the extension of the existing reversed evidential burden defence in subsection 15C(5) of the Act to apply to the new offence in proposed subsection 15C(1A) of the bill, with reference to the Attorney-General's Department's Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.^[84] The minister advised that whether or not the defendant did not, or could not have known, that the customer was physically present in Australia is a matter likely to be within the knowledge of the defendant. The minister also noted the matters would be time-consuming and burdensome for the prosecution to disprove if the evidential burden were not reversed. Further, guidance to the Court as to how to determine that the person could have ascertained with reasonable diligence that the relevant customer was in Australia is already set out in existing subsection 15C(6).

2.8 In response to the committee's concerns about proposed subsection 15C(5A), the minister provided an excerpt from the explanatory memorandum which contains examples of the types of evidence a defendant could adduce. These include the wagering provider's procedures and systems and technical solutions to prevent payments by prohibited forms. The minister also advised that such knowledge would not be readily available to anyone other than the defendant, and that it would be time-consuming and burdensome for the prosecution to have to disprove these matters.

Committee comment

2.10 In relation to the extension of the existing defence in subsection 15C(5) of the Act the committee notes the minister's advice that whether or not the defendant knew, or could have known, that the relevant person was physically in Australia, is likely to be within the knowledge of the defendant. In relation to proposed subsection 15C(5A), the committee notes the minister's advice that such knowledge would not be readily available to anyone other than the defendant.

2.11 The committee reiterates its view that whether or not a reversed evidential burden for an offence-specific defence will be appropriate is determined by whether or not matters are peculiarly within the knowledge of the defendant, not whether it is likely to be within the knowledge of the defendant.

2.12 The committee also notes the minister's advice that in this instance the relevant matters would be more time-consuming and burdensome for the prosecution to disprove. However, the committee reiterates its view that the appropriateness of a reversed evidential burden for an offence-specific defence is determined by whether the matters would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.

2.13 In light of the above, the committee draws these matters to the attention of senators and leaves to the Senate as a whole the appropriateness of the reversal of the evidential burden of proof in relation to the new offence in proposed subsection 15C(1A).

^[80] 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).

^[82] Senate Scrutiny of Bills Committee, Scrutiny Digest 12 of 2023 (18 October 2023) pp. 33 – 35.

^[83] The minister responded to the committee's comments in a letter dated 31 October 2023. A copy of the letter is available on the committee's webpage (see correspondence relating to Scrutiny Digest 13 of 2023.

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