Recent developments in South Australia continue to blur the lines about what constitutes gambling. The Fair Trading (Gambling Product Retailer Industry Code) Regulation 2015 is the latest example of the South Australian government’s objective to target activities which appear to treat gambling as a normalised activity particularly where those activities are directed at or where children are involved. South Australia is seeking to introduce restrictions on the sale and promotion of toys, with characteristics, such as elements of risk and chance, that are analogous to gambling practices. This crackdown follows previous efforts in 2013 to protect children from social apps that may contain gambling elements.
It is proposed that the Code will require retailers to comply with certain standards relating to the advertisement, presentation and display of gambling style products where they are positioned next to items targeted at children. A further requirement is that gambling style products are to include statements that they are recommended for use by persons over the age of 18.
These products include:
- a set or kit containing devices, equipment and accessories to enable a person to play a prescribed game;
- gambling chips;
- a roulette wheel;
- a pack of playing cards that displays prominently the name of a prescribed game on its packaging; or
- a product, the primary purpose of which is to enable a person to play—
- a game for monetary or other stakes; or
- a game involving the making or accepting of a wager.
“Prescribed games” are defined to include any game that resembles baccarat; bingo, blackjack, poker, pontoon, roulette, or two up.
According to the South Australian government, these reforms are “a bid to safeguard children from forming dangerous habits.”1 The press release states that these reforms are driven by concerns over the normalisation of gambling behaviour in children, and the increased probability of gambling habits that could potentially flow after prolonged exposure to any games which have gambling characteristics.
It is unclear whether these proposals are founded on research, or findings from a study that has been conducted, or reflect a concern that anything that has gambling characteristics is harmful per se. To appreciate the practical effect of the South Australian government’s approach, it is necessary to reflect on the general understanding of the conduct that constitutes gambling under Australian law. In general terms, for an activity to constitute gambling, the relevant game must satisfy three requirements. First, the game must involve chance, or a mix of chance and skill. Secondly, consideration must be present. Lastly, a prize with a discernible monetary value must be provided.
However, many of the products to which the proposed Code will apply do not involve necessarily a monetary prize, nor any spending beyond the initial purchase. It is merely the characteristics of the product that gives rise to the concern. On this basis, it could be argued that these reforms are too stringent.
However, these proposals are indicative of the policy approach of the current South Australian government towards gambling. The “Gambling starts with games” campaign, the Children and Gambling Watch List (the Watch List), and the introduction of the classification system for gambling related products are further examples of the South Australian government’s policies to “reduce the exposure of young South Australians to gambling like games”.2
The proposed Code imposes obligations on a broad range of retail outlets in South Australia, including Big W, K Mart and Woolworths. However, it does not appear to cover online shopfronts or products being supplied online. Also, the proposed Code does not appear to restrict references to these products in media, nor in films or advertisements which may be broadcast to, or capable of being viewed by, persons in South Australia.
This approach may reflect an understanding of the difficulties that would exist in enforcing obligations of this nature in these circumstances. Also, it may be the case that the government considers that it is better to target activities of concern which can be controlled and are within their jurisdiction, rather than putting in place legislative proposals that are too ambitious and difficult to enforce.
The draft Code can be found with this link http://www.cbs.sa.gov.au/wcm/business-and-traders/business-advice/proposed-gambling-product-retailer-industry-code/. The closing date for submissions was Friday, 27 March 2015. The submissions are being considered by the South Australian Government. We will report on the outcome of the government’s review in due course.
