In response to growing community concerns, a number of additional consumer protection measures have been introduced into Australian gambling law which will impact upon the business of online wagering operators around the country. It is more important than ever for Australian licensed online wagering operators to be aware of obligations under the law and to adapt their operational and promotional activities accordingly.
With this in mind, set out below are the most recent changes to the regulatory environment relating to wagering in New South Wales, Victoria and at the Federal level.
Inducements and Penalties in NSW
The New South Wales Government has introduced amendments to the Betting and Racing Act 1998 (NSW) (NSW Act) which further restrict the advertising of inducements to residents of NSW and introduce harsher penalties.
The commencement date of these amendments remains unknown (although we believe it may be late May 2018), however, these changes will impact substantially on the manner in which licensed wagering operators can promote their betting services in NSW and more generally.
NSW Inducement Prohibition
The Betting and Racing Regulation 2012 (NSW) previously prohibited the publication of any advertisement that offered an inducement to participate in any wagering activity, including any inducement to open a betting account (NSW Inducement Prohibition). In practice, betting operators were able to publish advertisements to the world at large that offered inducements, provided that NSW residents were expressly excluded and were not able to accept the offer.
The amended NSW Inducement Prohibition means that these disclaimers will no longer be sufficient. Going forward, no inducements can be advertised openly by licensed betting operators where those inducements can be viewed by persons in NSW, irrespective of whether or not the inducement is capable of being accepted by a person in NSW. This has ramifications well beyond NSW as, for some advertising, it is not possible to exclude persons in NSW from accessing the relevant material – the only way to address the issue is to remove the relevant information completely.
As a small comfort for publishers (including affiliates), the NSW Act clarifies that no liability arises where the gambling advertisement is in the form provided or approved by the betting operator and where the publisher is not otherwise notified by the regulator that the advertisement may contravene the NSW Act.
The penalties for contravention of the prohibitions relating to gambling advertising and inducements under the NSW Act for corporations have increased tenfold, with corporations facing penalties of up to $55,000 per offence and individuals facing penalties of up to $5,500 per offence. Directors could also face liability for offences committed by a corporation, including a finding that they have committed a criminal offence and a fine of up to $5,500.
A number of other changes will come into effect on the commencement date of the amendments. These relate mostly to the scope of the advertising offences.
Community Safeguards in Victoria
Victoria has introduced a number of amendments to the Gambling Regulation Act 2003 (VIC) (Victorian Act) addressing community concerns relating to the proliferation of gambling advertising. These provisions came into effect on 15 March 2018.
Victorian Advertising Prohibitions
In an effort to limit public exposure to gambling advertising in places which are “hard to avoid”, the Victorian Act now prohibits the display of gambling advertising on public transport, within 150 metres of a school and on public roads, road infrastructure and road reserves. These prohibitions will extend to both static betting advertising (including billboards, banners, rolling static displays and the like) and to moveable and digital billboards displaying moving or video images.
The prohibitions do not extend to advertising on the outside of gambling service providers’ offices, or inside retail premises (where the gambling service provider’s services are available) or at race tracks or sporting grounds.
The Minister will now have the power to either prohibit or impose a condition on betting on certain contingencies where the Minister considers that betting on the contingency is contrary to the public interest. Submissions may be made by affected parties before the relevant prohibition/condition comes into effect on a permanent basis. In determining whether to exercise this power, the Minister may have regard to any responsible gambling or consumer protection objective, but must not consider whether the proposed condition or prohibition will affect State revenue or harm Victorian businesses.
Given the timing of the introduction of this amendment to the Victorian Parliament, it has been suggested that this power is designed to allow the Minister to prohibit (or otherwise restrict) the operation of secondary lotteries in Victoria on public interest grounds. To our knowledge, no such announcement has been made and, indeed, there is no reference to secondary lotteries in either the text of the bill, its explanatory memorandum or the second reading speech.
On the other hand, we anticipate that this power may be extended to restrict betting on certain events on public interest grounds, for example, betting on amateur sports events in Victoria.
Siren-to-siren advertising ban
The Australian Communications and Media Authority (ACMA) has approved and registered new industry codes which come into effect on 30 March 2018 and ban gambling advertisements during the broadcast of live sports on commercial free-to-air TV, pay TV and radio. This siren-to-siren ban on gambling advertising is a response to increasing community concerns relating to the scheduling and quantity of gambling advertising during the broadcast of live sporting events on television, and in particular the impact on children.
These codes prohibit gambling advertising and the promotion of odds during the period from five minutes before the scheduled start of the sporting event until five minutes after the conclusion of the sporting event, where the event occurs between the hours of 5:00am and 8:30pm.
Although the consequence of failing to comply with these rules is borne by the broadcaster, these restrictions will have a significant impact on the ability of gambling operators to advertise their services during live sporting events.
Online content service providers
These siren-to-siren restrictions will be extended to online content service providers by the Communications Legislation Amendment (Online Content Services and Other Measures) Bill 2017 (Communications Bill). The Communications Bill was passed by both Houses of Parliament on 28 March 2018.
The Communications Bill will enable the ACMA to prepare industry rules for online content service providers in consultation with stakeholders; however, this process will not begin until the Communications Bill is passed. It will also allow the ACMA to exempt certain online content service providers from these rules, in addition to the exemptions specifically prescribed by the Communications Bill (which includes an exemption in relation to online simulcast services broadcast by SBS).
During the consultation period, a number of submissions were received from industry stakeholders calling for exemptions in relation to secondary lottery advertisements, such as Lottoland (which has not been accepted), and online content service providers that utilise age-gating mechanisms. These exemptions were not included in the final text of the Communications Bill.
These measures impact substantially on the ability of gambling operators to promote their gambling products nationally, in certain locations and at certain times. Coupled with the proposed point of consumption tax, the continued viability of some of the corporate bookmakers will be a matter of some doubt as a result.