Commonwealth Numbered Regulations - Explanatory Statements

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INTERACTIVE GAMBLING REGULATIONS 2001 2001 NO. 295

Statutory Rules 2001 No. 295

Issued by the authority of the Minister for Communications, Information Technology and the Arts

Interactive Gambling Act 2001

Interactive Gambling Regulations 2001

Section 70 of the Interactive Gambling Act 2001 (the Act) provides that the Governor-General may make regulations for the purposes of the Act.

Section 61EA in Part 7A of the Act creates an offence of publishing an interactive gambling service advertisement in Australia. Section 61BGA of the Act provides that regulations may provide that an advertisement of a kind specified in the regulations is not an interactive gambling service advertisement for the purposes of Part 7A of the Act.

The purpose of the accompanying regulations is to create an additional exception to the meaning of "interactive gambling service advertisement", as set out in section 61BA of the Act. The exception in the regulations provides that an advertisement that relates to a product or a service that is not an interactive gambling service is not an interactive gambling service advertisement if it cannot reasonably be regarded as intended to promote:

•       an interactive gambling service; or

•       interactive gambling services in general; or

•       a trade mark that is particular to an interactive gambling service; or

•       a domain name or URL (a website) that relates to an interactive gambling service.

The regulations address the following example involving land-based licensed gambling services (which are not interactive gambling services under the Act). If an Australian-licensed land-based casino develops and provides an interactive gambling service wholly to customers outside Australia who are not in designated countries, such a service would not be in contravention of the main offence provisions of the Act. However, if the land-based casino gives a name to its online service that is similar to the name for its land-based licensed service, there is a risk that over time advertisements for the land-based service will be "closely associated", under paragraph 61BA(1)(e) of the Act, with the interactive gambling service that it provides legally outside Australia. The advertising prohibition in Part 7A of the Act, as originally introduced, did not intend to prohibit the advertising of land-based casinos as outlined in this example.

The regulations address this unintended consequence by clarifying that advertisements that relate to a product or a service that is not an interactive gambling service (for example, advertisements by a land-based casino operator for its land-based, legal gambling services) are not prohibited by the Act where those advertisements cannot reasonably be regarded as intended to promote interactive gambling services or particular trade marks, domain names or URLs that relate to interactive gambling services.

Details of the accompanying regulations are in the attachment.

The accompanying regulations commenced on gazettal.

ATTACHMENT

DETAILS OF THE REGULATIONS

Regulation 1 - Name of Regulations

Regulation 1 provides that the name of the accompanying regulations is the Interactive Gambling Regulations 2001.

Regulation 2 - Commencement

Regulation 2 provides that the accompanying regulations commence on gazettal.

Regulation 3 - Interactive gambling service advertisements--exceptions

Regulation 3 creates an exception to the meaning of "interactive gambling service advertisement", which is set out in section 61BA of the Interactive Gambling Act 2001 (the Act).

Section 61EA of the Act creates an offence of publishing an interactive gambling service advertisement in Australia. Subject to certain exceptions, paragraph 61BA(1)(e) provides that an "interactive gambling service advertisement" includes any writing that gives publicity to, or otherwise is intended to promote any words that are closely associated with an interactive gambling service (whether closely associated with other kinds of services or products).

An "interactive gambling service" is defined in section 5 of the Act as a "gambling service" (see definition in section 4) that is provided in the course of carrying on a business and is provided to customers using a communications service. Section 15 of the Act prohibits the intentional provision of interactive gambling services to customers in Australia. Section 15A prohibits the intentional provision of interactive gambling services to customers in countries designated under section 9A of the Act.

A number of gambling services are excluded from the definition of "interactive gambling service". These excluded services are set out in subsection 5(3) of the Act, and it is not the intent of the Act to restrict the provision of these services in any way. The advertising ban does not apply to excluded gambling services listed in subsection 5(3) as those services are not interactive gambling services.

However, paragraph 61BA(1)(e) of the Act may unintentionally prohibit the advertising of certain excluded gambling services where such services develop a "close association" with an interactive gambling service that is provided legally outside Australia. This close association could arise, for example, where a land-based casino (which provides an excluded gaming service as defined in section 8B) gives a name to its legally exported online service that is similar to the name for its land-based licensed service. This possible unintentional effect is intended to be addressed by the regulations.

Section 61BGA of the Act provides that advertisements of a kind prescribed in the regulations are exempt from the definition of "interactive gambling service advertisement" in section 61BA of the Act.

The regulations provide that an advertisement that relates to a product or a service that is not an interactive gambling service is not prohibited by the Act, if it cannot reasonably be regarded as intended to promote:

•       an interactive gambling service; or

•       interactive gambling services in general; or

•       a trade mark that is particular to an interactive gambling service; or

•       a domain name or URL (a website) that relates to an interactive gambling service.

The regulations are intended to permit advertisements by a gambling service provider where those advertisements relate to its non-interactive gambling services, but only if those advertisements cannot reasonably be regarded as intended to promote interactive gambling services as outlined above.

For example, an advertisement for a land-based casino operator about its land-based, legal gambling services will be permitted under the regulations unless it can be reasonably regarded as intentionally promoting an interactive gambling service.

The reference to "a trade mark" in paragraph 3(c) of the regulations is intended to refer to a trade mark that is particular to an interactive gambling service, and is not intended to refer to a trade mark that is common to a non-interactive and an interactive gambling service. The operation of paragraph 3(c) is not intended to prohibit the use of trade marks that might be common to a non-interactive and an interactive gambling service. In addition, the reference to "a trade mark" in paragraph 3(c) of the regulations is not intended to refer to a mere part of a trade mark that is particular to an interactive gambling service, if that part of the trade mark is also used for a non-interactive gambling service.