Bills Digest No. 99, 2017–18
PDF version [799KB]
Er-Kai Wang
Consultant
Michele Brennan
Law and Bills Digest Section
3 May 2018
This Digest was published after the Bill had passed
the Parliament
Contents
Purpose of the Bill
Background
Committee consideration
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Key issues and provisions
Appendix A
Appendix B
Date introduced: 6
December 2017
House: Senate
Portfolio: Communications
and the Arts
Commencement: The day
after Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the Federal
Register of Legislation website.
All hyperlinks in this Bills Digest are correct as at
May 2018.
Purpose of
the Bill
The Communications Legislation Amendment (Online Content
Services and Other Measures) Bill 2017 (the Bill) is part of the Government’s
Broadcast and Content Reform Package announced in May 2017.[1]
The Bill seeks to amend the Broadcasting
Services Act 1992 (BSA) to create a regulatory framework which
can be used by the Australian Communications and Media Authority (ACMA) to
impose gambling promotion restrictions on online content service providers. It
also empowers the ACMA (if directed by the Minister) to determine program
standards about gambling promotional content which apply to certain
broadcasters and subscription providers. Consequential amendments are made to
the Australian
Communications and Media Authority Act 2005 (the ACMA Act) and the
Enhancing Online
Safety Act 2015.
As explained in further detail below, the Government intends
that most gambling promotions will be prohibited from five minutes before the
scheduled start of live coverage of a sporting event until five minutes after the
conclusion of the sporting event, where the event occurs between 5am and
8.30pm.[2]
Stricter rules apply to commentator betting odds promotions and representative
venue-based promotions, which will be prohibited from 30 minutes before the
scheduled start of live coverage of a sporting event until 30 minutes after the
conclusion of the sporting event, where the event occurs between 5am and
8.30pm.[3]
The advertising prohibitions will be imposed on broadcasters through amendments
to broadcasting codes of practice[4]
and on online content service providers through rules to be made by ACMA under proposed
Schedule 8 to the BSA, inserted by item 22 of the Bill. The
Bill provides a framework through which gambling advertising restrictions can
be imposed, rather than imposing such restrictions directly.
Background
Broadcast and Content Reform
Package
The Government announced its Broadcast and Content Reform
Package (Reform Package) in May 2017.[5]
One of the objectives of the Reform Package was to protect children from
exposure to gambling promotion during live sports programs. The Minister for
Communications, Senator Mitch Fifield described the proposed further
restrictions on gambling advertising as providing ‘a community dividend’.[6]
Other goals set in the Reform Package include improving the sustainability of
Australia’s free-to-air broadcasting sector and supporting the creation of high
quality Australian content.[7]
Other aspects of the Reform Package will be implemented by the Broadcasting
Legislation Amendment (Broadcasting Reform) Act 2017 and the Commercial
Broadcasting (Tax) Act 2017, which introduce significant changes to
media regulation in Australia, including abolishing the ’75 per cent
audience reach rule’ and the ‘two out of three cross-media control rule’. These
Acts also amended the anti-siphoning scheme, abolished broadcasting licence
fees and introduced a new interim transmitter licence tax.[8]
ACMA will be provided with $50 million funding between 2018–19
and 2020–21 to implement the Reform Package.[9]
Current regulation of gambling
advertising
Advertisement of gambling services, online or otherwise,
is currently regulated by federal, state and territory laws as well as the
broadcast industry codes of practice and the self-regulatory framework for
advertising established by the Australian Association of National Advertisers.[10]
The Interactive
Gambling Act 2001 (IGA) regulates the provision of ‘interactive
gambling services’.[11]
It prohibits the publication of certain interactive gambling service
advertisement to Australians.[12]
On 13 September 2017, major amendments to the IGA came into effect.[13]
The amendments, among other things, aimed at reducing the provision of illegal
online gambling services to Australians through stronger enforcement and
disruption measures. In particular, the amended IGA extended the
advertising prohibition to unlicensed regulated interactive gambling services
in Australia.[14]
The ACMA can investigate complaints in relation to broadcasting
and datacasting services as well as advertising of gambling services.[15]
State and territory gambling regulations, consumer
protection and fair trading laws regulate gambling services and advertisement
of gambling.[16]
The state and territory laws relating to gambling control primarily focus on
racing, poker machines and casinos. Queensland, the ACT, Victoria and the
Northern Territory are the only jurisdictions that have legislation that
specifically addresses interactive gambling.[17]
Committee
consideration
Senate Environment and
Communications Legislation Committee
On 7 December 2017 the Senate referred the Bill to the Senate Environment and Communications Legislation Committee for
inquiry.[18]
The Committee reported on 12 February 2018 and the majority of the Committee recommended
that the Bill be passed.[19]
The Australian Greens issued a dissenting report arguing that the Bill ‘is
welcome, but incomplete’ and that it:
...does not, in its current form, provide adequate safeguards
against regulatory bypass and thus leaves open the opportunity for some
broadcasters to enjoy monopoly rights to promote gambling content in
contradiction with community expectations and expert advice on harm minimisation...
The Bill should not proceed in its current form until such
opportunity is closed through amendment.[20]
Labor Senators issued additional comments, which are
discussed below.
The Committee received fourteen submissions.[21]
The views of submitters are discussed below.
Senate Standing Committee for the
Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills (Scrutiny
Committee) raised a number of concerns with the Bill, as set out below.[22]
Broad delegation of administrative
powers
Section 51 of the ACMA Act
provides ACMA with a broad delegation power, under which any or all of ACMA’s functions
and powers may be delegated to ACMA staff and members, other than those set out
under section 53. Section 53, as currently relevant, provides that various
licensing powers under the BSA
(including the power to cancel or suspend licences, or impose, vary or revoke a
licence condition) are not able to be delegated. Paragraph 53(2)(k)
currently provides that the power to ‘issue, or extend the time for compliance
with, a notice’ under the BSA (other than a notice under Part 9C of the BSA,
which deals with access to commercial television broadcasting services provided
with the use of a satellite) is not able to be delegated. Item 2 of the
Bill will amend paragraph 53(2)(k) of the ACMA Act to exclude notices
under, or relating to, Schedule 8 of the BSA from the reach of paragraph
53(2)(k), in the same way as notices under Part 9C of the BSA. (Schedule
8 of the BSA will be inserted by item 22 of the Bill and will
allow ACMA to make online content service provider rules). The result is that
ACMA will be able to delegate, under section 51 of the ACMA Act, the
power to issue a notice under Schedule 8 of the BSA, or any other notice
under the BSA that relates to Schedule 8. The power to extend time for
compliance with such a notice will also be able to be delegated to any ACMA
staff member.
The Committee drew attention to its ongoing concern with
legislation that allows the delegation of administrative powers to a broad class
of persons and stated its preference that ‘delegates be confined to the holders
of nominated offices or to members of the Senior Executive Service [SES]’.[23]
The Committee asked the Minister to provide more detailed
justification for the amendment to paragraph 53(2)(k) of the ACMA Act
and suggested that it may be appropriate to amend the Bill to limit the delegation
of the ability to issue, and extend time for compliance with, notices under
Schedule 8 of the BSA to persons who hold special attributes,
qualifications or qualities.[24]
The Minister responded to the Committee’s comments on 21
February 2018.[25]
The Minister advised the Committee that the ability to delegate the power to
issue notices under Schedule 8 of the BSA will provide ‘greater
flexibility and efficiency in the day to day administration of the proposed
online content service provider rules’.[26]
The Minister also stated that although the proposed approach would allow
delegation to members of staff below the SES level ‘this does not necessarily
mean that the ACMA would exercise the power in such a way’.[27]
The Committee responded that it ‘has not generally
accepted a desire for administrative flexibility or efficiency as sufficient
justification for the broad delegation of administrative powers at any level’
and reiterated its view that it would be appropriate to amend the Bill to
restrict the range of people to whom powers may be delegated.[28]
Limitation on merits review
The Committee is concerned that the Bill would empower the
ACMA, under legislative instruments, to not only set gambling promotion program
standards and make online content provides rules; but also determine which of
its decisions under those standards and rules are subject to merits review by
the Administrative Appeals Tribunal (AAT).[29]
No limitation is set by the Bill as to the ACMA’s power to determine which (or
what kind) of its decisions under those instruments will be merits reviewable,
nor does the Bill set out any matters or considerations that ACMA must take
into account when making such a decision.
The Committee asked the Minister to provide more detailed
justification for this approach. It also sought the Minister’s advice on
whether it might be appropriate to amend the Bill to prescribe classes of
decision that must be subject to review, or matters that ACMA must take into
account before determining whether a particular decision will be reviewable.[30]
The Minister’s response advised the Committee:
As neither the content of any gambling promotion program
standard nor the online content service provider rules is yet known, it is not
possible to identify particular types of decisions of an administrative
character that might be made by the ACMA under those instruments.[31]
The Minister noted that, as legislative instruments, the gambling
promotion program standards and online content provider rules will be subject
to Parliamentary scrutiny and disallowance.[32]
In response, the Committee acknowledged:
... the difficulty in identifying the relevant decisions that
could be made under rules that are yet to be made. However, it remains unclear
to the committee why the Bill could not be amended to prescribe general matters
that the ACMA must take into account before determining whether a particular
decision, or class of decisions, will be subject to merits review, or otherwise
to provide (at least high-level) guidance for the making of such a determination.[33]
Broad delegation of legislative
power
Item 22 of the Bill will insert proposed Schedule
8 into the BSA, under which ACMA will be empowered to make online
content service provider rules. Subclause 13(1) of proposed Schedule
8 would allow those rules to make provision for or in relation to
prohibiting or regulating gambling promotional content provided on online
content services in conjunction with live coverage of a sporting event. Proposed
subclause 13(2) provides that the rules may require online content service
providers to ensure that explanatory content relating to the application of the
rules is made available in certain circumstances.
Clauses 15 and 16 of proposed Schedule 8
provide that ACMA may determine that an online content service or service provider,
or a class of services or providers is not subject to rules made for the
purposes of subclauses 13(1) or (2) or specified aspects of
those rules. Clause 15 specifies matters that ACMA must consider in deciding
whether to make a determination under that provision. Clause 16 does not
set out relevant considerations. A determination under clause 15 that
exempts an individual service or service provider would not be a legislative
instrument and will not be subject to parliamentary scrutiny or disallowance (proposed
subclause 15(14)). A determination under clause 16 that exempts a
class of services or service providers would be a legislative instrument and therefore
subject to parliamentary scrutiny and disallowance.
The Committee sought ‘detailed justification’ from the
Minister for the breadth of ACMA’s proposed powers under clauses 15 and 16
of proposed Schedule 8, including ‘examples of when it is envisaged that
such powers would be exercised’.[34]
The Committee also asked the Minister to consider whether the Bill should be
amended so that clause 16 of proposed Schedule 8 provides
guidance on relevant considerations when making a determination, as is the case
with clause 15.[35]
The Minister advised that flexibility was required due to
the rapidly evolving nature of the online content sector and the diversity of
businesses within that sector. As an example of when it might be appropriate to
exempt a service from the rules, the Minister referred to:
...instances where children are unable to access the content
provided by a particular online content service (and so there is minimal risk a
child would be exposed to gambling promotional content provided on the online
content service).[36]
The Minister did not consider it appropriate to amend clause
16 of proposed Schedule 8 of the BSA to insert guidance on
the exercise of ACMA’s powers under that provision and felt that the scrutiny
to which decisions under clause 16 would be exposed by virtue of being
disallowable legislative instruments is a sufficient check on ACMA’s powers.[37]
In response the Committee asked that the key information
provided in the Minister’s response be incorporated into the Explanatory
Memorandum to the Bill.[38]
Policy position of
non-government parties/independents
Australian Labor Party
The ALP supported the Bill as ‘a step in the right
direction’ but expressed concern that it:
...may not go far enough to address community
concerns because it continues to permit gambling ads during live sport, on the
SBS, on commercial and subscription broadcasting and online at times when
children may still be watching sport.[39]
Labor Senators on the Environment and
Communications Legislation Committee did not dissent from the Committee’s
recommendation that the Bill be supported, but made additional comments in the
Committee report, criticising the Government for a perceived delay in
introducing the legislation.[40]
Labor Senators were also sympathetic to concerns raised by SBS that the
regulation of SBS programming by means other than the SBS Code of Practice
would be contrary to the statutory independence of SBS.[41]
Reflecting this concern, Labor proposed an amendment to the Bill in the Senate,
which would have removed SBS from the regulatory regime to be established by
the Bill.[42]
The proposed amendment was not supported by the Senate.[43]
Australian Greens
As set out above, Greens Senators on the Environment
and Communications Legislation Committee dissented from the Committee’s
recommendation supporting the Bill and considered that the Bill should not
proceed in its current form.[44]
In debate on the Bill in the Senate, the
Greens proposed amendments to the Bill, including extending the timeframe
during which gambling advertisements would be prohibited to 30 minutes before
the start and after the conclusion of a relevant sporting event (rather than
five minutes before and after, as proposed in the Bill) and ensuring that
gambling promotion program standards and online content service provider rules
cannot exempt broadcasters or providers based on audience share or the number
of end users.[45]
The proposed amendments were not supported by the Senate.[46]
Nick Xenophon Team (NXT)
The Nick Xenophon Team (NXT) supported the Bill, but felt
that it ‘does not go far enough’.[47]
Accordingly, Senator Stirling Griff moved amendments to the Bill to:
...include a prohibition on all gambling ads
during the hours of 5 am to 8.30 pm during G-rated programs and any sporting
event on TV, radio or online, regardless whether the event is live or not. In
instances where a sporting event has started but not finished before 8.30 pm,
the NXT amendments will also extend the prohibition of gambling ads to 30
minutes after the conclusion of the sporting event.
The proposed amendments were not supported
by the Senate.[48]
Position of
major interest groups
Anti-gambling organisations and
children’s advocates
Victorian
Inter-Church Gambling Taskforce, Victorian Local Governance Association and
Alliance for Gambling Reform (submission 2)
In their joint submission, these three organisations
advocate for simple legislation that bans gambling advertising altogether.[49]
The submission supports the Bill, but argues it would benefit from the
following amendments:
- Rather
than compliance and enforcement being complaint driven, as proposed in the
Bill, relevant media outlets and service providers should be required to submit
their gambling promotional material and plans to the ACMA prior to the actual
advertising activity taking place. This may prevent breaches of the rules from
occurring in the first place.[50]
- The
organisations would prefer that exemptions from the online content service
provider rules (under clauses 15 and 16 of proposed
Schedule 8 of the BSA, at item 22 of the Bill) should not be
available.[51]
If the exemptions are to remain, the organisations consider that economic
benefits to the service provider should not be grounds for exemptions and ACMA
should be required to also consider the likelihood of an exemption causing harm
and the number of children who are likely to be exposed to the gambling
promotion as a result of the exemption.[52]
- The
period when restrictions on gambling promotional content apply should be
extended. It should start when the broadcast of the sporting event starts and
end when the entire event broadcast ends (that is, it should apply to any pre-
or post-game broadcast rather than merely the game or match itself).[53]
Victorian
Responsible Gambling Foundation (VRGF) (submission 5)
The Victorian Responsible Gambling Foundation is a statutory
authority accountable to the Victorian Parliament. It is governed by a board
that is accountable to the Minister for Consumer Affairs, Gaming and Liquor
Regulation. Its mission is on gambling harm prevention and support.[54]
The Foundation’s submission supports the gambling
promotional restrictions proposed in the Bill.[55]
It recommended that the restrictions be widened in terms of time zones so that
they are adequate to protect all children. In other words, the restrictions
should be in place from 5am AEST/AEDT to 8.30pm WAST.[56]
The Foundation further recommends that start and finishing
time restrictions should be five minutes before the cross to the ground or
event venue and five minutes after all players have left the ground or playing
area.[57]
Australian
Council on Children and the Media (ACCM) (submission 8)
ACCM is the peak not-for-profit community organisation
that provides support to families, industry and decision makers in building and
maintaining a media environment that fosters the health, safety and well-being
of Australian children.[58]
To the ACCM, the Bill will create obstacles to the
effective regulation of gambling promotion, such as the requirement that ACMA
may only make a gambling promotion program standard if directed by the Minister.[59]
ACCM also argues that the 8.30pm cut-off time is
unrealistic as it assumes that children would not be watching television or
accessing the internet after that time.[60]
UNICEF
Australia (submission 13)
UNICEF Australia considers that the approach taken in the
Bill is not sufficiently strict and recommends a comprehensive prohibition on relevant
gambling advertising, contained in legislation.[61]
It recommends, among other things, that Option 6 as explained in the Regulation
Impact Statement (RIS) for the Bill be adopted.[62]
This option proposes comprehensive prohibition of gambling promotion across all
platforms between 5am and 8.30pm every day.[63]
Flinders
Centre for Gambling Research (FCGR) (submission 14)
FCGR conducts studies into the health, social, economic
and political impact of gambling on society including the community, families
and individuals.[64]
In its submission, FCGR agrees with concerns raised in other submissions of the
need for a ministerial direction to trigger the process of determining program standards
and considered instead that ACMA ‘should be required, under legislation, to
determine a standard on gambling advertising, consistent with current requirements
for children’s television content’.[65]
FCGR expressed particular concern at ASTRA’s suggestion that fantasy sports be
excluded from the advertising restrictions, arguing that:
- fantasy
sports share the same psychological mechanisms involved in more traditional
wagering products, such as intermittent reinforcement
- many
fantasy sports platforms are associated with large corporations that provide
traditional forms of gambling, which allow them to promote their products
across the fantasy sports sites and
- there
is a growing trend for gambling corporations to seek association with fantasy
sports platforms and young people involved in fantasy sports are at risk of
being exposed to an increasing amount of gambling promotional material.[66]
The
gambling industry
Tabcorp
(submission 1)
In its brief submission, Tabcorp supports the principle of
the Bill but raises concerns that it may provide an avenue for the granting of
a class exemption for synthetic lotteries. Tabcorp explains that synthetic
lotteries are bets on the outcomes of overseas lotteries, rather than
government-regulated lottery draws.[67]
Responsible
Wagering Australia (RWA) (submission 10)
RWA is a peak body representing the interest of
Australia’s online wagering industry. Its members include some of the largest
online gambling companies, such as Ladbrokes and Bet365. RWA supports the Bill
but recommends the following amendments:
- for
consolidation of responsibility purposes, the Department of Communications be
given the role of considering and granting exemptions, instead of ACMA
- online
wagering industry providers should be given an exemption as they are required
to age gate their services and verify the identity of their customers and
- a
clear commencement date for the restrictions. Although the Minister for
Communications has given an indication that the restrictions will apply from
March 2018, the Bill empowers the ACMA to determine its own timeframes.[68]
Sporting
organisations
Coalition
of Major Professional and Participation Sports Inc. (COMPPS) (submission 3)
As reported by the ABC, Australia’s major sporting codes
have opposed the proposed restrictions on gambling promotional content during
live broadcast of sporting events. [69]
The codes have argued that restrictions will diminish the value of the
television rights their codes attract.
According to the ABC, the National Rugby League (NRL) has
a commercial deal with Sportsbet worth $60 million, and half of the NRL's sixteen
teams have a corporate bookmaker as a major sponsor. The AFL has a $10 million
a year deal with CrownBet.[70]
Another issue raised by the codes was that the proposed change
will put at risk the integrity agreements they have with Australian-based
licensed betting agencies. Those agreements impose information sharing
arrangements on the bookmakers and ensure the AFL and NRL can monitor and
police any gambling by players, coaches and staff. The codes raised the
possibility that if betting operations go offshore, the level of control the
codes currently have would be lost.[71]
In their joint submission to the Senate Committee inquiry
into the Bill, the AFL, NRL, Cricket Australia, Tennis Australia and others
argued that the existing gambling regulatory framework (including Codes of
Practice governing free-to-air, Pay TV and online broadcast) is sufficient. The
submission argues that the restrictions proposed by the Bill would adversely affect
the revenue raising capacity of major sporting codes, which would impact the
codes’ ability to fund integrity programs, grassroots development programs,
community programs and so on.[72]
Media
organisations
Australian Subscription Television
and Radio Association (ASTRA) (submission 4)
ASTRA is the peak body representing the subscription media
industry in Australia. Its members include channels whose product offering is
based primarily on the broadcast of live sport, both on the broadcast platform
and through online products. ASTRA indicates that it understands the
legislative intentions of this Bill but prefers that restrictions on gambling
promotion be implemented in the co-regulatory codes of practice, rather than
through legislation.[73]
ASTRA’s submission indicated that it was in the process of
making changes to its Code of Practice.[74]
It argues that the proposed restrictions would have a greater impact on its
members than free-to-air TV broadcasters, because of the substantial portion of
programming of live coverage of sport that their members provide.[75]
In summary, ASTRA is concerned that:
- restrictions
on gambling promotions during online coverage of live sport, as proposed in the
Bill, exceed that in the ASTRA Code of Practice[76]
- there
are inconsistencies between the Bill and ASTRA Code[77]
and
- the
existing program standards power as set out in the BSA, which requires
that this power is to be exercised only if there is a breach of industry codes,
should be maintained.[78]
ASTRA recommends that gambling advertisements for fantasy
sports should be excluded from the restrictions proposed in the Bill.[79]
Communications
Alliance Ltd (CAL) (submission 6)
The Communications Alliance Ltd is a representative body
of the Australian communications industry.[80]
One of the concerns raised by the Communications Alliance relates to the record
keeping rules that may be included in any gambling promotion program standard specified
by the ACMA under proposed sections 125A of the ACMA Act (item
13 of the Bill). Proposed subsections 125A(7) and (8) would
allow the gambling promotion program standard to require broadcasters to keep
audio-visual records of program content provided in conjunction with live
coverage of a sporting event, which can be provided to ACMA if a complaint has
been made.
In its brief submission, the Communications Alliance
indicates that were such record-keeping rules to be included in a gambling
promotion program standard, significant time and costs implications would ensue
from establishing, maintaining and administering the records.[81]
Commercial
Radio Australia (CRA) (submission 7)
Commercial Radio Australia (CRA) is the peak industry body
representing the interests of commercial radio broadcasters throughout
Australia.[82]
CRA indicates that further record keeping obligations
proposed by the Bill would be likely to have a significant impact on radio
stations in regional and rural areas, which frequently operate with limited
staff and resources.[83]
Special
Broadcasting Service (SBS) (submission 9)
As a public broadcaster, the Special Broadcasting Service
(SBS) is of the view that it should not be included in the list of broadcasters
and online content service providers to whom this Bill applies. It argues that its
inclusion in the regulatory regime established by the Bill would compromise the
editorial independence of the SBS, which is guaranteed by the provisions of the
Special
Broadcasting Service Act 1991.[84]
SBS has concerns about the ACMA’s power to impose
financial penalties on it as a public broadcaster; as well as the approach
taken by the Bill, under which audiences are allowed to complain to the ACMA
directly, rather than the situation under the existing complaint handling
process where complainants are required to approach the broadcaster first
before escalating a concern to the ACMA.[85]
As discussed above, when the Bill was debated in the
Senate, Labor proposed an amendment to remove SBS from the scope of the Bill,
but the amendment was not supported by the Senate.[86]
Free TV
Australia Limited (Free TV) (submission 11)
Free TV supports the Bill in general, but expressed
concerns similar to those raised by others including:
- that
the advertising prohibitions should apply to broadcasters and online service
providers from the same commencement time
- the
ability of ACMA to determine gambling promotion program standards on direction
from the Minister
- additional
record keeping obligations and
- enforcement
of the rules on offshore operators.[87]
Digital
Industry Group Incorporated (DiGi) (submission 12)
DiGi is a not for profit industry
association with members such as Facebook, Microsoft, Twitter, Google, and
Yahoo!.
DIGI considers that there has been limited consultation
with the digital industry about the Bill and its potential impact on its
members. DIGI raised concerns similar to those in other submissions and
suggests that the digital industry is different from the broadcasting industry
and a different set of self-regulatory Codes of Practice should be developed.[88]
Financial
implications
The Explanatory Memorandum indicates that the measures in
this Bill are not expected to have any direct financial impact on Commonwealth
revenue or expenditure.[89]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed
the Bill’s compatibility with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[90]
Parliamentary Joint Committee on
Human Rights
The Parliamentary Joint Committee on Human Rights considers
that the Bill does not raise human rights concerns.[91]
Key issues
and provisions
The Bill does two key things. First, it amends the Broadcasting
Services Act 1992 (BSA) to allow ACMA, on direction by the
Minister, to determine a gambling promotion program standard that would apply
to broadcasters in relation to the live coverage of a sporting event (proposed
section 125A of the BSA at item 13 of the Bill). Secondly, it
would add proposed Schedule 8 to the BSA to allow ACMA to make
rules about gambling promotional content provided on an online content service
in conjunction with live coverage of a sporting event (item 22 of the
Bill). Accordingly, the Bill provides a framework through which gambling advertising
during live sporting events can be restricted, but does not impose any restrictions
itself.
Broadcasting restrictions
The Explanatory Memorandum to the Bill indicates that the Government
intends that gambling advertising restrictions will be imposed on broadcasters
through amendments to industry codes of practice and that proposed section
125A of the BSA will only be employed if industry fails to self-regulate.[92]
Broadcasting codes of practice are developed by industry and approved by ACMA ‘once it is satisfied that broadcasters have undertaken public
consultation and the codes contain appropriate community safeguards’.[93] ACMA
has approved amendments to the broadcasting codes to implement new rules about
gambling advertising during the broadcast of live sports.[94]
The new rules took effect on 30 March 2018.[95]
Online content restrictions
Item 22 of the Bill would add proposed Schedule
8 to the BSA to establish a legislative framework that:
- allows
the ACMA to make online content service provider rules about gambling
promotional content provided on an online content service in conjunction with
live coverage of a sporting event[96]
- allows
the ACMA to determine if an online content service, an online content service
provider or a class of services or service providers is exempt from the rules[97]
- sets
out civil penalties for contraventions of the rules[98]
and
- allows
ACMA to give remedial directions to an online content service provider if any
breaches of the rules occur.[99]
The Bill provides that a decision made by the ACMA under
the online content service provider rules will be reviewable by the
Administrative Appeals Tribunal as long as the rules provide that the decision
is reviewable.[100]
Impact on advertising revenue and value of sports rights
As noted above, Australia’s major sporting codes argue
that any prohibition or restriction on gambling promotional content or
advertising will diminish the value of the television rights their codes
attract.[101]
ABC News reported that the National Rugby League (NRL) has a commercial deal
with Sportsbet worth $60 million, and half of the NRL's sixteen teams have a
corporate bookmaker as a major sponsor; while the AFL has a $10 million a
year deal with CrownBet. [102]
However, experience with the introduction of prohibitions
on tobacco advertising suggest that gambling advertising restrictions are
unlikely to diminish the value of sporting television rights, or advertising
revenue for TV broadcasters, subscription service providers and online content
providers. For example, in 2014 in the context of Irish consideration of
regulation of alcohol advertising and sponsorship of sports, it was noted:
Given the lack of transparency regarding the quantity of
sports sponsorship revenue, it is difficult to know the extent to which the
sports bodies in receipt of sponsorship will be affected. Sporting bodies may
be initially negatively impacted financially by a loss of alcohol industry
funding. Sporting organisations around the world predicted calamity if denied
access to tobacco industry sponsorship. However, sport survived after the
departure of tobacco money. This was studied most intensively in Australia.
There, tobacco brands were major sponsors of cricket, Australian Rules football
and motor sport. All of these sports protested loudly prior to the ban. They
all indicated that there were no alternative sponsors and they would face
financial disaster. The complete tobacco sponsorship ban came into effect
in 1996, at which point the total revenue received by sport from all
sponsorship sources was 350 million dollars. Four years later, far from
falling, sports sponsorship revenue had doubled to 700 million dollars per
annum, and this excluded all sponsorship connected to the Olympics in Sydney.[103]
(emphasis added)
In relation to advertising, as distinct from sports
sponsorship, one study noted that ‘the ban on tobacco advertising on Australian
television and radio stations came into effect on 1 September 1976... advertising
revenue for both radio and television continued to increase after the ban on
tobacco advertising’.[104]
The experience of the impact on the prohibition of tobacco
advertising and sponsorship, appears to suggest that negative impacts on
advertising revenue, sponsorship or the value of TV rights for sporting events
are not likely to occur and that other forms of advertising will replace
gambling promotions, with revenues either remaining constant or, as was the
case after the tobacco ban, increasing.
Rules are to be in a legislative
instrument
Clause 11 of proposed Schedule 8 of the BSA,
inserted by item 22 of the Bill, specifies that the online content
service provider rules are to be prescribed in a legislative instrument and as
such be subject to parliamentary scrutiny and disallowance under the Legislation Act
2003. Subclause 13(1) of proposed Schedule 8 would allow
those rules to make provision for or in relation to prohibiting or regulating
gambling promotional content provided on online content services in conjunction
with live coverage of a sporting event. Proposed subclause 13(2)
provides that the rules may require online content service providers to ensure
that explanatory content relating to the application of the rules is made
available in certain circumstances.
Limitation on merits review
Section 204 of the BSA sets out decisions under
that Act that are reviewable by the Administrative Appeals Tribunal (AAT). Subsection
204(1) contains a table of reviewable decisions and the person who may apply
for review of each decision. Item 14 of the Bill will add decisions made
under subclauses 15(1) to (4) and 26(2) of proposed
Schedule 8 of the BSA to the list of reviewable decisions. Accordingly,
decisions by ACMA to refuse, vary or revoke an individual exemption from the
online content service provider rules, or to give, vary or refuse to revoke a
remedial direction to an online content service provider, will be reviewable by
the AAT.
Item 15 of the Bill will add proposed subsections
204(3) to (5) to the BSA. Proposed subsection 204(3) applies
in the event that ACMA makes a gambling promotion program standard under proposed
section 125A of the BSA (on direction from the Minister). Proposed
subsection 204(4) will apply to the online content service provider rules
made under proposed Schedule 8 of the BSA. The proposed subsections
provide that decisions made by the ACMA under a gambling promotion program
standard or the online content service provider rules are reviewable by the AAT
as long as the standard or rules (as appropriate) provide that the decision is
reviewable.
As mentioned above, concerns were raised by the Standing Committee
for the Scrutiny of Bills that the ACMA would have significant discretion in
determining which of its decisions will or will not be subject to merits review.[105]
Furthermore, no limitation has been set as to the ACMA’s power to determine
which (or what kind) of its decisions will be merits reviewable, or any matters
or considerations that ACMA must take into account when making such a decision.[106]
Definitions
What can be covered by the rules?
Clause 11 of proposed Schedule 8 to the BSA
allows ACMA to make online content service provider rules dealing with
matters that are required or permitted, under the BSA, to be dealt with
in those rules. Clause 13 of proposed Schedule 8 provides that
the online content service provider rules may prohibit or regulate ‘gambling
promotional content provided on online content services in conjunction with
live coverage of a sporting event’. The meanings of these component
terms are examined below.
Gambling promotional content
Under clause 2 of proposed Schedule 8 to the
BSA, ‘gambling promotional content’ means:
(a) advertising content
(b) sponsorship content or
(c) promotional content that
relates to a gambling service.
‘Gambling
service’ is defined at clause 18 of proposed Schedule 8
to the BSA as a service:
- for
the placing, making, receiving or acceptance of bets
- with
a sole or dominant purpose of introducing individuals who wish to make or place
bets to individuals willing to receive or accept those bets
- for
the conduct of a lottery or the supply of lottery tickets
- for
the conduct of a game that is played for money or anything else of value, is a
game of chance or of mixed chance and skill and which a person must give
consideration to take part in or
- that
comes within the ordinary meaning of ‘gambling service’ and is not covered by
any of the above points.
Online content service
In proposed Schedule 8 to the BSA an ‘online
content service’ is a service that delivers content through an internet
carriage service to people who have equipment capable of receiving that
content, or that allows end-users to access content using an internet carriage
service, where the service is provided to the public and has a ‘geographical
link to Australia’ (clause 3). (The term ‘geographical link to
Australia’ is explained below.) However, certain services that would otherwise
fall within the definition of online content service (such as services that
allow end users to communicate by voice or video calls, emails and instant messaging)
are specifically excluded from the definition (paragraphs 3(1)(e) to
(q)). ‘Exempt online simulcast services’ are also excluded
from the definition. An exempt online simulcast service is a service that does
no more that provide a stream of content that is identical to the stream of
programs transmitted on TV or radio (either free-to-air or by subscription)
simultaneously or almost simultaneously with the stream of programs (clause
4 of proposed Schedule 8 to the BSA). In addition, ACMA will
be able to determine, by disallowable legislative instrument other services
that do not fall within the definition of online content service (paragraph
3(1)(r)).
Online content
service provider
Under clauses 2, 3 and 6 of proposed
Schedule 8 of the BSA (at item 22 of the Bill), an ‘online
content service provider’ is defined as a person who provides an online
content service but excludes a person who merely supplies an internet carriage
service that enables content to be delivered or accessed; or merely provides a
billing service, or a fee collection service in relation to an online content
service.
An ‘online content service’ means a service
that:
- delivers,
or allows end-users to access, content using an internet carriage service
- is
provided to the public and
- has
a geographical link to Australia.
Geographical
link to Australia
Under clause 5 of proposed Schedule 8, a
service will have a geographical link to Australia if an ordinary
reasonable person would conclude that:
- the
service is targeted at individuals who are physically present in Australia or
- any
of the content provided on the service is likely to appeal to the public, or a
section of the public, in Australia.
The Senate Environment and Communications
Legislation Committee’s report into the Bill identified three matters
that stakeholders had raised in relation to clause 5 of proposed
Schedule 8.[107]
Firstly, ASTRA had asked whether it would be appropriate
for clause 5 to provide an express exception for online content services
which are geo-blocked to Australia.[108]
In response, the Department explained that ACMA will decide on exemptions, but that
if a service is geo-blocked, then it should not be available to Australian
viewers.[109]
Secondly, DiGi considered that the application of clause
5 was too vague and would create an ‘incredibly wide link to Australia’ as
‘potentially all content online may be of interest to Australians’.[110] DiGi
offered three suggestions for dealing with this issue. Firstly, it suggested
that a service should not be regarded as having such a link on the basis that
any of the content provided on that service was likely to appeal to the
Australian public, or a section of it. If this suggestion was not adopted, DiGi
suggested that the legislation should specifically identify the sports that are
sought to be covered and/or apply to com.au domains only.[111] In response to DiGi’s
concerns, the Department explained that ‘likely to appeal’ to the Australian
public or section of it ‘would have its ordinary meaning’ and that ‘every case
would depend on the particular circumstances’.[112] The Department indicated
that the legislation intends to provide broad coverage and enable the ACMA to
determine appropriate exemptions.[113]
Thirdly, Free TV questioned whether it was realistic to
ask ACMA to enforce local laws on international operators.[114] In response, the
Department explained that the ACMA has existing powers in relation to foreign
providers under the IGA and the Enhancing Online
Safety Act 2015.[115]
In conjunction with live coverage
of a sporting event
‘Sporting event’ is not defined exhaustively
in proposed Schedule 8 to the BSA, but rather will have its
ordinary meaning, subject to clause 19, which provides that the term includes
the Olympic Games, the Commonwealth Games and any similar games (clauses 2 and
19). In addition, the online content service provider rules made by ACMA
under proposed Schedule 8 may specify that something is, or is not,
taken to be a sporting event for the purposes of that Schedule (subclauses
19(2) and (3)). Proposed section 125A of the BSA (at item
13 of the Bill), which empowers ACMA to determine a gambling promotion
program standard for broadcasters if directed by the Minister, provides that ‘sporting
event’ in that section is impacted by subclauses 19(1) to (3) of proposed
Schedule 8 to the BSA (proposed subsection 125A(25) of the BSA).
This means that under both the online content service provider rules and any
gambling promotion program standard, the term ‘sporting event’ will have its
ordinary meaning, but will specifically include the Olympic and Commonwealth
Games and may cover or exclude events at the discretion of ACMA.
Under clause 2 of proposed Schedule 8 to the BSA,
coverage of a sporting event will be ‘live’ according to the
ordinary meaning of that term. Delayed coverage will also be regarded as ‘live’
as long as it is provided as if it was live and begins no later than the
conclusion of the sporting event. Proposed subsection 125A(25) of the BSA
(at item 13 of the Bill), provides that the same definition will apply to
any gambling promotion program standard.
Gambling promotional content that is not a ‘commentator
betting odds promotion’ or a ‘representative venue-based promotion’ (these
terms are explained below) will be provided ‘in conjunction with’
coverage of a live sporting event on an online content service if it is
provided on the service during the period beginning five minutes before the
scheduled start of the sporting event and ending five minutes after the
conclusion of the sporting event (subclause 21(1) of proposed
Schedule 8 to the BSA). The online content service provider rules may
define the ‘scheduled start’ and the ‘conclusion’ of a specified sporting event
or a class of events (clauses 22 and 23 of proposed
Schedule 8 to the BSA and subsection 13(3) of the Legislation Act
2003).
A different timeframe applies to a ‘commentator betting odds
promotion’ and a ‘representative venue-based promotion’. A commentator
betting odds promotion is the provision of betting odds (however
described) by a commentator (clause 2 of proposed Schedule 8). A representative
venue-based promotion is gambling promotional content that consists of visual
images (including animated images) or speech of a representative of a gambling
service provider that gives the impression that the representative is at, or
around, the venue of a sporting event (clause 2 of proposed Schedule
8). These two types of gambling promotional content will be considered to
be provided ‘in conjunction with’ coverage of a live sporting
event on an online content service if provided on the service during the period
beginning 30 minutes before the scheduled start of the sporting event and
ending 30 minutes after the conclusion of the sporting event (subclause 21(3)
of proposed Schedule 8 to the BSA). As mentioned above, the
online content service provider rules may define the ‘scheduled start’ and the
‘conclusion’ of a specified sporting event or a class of events (clauses 22
and 23 of proposed Schedule 8 to the BSA and
subsection 13(3) of the Legislation Act).
As set out above, the Bill provides a framework for the
imposition of gambling advertising restrictions, rather than imposing such
restrictions directly. In line with this approach, while the Government has
indicated that it intends that gambling promotions will be prohibited in the
coverage of live sporting events where the event occurs between 5am and 8.30pm,
this timeframe is not set out in the Bill.116]
It will instead be imposed on broadcasters through amendments to broadcasting
codes of practice[117]
and on online content service providers through the online content service
provider rules to be made by ACMA under proposed Schedule 8 to the BSA.
In the Senate Environment and Communications
Legislation Committee inquiry into the Bill, concerns
were raised by stakeholders about how realistic and effective the proposed
timeframe would be.[118]
In particular, the Australian Council on Children and the Media (ACCM) argued:
...the restrictions should apply to the full duration of any
live transmission of a sporting event scheduled to start before 8:30 pm, as
'many parents would reasonably plan for children to stay up until the end of
play; and many adolescents would have a later usual bedtime in any case'.[119]
The Department indicated that it is up to the sporting code
to set its own scheduling and noted that the proposed 5am to 8.30pm timeframe
is consistent with the existing restrictions on the advertising of alcohol and
MA 15+ programing, both of which are permitted after 8.30pm.[120]
Exemptions
Clauses 15 and 16 of proposed Schedule 8 of
the BSA provide that ACMA may determine that an online content service
or service provider, or a class of services or providers is not subject to the
online content service rules or specified aspects of those rules.
Clause 15, which allows ACMA to determine
individual exemptions, specifies matters that ACMA must consider in deciding
whether to make a determination under that provision. These are:
- whether
the service is a small online content service (see below)
- whether
a failure to make the determination would be likely to result in a substantial
adverse impact on the financial circumstances of the provider
- the
likely impact of a failure to make the determination on the quantity and
quality of content provided on the online content service and
- any
other matters as the ACMA considers relevant (subclauses 15(5) and
(6)).
In determining whether a service is a small online content
service ACMA must have regard to the number of end-users who are ordinarily
resident in Australia and any other matter that it considers relevant. ACMA is
permitted to make reasonable assumptions and estimates in determining the
number of end users and may publish a statement on its website explaining the
approach that it will take to determining whether an online content service is
small (subclauses 15(7) to (9)).
Clause 16, which allows ACMA to determine class
exemptions, does not set out relevant considerations in deciding whether to
make a determination.
A determination under clause 15 that exempts an
individual service or service provider would not be a legislative instrument
and will not be subject to parliamentary scrutiny or disallowance (subclause
15(14)). A determination under clause 16 that exempts a class of
services or service providers would be a legislative instrument and therefore
subject to parliamentary scrutiny and disallowance.
As discussed above, the Scrutiny of Bills Committee expressed
concern with the breadth of ACMA’s proposed powers under clauses 15 and 16.[121] The
Committee describes the approach in clauses 15 and 16 as akin to
‘Henry VIII clauses’ which enable delegated legislation to alter or override
the operation of primary legislation. The Committee considers that ‘such
clauses have the potential to impact on levels of parliamentary scrutiny and
subvert the appropriate relationship between Parliament and the Executive’.[122]
As also discussed above, the Victorian Inter-Church
Gambling Taskforce, the Victorian Local Governance Association and the Alliance
for Gambling Reform would prefer that exemptions from the online content
service provider rules should not be available.[123] If the exemptions are to
remain, these organisations consider that economic benefits to the service
provider should not be grounds for exemptions and ACMA should be required to
also consider the likelihood of an exemption causing harm and the number of
children who are likely to be exposed to the gambling promotion as a result of
the exemption.[124]
Compliance
and enforcement
Section 10 of the ACMA Act sets out ACMA’s
broadcasting, content and datacasting functions. These include monitoring
compliance with broadcasting codes of practice and program standards and
monitoring and investigating complaints relating to broadcasting services and
datacasting services.[125]
Item 1 of the Bill will amend section 10 to include an additional
function of monitoring compliance with the online content service provider
rules.
Subclause 25(1) of proposed Schedule 8 of
the BSA specifies that an online content service provider must not
contravene the online content service provider rules. This is a civil penalty
provision. Civil penalties are dealt with in Part 14B of the BSA. Within
that Part, section 205F allows the Federal Court to order a person who has
contravened a civil penalty provision to pay a pecuniary penalty to the
Commonwealth. Item 18 of the Bill amends section 205F to provide that the
maximum penalties that the Court may impose for a contravention of the rules is
300 penalty units ($63,000) for a body corporate and 60 penalty units ($12,600)
for a person who is not a body corporate.[126]
Under subclause 25(3) of proposed Schedule 8 of the BSA,
on each day that a contravention of the rules continues, the provider commits a
separate contravention. This means that the maximum pecuniary penalty can be
imposed for each day that a contravention continues.
Subclause 25(4) provides that a breach of the rules
can be dealt with by an infringement notice, rather than through court proceedings.
Infringement notices are dealt with under Part 14E of the BSA, which
allows an authorised infringement officer who has reason to believe that a
person has contravened a relevant provision to give the person an infringement
notice. An infringement notice must be given within 12 months of the alleged
contravention and can only be given if the person has previously received a
formal warning (section 205Y). Item 19 of the Bill amends section
205ZA such that the penalty that must be specified in an infringement notice
given to a body corporate for a breach of the rules must be equal to 60 penalty
units ($12,600). The penalty for an individual will be 10 penalty units ($2,100)
(paragraph 205ZA(b)).
Subclauses 26(1) and (2) of proposed
Schedule 8 of the BSA allow ACMA to give a remedial direction to an
online content service provider who has contravened, or is contravening, the
rules. The direction may require the provider to take specified action aimed at
ensuring that the provider does not contravene the rules in the future. A
provider who contravenes a direction is liable to a civil penalty, with a
maximum penalty of 2,000 penalty units ($420,000) for a body corporate and 400 penalty
units ($84,000) for a person who is not a body corporate (subclause 26(4)
of proposed Schedule 8 of the BSA and item 18 of the Bill).
Under subclause 26(6) of proposed Schedule 8 of the BSA,
on each day that a contravention of a direction continues, the provider commits
a separate contravention. This means that the maximum pecuniary penalty can be
imposed for each day that a contravention continues.
Complaints may be made to ACMA by any person who believes
that an online service provider has contravened the rules. ACMA may, but is not
required to, investigate a complaint (clause 24 of proposed Schedule
8 of the BSA).
Subclause 13(3) of proposed Schedule 8 of
the BSA provides that the rules may require online content service
providers to keep records that will allow the ACMA to ascertain whether they
have been complying with the rules.
Appendix A
Provision in industry Codes of Practice in relation to
gambling promotion
|
Name of the Code of Practice
|
Prohibition on gambling promotion |
|
Australian Association of National Advertisers (AANA)
Code
of Ethics
Code
for Marketing & Advertising Communications to Children
Wagering
Advertising & Marketing Communication Code
|
The AANA Code of Ethics requires all advertising and
marketing communications to comply with the various Codes especially with
respect to children, clause 3.1.
The Code for Marketing & Advertising Communications to
Children requires advertisers and marketers not to mislead or deceive
children (clause 2.2), and ensure safety and preservation of community
standards and social values with regard to children (clauses 2.5 – 2.6).
Clauses 2.1 – 2.3 of the AANA Wagering Advertising Code
set out specific rules for advertising wagering products or services directed
to children and young adults.
|
| Commercial
Radio Australia Code of Practice |
Section 9 deals with gambling and betting odds advertising
in live sports coverage and applies from 30 March 2018. Advertisements
relating to betting or gambling, and the promotion of betting odds, are not
permitted during the broadcast of a live sporting event between 5am and
8.30pm. Gambling advertising that is permitted at other times ‘must not be
directed at children, portray children as participating in betting or
gambling, or portray betting or gambling as a family activity’ (section
9.13). |
|
Free TV Australia
Commercial
Television Industry Code of Practice
|
Section
6.5 and Appendix 3 of the Code provide that a commercial relating to betting
or gambling must not be broadcast:
(a) in any Program
classified G or lower between:
i.
6.00
am and 8.30 am; and
ii.
4.00
pm and 7.00 pm; and
(b) during any
Program that is broadcast between 5.00 am and 8.30pm and principally directed
to Children.
Appendix
3 of the Code contains detailed provisions dealing with advertising during
live sporting events. Appendix 3 commenced on 30 March 2018 and reflects
the Government’s preferred approach as set out in the Regulatory Impact
Statement (RIS) that accompanies the Bill. It provides that advertising
relating to betting or gambling, and the promotion of betting odds is not
permitted between 5am and 8.30pm during the broadcast of a live sporting
event and for five minutes before or after that time.
At
times when gambling advertising and betting odds promotion is allowed during
a live sporting event, such advertisements must not (among other things):
- be
directed to children
- portray
children as participating in betting or gambling or
- portray
betting or gambling as a family activity (clause 3.13 of Appendix 3).
|
|
Australian Subscription Television and Radio
Association (ASTRA)
Subscription
broadcast television codes of practice
Subscription
narrowcast television codes of practice
Subscription
narrowcast radio codes of practice
|
Appendix A of each of the ASTRA Codes, which commenced on
30 March 2018, reflects the Government’s preferred approach as set out in the
RIS that accompanies the Bill.
It provides that advertising
relating to betting or gambling, and the promotion of betting odds is not
permitted between 5am and 8.30pm during the broadcast of a live sporting
event and for five minutes before or after that time.
At times when gambling advertising
and betting odds promotion is allowed during a live sporting event, such advertisements
must not (among other things):
-
be directed to children
-
portray children as participating in betting or gambling or
-
portray betting or gambling as a family activity (clause 9 of
Appendix 3).
|
| SBS
Codes of Practice |
Code 5 of the SBS Codes of Practice deals with advertising
and sponsorship announcements on SBS television and radio. It notes that SBS
Television follows Appendix 3 of the Commercial Television Industry Code of
Practice (as discussed above) and that SBS Radio follows section 9 of the
Commercial Radio Code of Practice (as discussed above). |
Appendix B
Relevant state and territory gambling and fair trading laws.
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. M
Fifield (Minister for Communications and the Arts), Major
reforms to support Australian broadcasters, media release, 6 May 2017;
Department of Communications and the Arts (DCA), ‘Broadcast
and Content Reform Package’, DCA website.
[2]. Explanatory
Memorandum, Communications Legislation Amendment (Online
Content Services and Other Measures) Bill 2017, p. 2.
[3]. Ibid. A commentator betting odds
promotion is the provision of betting odds (however described) by a commentator
(clause 2 of proposed Schedule 8 of the BSA, at item 22
of the Bill). A representative venue-based promotion is gambling promotional
content that consists of visual images (including animated images) or speech of
a representative of a gambling service provider that gives the impression that
the representative is at, or around, the venue of a sporting event (clause 2
of proposed Schedule 8 of the BSA).
[4]. Australian
Communications and Media Authority (ACMA), ‘New
gambling advertising rules during live sports’, ACMA website. Note that item 13
of the Bill would allow the Minister to direct the ACMA to determine a gambling
promotion program standard if the industry did not amend the broadcasting codes
to provide gambling advertising restrictions in relation to live sporting
events that the Government considered sufficient. The broadcasting codes have
been amended in this regard, with effect from 30 March 2018. See Appendix A
of this Digest for details.
[5]. M
Fifield (Minister for Communications and the Arts), Major
reforms to support Australian broadcasters, op. cit.
[6]. Ibid.
[7]. Ibid.,
See also: Department of Communications and the Arts (DCA), ‘Broadcast
and Content Reform Package’, DCA website.
[8]. For
more information see: R Jolly, Broadcasting
Legislation Amendment (Broadcasting Reform) Bill 2017, Bills digest, 8,
2017–18, 8 August 2017; Parliament of Australia, ‘Broadcasting
Legislation Amendment (Broadcasting Reform) Bill 2017 homepage’, Australian
Parliament website; M Biddington and R Jolly, Commercial
Broadcasting (Tax) Bill 2017, Bills digest, 4, 2017–18, 7 August 2017
and Parliament of Australia, ‘Commercial
Broadcasting (Tax) Bill 2017 homepage’, Australian Parliament website.
[9]. Australian
Government, Portfolio
additional estimates statements 2017–18; Communications and the Arts Portfolio,
pp. 48–49.
[10]. Appendix
A provides a list of industry codes of practice. The Australian Association
of National Advertisers (AANA)’s Code of Ethics came into effect in January
2012 and is part of its advertising and marketing self-regulation. The Code
applies to all advertising and marketing communications and requires the advertisers
to comply with the AANA Code for Marketing & Advertising Communications to
Children.
[11]. Section 5 of
the IGA defines a ‘prohibited interactive gambling service’ as a
gambling service where: (a) the service is provided in the course of carrying
out a business; and (b) the service is provided to customers using an internet
carriage service or any other listed carriage service, a broadcasting service,
any other content service or a datacasting service. However this provision
allows a range of exclusions such as a telephone betting service or a wholesale
gambling service.
[12]. Part
7A of the IGA.
[13]. These
amendments were contained in the Interactive
Gambling Amendment Act 2017.
[14]. For more
information see R Jolly, Interactive
Gambling Amendment Bill 2016, Bills digest, 50, 2016–17, Parliamentary
Library, Canberra, 2016.
[15]. See section
10(1)(m) of the Australian
Communications and Media Authority Act 2005 (ACMA Act) and Part
2, 2A and 7A of the IGA.
[16]. See Appendix
B which outlines some of the key legislation in each state and territory,
as well as the regulators.
[17]. Queensland
and the ACT have stand-alone interactive gambling legislation. In Victoria and
the NT provisions dealing with interactive gambling are included in general
gambling legislation. See Appendix B for details.
[18]. Senate
Standing Committee for Selection of Bills, Report,
15, 2017, The Senate, Canberra, 7 December 2017.
[19]. Senate Environment and Communications Legislation Committee, Communications Legislation Amendment (Online Content Services and Other
Measures) Bill 2017—Report, The Senate, Canberra,
12 February 2018.
[20]. Ibid.,
p. 29.
[21]. Senate Environment and Communications Legislation Committee, Submissions, Inquiry into the
Communications Legislation Amendment (Online Content Services and Other
Measures) Bill 2017, The Senate, Canberra, 2018.
[22]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 1, 2018, The Senate, Canberra, 7 February 2018, p. 8.
[23]. Ibid.,
p. 9.
[24]. Ibid.,
pp. 9–10.
[25]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 3, 2018, The Senate, Canberra, 21 March 2018, p. 80.
[26]. Ibid.,
p. 82.
[27]. Ibid.
[28]. Ibid.,
p. 83.
[29]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 1, 2018, op. cit., p. 10. See section 204 of the BSA and
item 15 of the Bill.
[30]. Ibid.,
p. 11.
[31]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 3, 2018, op. cit., p. 85.
[32]. Ibid.,
p. 86.
[33]. Ibid.
[34]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 1, 2018, op. cit., p. 13.
[35]. Ibid.
[36]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 3, 2018, op. cit., p. 88.
[37]. Ibid,
[38]. Ibid.,
p. 89.
[39]. T
Butler, ‘Second
reading speech: Communications Legislation Amendment (Online Content Services
and Other Measures) Bill 2017’, House of Representatives, Debates,
28 March 2018, p. 3182.
[40]. Senate Environment and Communications Legislation Committee, Communications Legislation Amendment (Online Content Services and Other
Measures) Bill 2017—Report, op. cit., p. 27.
[41]. Ibid.,
p. 28.
[42]. D
O’Neill, ‘Communications
Legislation Amendment (Online Content Services and Other Measures) Bill 2017 -
amendments to be moved by Senator O'Neil on behalf of the Opposition’,
Senate, sheet 8380, 19 March 2018; D O’Neill, ‘Second
reading speech: Communications Legislation Amendment (Online Content Services
and Other Measures) Bill 2017’, Senate, Debates, 26 March 2018,
p. 2151–4.
[43]. Australia,
Senate, ‘Communications
Legislation Amendment (Online Content Services and Other Measures) Bill 2017’,
Journals, 93, 2016–18, 27 March 2018, pp. 2936–42.
[44]. Senate Environment and Communications Legislation Committee, Communications Legislation Amendment (Online Content Services and Other
Measures) Bill 2017—Report, op. cit., p. 29.
[45]. S
Hanson-Young, ‘Communications Legislation Amendment (Online Content Services and
Other Measures) Bill 2017 - amendments to be moved by the Australian Greens’, Senate, sheet 8367, 15 March 2018; S
Hanson-Young, ‘Second reading speech: Communications Legislation Amendment (Online
Content Services and Other Measures) Bill 2017’,
Senate, Debates, 26 March 2018, p. 2159.
[46]. Australia,
Senate, ‘Communications
Legislation Amendment (Online Content Services and Other Measures) Bill 2017’,
Journals, 93, 2016–18, 27 March 2018, pp. 2936–42.
[47]. S
Griff, ‘Second
reading speech: Communications Legislation Amendment (Online Content Services
and Other Measures) Bill 2017’, Senate, Debates, 26 March 2018, p.
2156; S Griff, ‘Communications
Legislation Amendment (Online Content Services and Other Measures) Bill 2017 -
amendments to be moved by Senator Griff on behalf of the Nick Xenophon Team’,
Senate, sheet 8395, 19 March 2018.
[48]. Australia,
Senate, ‘Communications
Legislation Amendment (Online Content Services and Other Measures) Bill 2017’,
Journals, 93, 2016–18, 27 March 2018, pp. 2936–42.
[49]. Victorian
Inter-Church Gambling Taskforce, Victorian Local Governance Association and
Alliance for Gambling Reform, Submission
to Senate Environment and Communications Legislation Committee, Inquiry into
the Communications Legislation Amendment (Online
Content Services and Other Measures) Bill 2017, 12 January 2018, p. 1.
[50]. Ibid.,
pp. 2 and 4.
[51]. Ibid.,
p. 5.
[52]. Ibid.
[53]. Ibid.
[54]. Victorian
Responsible Gambling Foundation (VRGF), ‘Who we
are’, VRGF website.
[55]. Victorian
Responsible Gambling Foundation, Submission
to Senate Environment and Communications Legislation Committee, Inquiry into
the Communications Legislation Amendment (Online
Content Services and Other Measures) Bill 2017, 12 January 2018, p.
1.
[56]. Ibid.,
p. 4.
[57]. Ibid.
[58]. Australian
Council on Children and the Media (ACCM), Submission
to Senate Environment and Communications Legislation Committee, Inquiry into
the Communications Legislation Amendment (Online
Content Services and Other Measures) Bill 2017, January 2018, p. 1.
[59]. Ibid., p.
2. See item 13 of the Bill.
[60]. Ibid., pp.
7–8.
[61]. UNICEF
Australia, Submission
to Senate Environment and Communications Legislation Committee, Inquiry into
the Communications Legislation Amendment (Online
Content Services and Other Measures) Bill 2017, 15 January 2018, p.
1.
[62]. Ibid., p.
4.
[63]. The RIS is
contained in the Explanatory Memorandum to the Bill. See Explanatory
Memorandum, Communications Legislation Amendment (Online Content Services
and Other Measures) Bill 2017, p. 15.
[64]. Flinders
Centre for Gambling Research, Submission
to Senate Environment and Communications Legislation Committee, Inquiry into
the Communications Legislation Amendment (Online
Content Services and Other Measures) Bill 2017, 12 January 2018, p.
1.
[65]. Ibid.,
p. 2.
[66]. Ibid.,
pp. 2–3.
[67]. Tabcorp, Submission
to Senate Environment and Communications Legislation Committee, Inquiry into
the Communications Legislation Amendment (Online
Content Services and Other Measures) Bill 2017, n.d.
[68]. Responsible
Wagering Australia, Submission
to Senate Environment and Communications Legislation Committee, Inquiry into
the Communications Legislation Amendment (Online
Content Services and Other Measures) Bill 2017, n.d, p. 1.
[69]. C Uhlmann, ‘Sporting
codes fight Government's proposed restrictions on gambling advertising on TV’,
ABC online, 19 April 2017.
[70]. Ibid.
[71]. Ibid.
[72]. Coalition
of Major Professional and Participation Sports Inc., Submission
to Senate Environment and Communications Legislation Committee, Inquiry into
the Communications Legislation Amendment (Online
Content Services and Other Measures) Bill 2017, 12 January 2018, p. 3.
[73]. Australian
Subscription Television and Radio Association (ASTRA), Submission
to Senate Environment and Communications Legislation Committee, Inquiry into
the Communications Legislation Amendment (Online
Content Services and Other Measures) Bill 2017, 12 January 2018, pp.
3–4.
[74]. The
revised Code is now in force. See Appendix A for details.
[75]. ASTRA, Submission
to Senate Environment and Communications Legislation Committee, op. cit., p. 4.
[76]. Ibid., p. 3.
[77]. Ibid., p.
11. An example given in the submission concerns the definition of ‘live’. While
the ASTRA Code refers only to ‘live-to-air broadcast’, the definition in the
Bill includes delayed transmission commencing prior to the conclusion of the
relevant match.
[78]. Ibid.,
3 and 7–10.
[79]. Ibid.,
pp. 20–21. A detailed description of ‘fantasy sports’ is provided in B
O’Farrell, Review
of Illegal Offshore Wagering – Report to the Ministers for Social Services and
the Minister for Communications and the Arts by lead reviewer, the Hon. Barry
O’Farrell, 18 December 2015, p. 5. Further, the Department of
Broadband, Communications and the Digital Economy (DBCDE) 2012 review of the Interactive
Gambling Act recommended, in its Recommendation 30, that the treatment of
fantasy sports under the Interactive Gambling Act be the subject of
further consultation with the Coalition of Major Professional and Participation
Sports, state and territory governments and the promoters of fantasy sports
competitions. For further information, see: DBCDE, Interim
Report – Review of the Interactive Gambling Act 2001, 2012,
pp. 133–134.
[80]. Communications
Alliance Ltd, ‘About us’,
Communications Alliance Ltd website.
[81]. Communications
Alliance Ltd, Submission
to Senate Environment and Communications Legislation Committee, Inquiry into
the Communications Legislation Amendment (Online
Content Services and Other Measures) Bill 2017, 12 January 2018, p.
1.
[82]. Commercial
Radio Australia, Submission
to Senate Environment and Communications Legislation Committee, Inquiry into
the Communications Legislation Amendment (Online
Content Services and Other Measures) Bill 2017, 5 January 2018, p.
1.
[83]. Ibid, p. 3.
[84]. SBS, Submission
to Senate Environment and Communications Legislation Committee, Inquiry into
the Communications Legislation Amendment (Online
Content Services and Other Measures) Bill 2017, January 2018, p. 1.
[85]. Ibid, p. 6.
[86]. D
O’Neill, ‘Communications
Legislation Amendment (Online Content Services and Other Measures) Bill 2017 -
amendments to be moved by Senator O'Neil on behalf of the Opposition’,
Senate, sheet 8380, 19 March 2018; Australia, Senate, ‘Communications
Legislation Amendment (Online Content Services and Other Measures) Bill 2017’,
Journals, 93, 2016–18, 27 March 2018, pp. 2936–42.
[87]. Free
TV, Submission
to Senate Environment and Communications Legislation Committee, Inquiry into
the Communications Legislation Amendment (Online
Content Services and Other Measures) Bill 2017, 12 January 2018.
[88]. DiGi, Submission
to Senate Environment and Communications Legislation Committee, Inquiry into
the Communications Legislation Amendment (Online
Content Services and Other Measures) Bill 2017, n.d, pp. 1–2.
[89]. Explanatory
Memorandum, Communications Legislation Amendment (Online
Content Services and Other Measures) Bill 2017, p. 4.
[90]. The
Statement of Compatibility with Human Rights can be found at pages 20–22 of the
Explanatory
Memorandum to the Bill.
[91]. Parliamentary
Joint Committee on Human Rights, Report,
1, 2018, The Senate, Canberra, 6 February 2018, p. 78.
[92]. Explanatory
Memorandum, Communications Legislation Amendment (Online
Content Services and Other Measures) Bill 2017, p. 2.
[93]. Australian
Communications and Media Authority (ACMA), ‘Broadcasting
content regulation’, ACMA website.
[94]. ACMA,
‘New
gambling advertising rules during live sports’, ACMA website. See also Appendix
A of this Digest.
[95]. ACMA,
‘New
gambling advertising rules during live sports’, op. cit; ACMA, ‘Odds
and betting ads in live sport broadcasts — the rules’, ACMA website.
[96]. Clause 11
of proposed Schedule 8 to the BSA, at item 22 of the Bill.
[97]. Clauses
15 and 16 of proposed Schedule 8 to the BSA, at item
22 of the Bill.
[98]. Clause 25
of proposed Schedule 8 to the BSA, at item 22 of the Bill.
[99]. Clause 26
of proposed Schedule 8 to the BSA, at item 22 of the Bill.
[100]. Item 15
of the Bill.
[101]. C Uhlmann, ‘Sporting
codes fight Government's proposed restrictions on gambling advertising on TV’,
op. cit. See also: Coalition of Major Professional and Participation Sports
Inc., Submission
to Senate Environment and Communications Legislation Committee, op. cit.
[102]. C Uhlmann, ‘Sporting
codes fight Government's proposed restrictions on gambling advertising on TV’,
op. cit.
[103]. College
of Psychiatrists of Ireland, Submission
to the Working Group on Regulating Sponsorship by Alcohol Companies of Major
Sporting Events, Department of the Taoiseach, June 2014, p. 14. See
also: S Woodward, Effects
on sport of bans on tobacco advertising and sponsorship in Australia, n.d.
[104]. Tobacco
in Australia, ‘Chapter
17.5: Impact of tobacco control strategies on the Australian economy’, Tobacco
in Australia: Fact & Issues, Tobacco in Australia website.
[105]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 1, 2018, op. cit., pp. 10–11.
[106]. Ibid.,
p. 11.
[107]. Senate Environment and Communications Legislation Committee, Communications Legislation Amendment (Online Content Services and Other
Measures) Bill 2017—Report, op. cit., pp. 11–12.
[108]. Ibid.,
p. 11. ASTRA, Submission
to Senate Environment and Communications Legislation Committee, op. cit., p.
12.
[109]. Senate Environment and Communications Legislation Committee, Communications Legislation Amendment (Online Content Services and Other
Measures) Bill 2017—Report, op. cit., p. 11.
[110]. Ibid.,
p. 11; DiGi, Submission
to Senate Environment and Communications Legislation Committee, Inquiry into
the Communications Legislation Amendment (Online
Content Services and Other Measures) Bill 2017, op. cit., p. 4.
[111]. DiGi,
Submission
to Senate Environment and Communications Legislation Committee, Inquiry into
the Communications Legislation Amendment (Online
Content Services and Other Measures) Bill 2017, op. cit., p. 4.
[112]. Senate Environment and Communications Legislation Committee, Communications Legislation Amendment (Online Content Services and Other
Measures) Bill 2017—Report, op. cit., p. 12.
[113]. Ibid.
[114]. Ibid.,
Free TV, Submission
to Senate Environment and Communications Legislation Committee, Inquiry into
the Communications Legislation Amendment (Online
Content Services and Other Measures) Bill 2017, op. cit., p. 3.
[115]. Senate Environment and Communications Legislation Committee, Communications Legislation Amendment (Online Content Services and Other
Measures) Bill 2017—Report, op. cit., p. 12.
[116]. Explanatory
Memorandum, Communications Legislation Amendment (Online
Content Services and Other Measures) Bill 2017, p. 2.
[117]. Australian
Communications and Media Authority (ACMA), ‘New
gambling advertising rules during live sports’, ACMA website. See Appendix
A of this Digest for details. Note that item 13 of the Bill
would allow the Minister to direct the ACMA to determine a gambling promotion
program standard if the industry did not amend the broadcasting codes to
provide gambling advertising restrictions in relation to live sporting events
that the Government considered sufficient.
[118]. Senate Environment and Communications Legislation Committee, Communications Legislation Amendment (Online Content Services and Other
Measures) Bill 2017—Report, op. cit., p. 13.
[119]. Ibid; ACCM, Submission
to Senate Environment and Communications Legislation Committee, Inquiry into
the Communications Legislation Amendment (Online
Content Services and Other Measures) Bill 2017, op. cit., pp. 6–7.
[120]. Senate Environment and Communications Legislation Committee, Communications Legislation Amendment (Online Content Services and Other
Measures) Bill 2017—Report, op. cit., p. 13.
[121]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 1, 2018, op. cit., p. 13.
[122]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 1, 2018, op. cit., p. 13.
[123]. Ibid.,
p. 5.
[124]. Ibid.
[125]. Section 10 of
the ACMA Act.
[126]. Section
4AA of the Crimes
Act 1914 (Cth) provides that a penalty unit is equal to $210.
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