2.2
According to the explanatory statement, '[t]he ATM measure is the first
that applies under the Act from 1 February 2014, and requires ATM providers and
venues to introduce a $250 limit to cash withdrawals from ATMs at gaming
venues, in any 24 hour period'.[1]
2.5
The committee sought further information from the Minister for Social
Services as to:
As you may be aware, as a result of recent amendments to the
Act to repeal the ATM measure (among other matters), the Direction no longer
has any application. The repeal took effect on 31 March 2014, the date of Royal
Assent, and I refer you to Schedule 1 of the Social Services and Other
Legislation Amendment Act 2014. However, I understand a response to the
matters raised is still warranted for the period in which the Direction
operated. In light of these developments, a response by 24 April, rather than
14 March (as originally requested), has been agreed.
I understand from the Committee's Third Report of the 44th
Parliament (the Report) that its key concern with the Direction relates to
its understanding of this instrument's purpose. The Committee characterised
this purpose as being to 'delay implementation of the enforcement provisions
with respect to the ATM measure under the Act' . As the ATM measure promoted
human rights, the Committee requested further information on:
-
how the Direction relates to
amendments in the Social Services and Other Legislation Amendment Bill 2013
(Bill), which was then before Parliament; and
-
what impact the ' cooperative
engagement' approach implemented by the Direction will have on human rights.
The
Government's response is set out below.
Repeal of the ATM measure
As you may be aware, the Bill for the repeal of the ATM
measure (and other matters) was introduced in November 2013 prior to the
commencement of the ATM measure from 1 February 2014. I understand the timing
of the proposed repeal may have provided the basis for confusion among some
regulated entities and members of the public regarding the status of the ATM
measure, and therefore the purpose of the Direction. In particular, some
understood this purpose as related to, or aligned with, the proposed repeal of
the ATM measure, and as intended to apply while considered by Parliament.
The purpose of the Direction was not to further or support
the objectives of the proposed repeal of the ATM measure or delay
implementation of enforcement provisions with respect to the ATM measure under
the Act. The Direction was made in accordance with the powers under the Act to
establish an approach to regulation that aimed to achieve compliance, with an
emphasis on cooperation with and educating regulated entities. I note that the
Regulation and Ordinances Committee scrutinised the Direction on 5 March 2014,
with regard to matters including the consistency of the instrument with its
enabling legislation, without issue.
The purpose of the Direction and the regulatory approach it
provided was consistent with the objectives of the Act, being (as the Committee
notes), to address the harms caused by gaming machines to individuals, their
families and communities. As explored further below, given the confusion over
the application of the measure, the Direction's priority for education and cooperative
engagement was considered appropriate, as a regulatory approach. As a practical
matter, I understand the Direction also proved useful in confirming compliance
was required of regulated entities.
Impact of 'cooperative engagement' approach implemented by
the Direction on human rights
The educative approach to compliance provided for in the
Direction, primarily in terms of the regulatory priorities specified (section
5), and the procedures for responding to non-compliance (section 8), did not
prevent the Regulator from taking punitive action to enforce compliance.
Rather, it emphasised the use of non-punitive strategies to facilitate
compliance as an initial response. It recognised that in particular regulatory
contexts (such as in the gambling context), taking premature action to penalise
regulated entities for non-compliance can be counterproductive.
In the context of the former Regulator's enabling
legislation, the educative approach to compliance was consistent with the
obligations and the broad discretion conferred on the Regulator to promote,
monitor and enforce compliance. Further, a cooperative enforcement posture is
recognised as one of the most effective and sustainable ways of administering
regulatory schemes. Applied appropriately, these types of regulatory approaches
are well accepted as consistent with contemporary best practice.
For further information, I refer you to the Australian
National Audit Office's 2007 Better Practice Guide to 'Administering
Regulation' which, consistent with the educative approach, advocates for a
graduated and escalating approach to compliance. In addition, I refer you to
the recommendations of the Productivity Commission's report on 'Regulator
Engagement with Small Business' in September 2013 which demonstrates the
value of engaging cooperatively with regulated entities. You may wish to note
that this approach is particularly relevant for engaging small businesses which
comprise a major proportion of all gaming venues subject to the previous Act.
In conclusion, as an instrument that facilitated the
implementation of the ATM measure, it follows that the Direction was an
instrument that supported human rights. It ensured that best practice was
adopted in line with the objectives of the Government's broader deregulation agenda.[2]