The Gambling Law Review: Australia

Overview

iDefinitions

In general terms, for an activity to be classified as gambling in Australia, it must involve the staking of money or other valuable consideration of real-world value on the outcome of an event determined in whole, or in part, by chance and with the objective of winning a prize.

Where an activity does not satisfy these criteria, it is not generally considered to be gambling under Australian law.

'Trade promotions', being free-to-enter competitions for the promotion of trade,2 are also regulated under gambling legislation in each Australian state and territory. These competitions are subject to specific restrictions and, in certain jurisdictions, are only able to be conducted where a permit has been issued by the relevant regulator.

Fantasy sports operators have existed in the Australian market for some years. Initially, they were regulated as a form of trade promotion, whereas now they are treated by regulators as a form of bookmaking.

No specific regulation of 'pool betting' exists in Australia. Exclusive licences are granted to totalisator operators in all Australian jurisdictions. These operators are licensed to accept bets relating to a contingency (generally, the outcome of a racing or sporting event), which are then contributed to a pool that is paid out by reference to successful bets (after the operator deducts a percentage of the pool as commission, as well as various fees and taxes).

Spread betting and betting on financial products are regulated by the Corporations Act 2001 (Cth). To be conducted legally, operators must obtain an Australian Financial Services Licence. These products are regulated under a different regulatory regime to gambling products; however, in certain circumstances, a sports betting licence may also be obtained.

iiGambling policy

In Australia, there is a general prohibition in all jurisdictions on the conduct and promotion of gambling. Legislative exemptions exist for gambling activities that are conducted under a licence. These activities include:

  1. lotteries (both in venue and online);
  2. wagering and sports betting (both in venues and online);
  3. electronic gaming machines, slot machines, or 'pokies' (just in venues); and
  4. land-based casinos where casino games, including poker, baccarat and blackjack (among others), can be played.

The paternalistic approach to the regulation of gambling services by Australian federal and state governments is a response to the concerns that arise from the adverse social consequences associated with gambling.

However, gambling has long been a part of Australia's culture and identity and, together with racing and sport, is well established in the national consciousness. State and territory-based regulation of gambling in the early 20th century marked the beginning of the legislative regime in place today. With the introduction of online wagering in the late 20th century, the industry continues to flourish, despite the continuing conflict between the economic returns provided by the gambling sector to state and territory governments, and sporting and racing bodies, and the pressure for governments to take action to minimise problem-gambling behaviour.

iiiState control and private enterprise

Historically, lottery and totalisator operators were government-owned entities. Almost all states and territories (Western Australia being the exception in respect of its totalisator and lottery) have corporatised and privatised these gambling operators. All leading gambling businesses in Australia (many of whom are listed) conduct business under a licence granted by a state or territory government (or regulator).

The principal licensed gambling operators are:

  1. Tabcorp Holdings Limited (Tabcorp), which, since combining with Tatts Group Limited (Tatts) (see Section VIII) has the exclusive right to conduct both lotteries and totalisators (and off-course betting) through retail outlets in Queensland, Tasmania, New South Wales, Victoria, South Australia, the Australian Capital Territory and the Northern Territory;
  2. The Star Entertainment Group Limited (The Star), which operates casinos in Sydney and in South East Queensland;
  3. Crown Resorts Limited (Crown Resorts), which operates casinos in Melbourne and Perth (and Sydney; however the gaming floor at Crown Sydney remains closed as at March 2021) and also conducts a betting exchange, Betfair;
  4. Sportsbet Pty Limited (Sportsbet), a sports bookmaker that is owned by Flutter Entertainment;
  5. PointsBet Australia Pty Ltd (Pointsbet), a sports bookmaker; and
  6. Aristocrat Leisure Limited, Ainsworth Game Technology, Scientific Games Australia, Konami Australia, International Game Technology (IGT) and Aruze Australia (all suppliers of gaming machines).

In Western Australia, the totalisator and lottery are conducted through state-owned corporations, respectively operated by Racing and Wagering Western Australia and LotteryWest. However, the Western Australian government announced in late 2018 that it is conducting a tender process in respect of the exclusive licence to operate the state's totalisator. In 2020, negotiations regarding the tender process were postponed until at least 2021.

Separate exclusive licences are also issued in each state and territory in respect of the conduct of keno games in land-based retail venues.

The right to operate a casino has been the subject of an exclusive licence in the relevant jurisdiction, save for Queensland, New South Wales and the Northern Territory. The recent issue of a new casino licence in New South Wales is discussed further in Section II.

Wagering services are not only provided by totalisator operators (who also provide fixed-odds betting services) but also by on-course bookmakers (some of whom also operate online) and corporate bookmakers (mostly licensed in the Northern Territory).

ivTerritorial issues

As mentioned above in Section I.iii, licences to conduct gambling are issued by the relevant state or territory government (or regulator) including those listed in Section II. Traditionally, gambling was conducted solely in venues. However, as a result of new technologies and the challenges posed by gambling monopolies in most Australian states and territories, a number of gambling businesses (particularly in the wagering sector) are licensed to conduct gambling remotely. This includes corporate bookmakers, many of whom are subsidiaries of leading European online betting companies.

However, it is generally understood under principles of Australian constitutional law that gambling services provided under a licence issued in any state or territory of Australia are able to be provided to residents of other Australian states and territories. This principle was confirmed by the decision of the High Court of Australia in Betfair Pty Ltd and another v. Western Australia (2008) 244 ALR 32.

Each licensing jurisdiction imposes different licence conditions on its licensed operators, by reference to the relevant legislation. Most online corporate bookmakers, for example, are licensed in the Northern Territory by the Northern Territory Racing Commission (NTRC).

vOffshore gambling

In 2001, the federal government enacted the Interactive Gambling Act 2001 (Cth) (IGA) which prohibits the provision of 'interactive' (or online) gambling services with an 'Australian customer link'. The IGA is enforced by the Australian Communications and Media Authority (ACMA) and the Australian Federal Police. In September 2017, the IGA was amended by the Interactive Gambling Amendment Act 2017 (Cth) (IGA Amendment Act) in response to claims that the existing legislation was ineffective as a means of deterring unlicensed offshore gambling operators from providing services to Australian residents.

The amendments, among other things, increased penalties, expanded existing aiding and abetting offences, clarified the prohibition on the use of VoIP technology by licensed wagering operators to facilitate in-play betting services, banned the provision of lines of credit by wagering operators and granted the ACMA greater investigative and enforcement powers, including the power to issue formal warnings and infringement notices.

Broadly speaking, the IGA prohibits the provision of 'prohibited interactive gambling services' (the Section 15 Offence) and 'regulated interactive gambling services' without an Australian licence (the Section 15AA Offence), to persons present in Australia (together, the Operational Prohibitions). Regulated interactive gambling services include wagering services (with the exception of online in-play sports betting services and betting on the outcome of lotteries, which are prohibited) and lottery services (with the exception of online instant or scratch lotteries, which are also prohibited). In addition, the IGA prohibits the advertising in Australia of 'prohibited interactive gambling services' and, unless the relevant party is licensed in Australia, 'regulated interactive gambling services' (the Advertising Prohibition).

The IGA targets the supply of online gambling to residents of Australia by offshore operators, but does not prevent Australian residents from accessing those offshore services, or the provision of services by Australian operators to customers in other countries.

A defence is available for an alleged breach of the IGA where the operator did not know, or could not reasonably have known, that their service had an 'Australian customer link,' that is, that any or all of the customers of the service were physically present in Australia.

Legal and regulatory framework

iLegislation and jurisprudence

Australia is a federation. In practice, this means that legislative power is divided between the federal government and the eight constituent states and territories. Traditionally, the power to regulate gambling activities in Australia was reserved by the states and territories.

This changed in 2001 with the enactment of the IGA.

Whereas the IGA regulates interactive (or online) gambling services, state and territory legislation continues to regulate land-based gambling activities3 and sets out different regulatory frameworks for different types of gambling (both remote and land-based gambling), including casinos, sports betting, poker machines and lotteries.

The IGA prevails over state and territory legislation to the extent of any inconsistency. However, even where certain conduct does not contravene the IGA, it may nonetheless be in breach of state and territory gambling laws.

In addition to regulating the manner in which gambling is conducted, legislation in each Australian state and territory also establishes separate regulatory bodies.

Even though the federal government's proposed poker machine regulation in November 2012 was unsuccessful, there remains the possibility that the federal government may intervene in the future to regulate further land-based gambling, particularly poker machines, or direct state and territory governments to reform particular regulatory frameworks for other types of gambling.

This is clear from the federal government's critical role in developing and passing the National Consumer Protection Framework (the NCPF), a framework of 10 mandatory minimum standard measures, which is intended to minimise gambling related harm for Australian consumers (see Section VII).

iiThe regulator

The key responsibilities assigned to the state and territory regulators include granting licences, monitoring compliance of gambling operators and enforcement of legislation where necessary. The key regulators in each jurisdiction are:

  1. New South Wales: Liquor and Gaming NSW;
  2. Victoria: Victorian Commission for Gambling and Liquor Regulation and the Department of Justice and Community Safety;
  3. Australian Capital Territory: ACT Gambling and Racing Commission;
  4. Northern Territory: the NTRC;
  5. Western Australia: Department of Local Government, Sport and Cultural Industries;
  6. South Australia: the Consumer and Business Services Department;
  7. Tasmania: Liquor and Gaming Commission;
  8. Queensland: Office of Liquor and Gaming Regulation; and
  9. Australia-wide: the ACMA.

In certain states and territories, a different regulator is responsible for the regulation of casinos. For example, the Independent Liquor and Gaming Authority (ILGA) is responsible for determining the regulatory arrangements that apply to the operation of casinos in New South Wales. It has recently been recommended, following the investigation by the ILGA into Crown Resorts (see Section VII), that an independent and specialist casino regulator (the Independent Casino Commission) be established to assume responsibility for the regulation of casinos in NSW. It is possible that similar recommendations may be made in Victoria and Western Australia (as part of the recommendations made by the Royal Commissions convened to investigate the operations of Crown in each of those jurisdictions). Additionally, separate government departments are responsible for regulating lower-risk gambling activities such as trade promotions, and certain racing and sporting bodies have been given the right to regulate certain activities of individual and corporate licensed bookmakers.

iiiRemote and land-based gambling

The Australian legislative framework for the gambling sector distinguishes between remote and land-based gambling; both are regulated at the federal and state and territory levels.

As indicated in Section I.i, interactive (or online) gambling services are regulated at the federal, and state and territory levels, while land-based gambling is regulated mostly at the state and territory level.

At the state and territory level, the distinction is due in part to the different regulatory frameworks that exist for the different types of gambling services, such as casinos and gaming machines. In addition, the distinction can be attributed to the rapid evolution of the market and the often outdated legislation at the state and territory level. For example, in New South Wales, the Unlawful Gambling Act 1998 (NSW) (NSW UGA) does not contemplate online gambling. However, the preferred position of Liquor and Gaming NSW, the New South Wales regulator, is that the NSW UGA applies equally to both online and offline forms of gambling.

ivLand-based gambling

Land-based gaming is regulated largely by state and territory legislation, which is principally directed at gambling products or services that are venue-based. These include operators of wagering and lottery terminals, and poker machines. However, certain federal laws apply to land-based gambling, such as the laws relating to anti-money laundering and counter-terrorism financing (see Section IV).

Generally, an exclusive licence has been granted in each state or territory to conduct off-course betting in retail venues. Similarly, an exclusive licence has been granted to provide lottery products (which are made available for purchase by consumers from retailers, principally in newsagents).

Further, licensed venue operators are permitted to conduct land-based machine gaming (such as slot machines, known in Australia as poker machines). These venues include casinos, pubs and clubs. The sole exception to this principle is in Western Australia, where poker machines are only permitted in casinos. Certain restrictions are imposed on the operation of gaming machines by licensed venue operators, such as caps on the total number of poker machines in any particular venue, locality or in the jurisdiction as a whole. The regulatory regime in respect of poker machines differs substantially from jurisdiction to jurisdiction with Victoria, for example, having a mandatory pre-commitment system in place (which players can opt out of).

Until recently, there was a limited number of casino licences granted in each state and territory. However, in recent years, this exclusivity has been relaxed. Previously, in New South Wales, the exclusive casino licence was held by Echo Entertainment Group Ltd (now The Star). In 2014, the New South Wales state government granted a licence to Crown Resorts for the construction and operation of Crown Casino at Barangaroo in Sydney.

vRemote gambling

The IGA prohibits the supply of online gambling services to persons present in Australia, unless they are wagering or lottery services and the service provider is licensed by a regulatory authority in an Australian jurisdiction. However, the ability of wagering operators to provide remotely in-play sports betting is restricted to bets placed over the telephone via a voice call or via a 'place-based betting service', that is, using 'electronic equipment' at the venue of a licensed operator.

Generally speaking, licensed operators may offer remote or online gambling services and no distinction exists between the online platforms or devices on which a gambling product may be offered to customers.

Licences granted to Australian operators to provide gambling services online often impose restrictions on the location and manner in which the licensed operator may conduct its gambling business. For example, gambling operators licensed by the NTRC are required to locate various aspects of their operations in the Northern Territory. In addition, the conditions of the licence have the effect that bets are deemed to be placed, received and accepted in the Northern Territory for the purposes of the licence, irrespective of where the customer placing the bet is located.

Various restrictions and requirements exist at the state or territory levels that apply to licensed online wagering operators (even where based in another state or territory). These restrictions set out mandatory requirements relating to advertising, warning messages and pre-commitment and, in many jurisdictions, there exists the requirement to pay a product fee in respect of races and some sporting events that take place in that state or territory and a point of consumption tax (PoC Tax) in respect of revenue generated by customers of a particular state or territory (see Section VII).

viAncillary matters

Depending on the gambling service, ancillary licences may be required in addition to the principal licence granted to the operator to conduct the gambling business.

For example, in addition to licences granted to operators that conduct gambling activities in a casino or other land-based venue, separate licences are required to be held by manufacturers and suppliers of poker machines, as well as testing agents.

In most cases, key employees or close associates of licensed operators are required to hold a separate licence, or at least be approved by the regulator prior to commencing their role.

viiFinancial payment mechanisms

There are a limited number of financial mechanisms that are prohibited in Australia for use as payment in connection with gambling services. For example, the IGA prohibits licensed online wagering operators from providing to Australian customers, or facilitating the provision through third parties, credit for use in connection with the operator's services. Throughout 2019, various Australian financial institutions introduced a limit on the use of credit cards for gambling-related purposes. Further, the industry body for Australia's leading banks (the Australian Banking Association (ABA)) released a report in December 2020 concerning the use of credit cards for gambling (the ABA Report) (see Section VII).

Additionally, Australian gambling laws do not, at either the federal or state and territory level, contemplate the use of cryptocurrency as a mechanism for payment in connection with online gambling services. However, the NTRC has imposed a restriction on all of its licensed online wagering operators accepting cryptocurrency as a form of payment for bets placed with the operator.

The licensing process

iApplication and renewal

The process involved in applying for a licence to conduct a gambling business in Australia depends on the type of licence and the jurisdiction in which it is sought. For example, in respect of remote wagering, the Northern Territory is the leading licensing jurisdiction in Australia and licences are granted by the NTRC. While other states and territories have their own licensing regimes, these regimes have not been 'tried and tested' in the same way as the Northern Territory regime.

There are a number of licensing options, depending on the nature of the gambling service to be provided. Licences may be granted to conduct bookmaking and online lotteries. For simplicity, we have limited our response to the process relating to the grant of sports bookmaking licences.

In order to be eligible to obtain a licence, applicants must be registered in Australia, generally, as a corporate entity under the Corporations Act 2001 (Cth). The company and key personnel must also meet suitability and probity requirements prescribed by the relevant licensing authority.

In addition to satisfying the eligibility requirements, an applicant will generally need to provide the following information:

  1. the applicant's certificate of registration and a copy of its constitution;
  2. police check documentation for each key employee;
  3. a business plan;
  4. prescribed financial and personal information, both for the applicant and key employees;
  5. the current prescribed licence fee; and
  6. a deed of release and authorisation to enable the regulator to conduct all necessary inquiries.

The licensing process will typically last for up to nine months.

The duration of the licence will depend on the nature of the gambling service being provided and the agreement reached between the licensing authority and the operator, as set out in the licence conditions.

In light of the investment required in respect of land-based gambling operators, exclusive totalisator and casino licences typically remain in effect for a term exceeding 10 years.

iiSanctions for non-compliance

Restrictions on the manner in which a gambling business may be conducted are usually contained in the terms and conditions of a licence and the underlying legislation. Failure to comply may lead to sanctions for breach of the licence, contravention of prohibitions set out in the relevant legislation, or both.

This most frequently arises as a result of periodic reviews conducted in connection with the operation of a casino. In many cases, the casino may be found not to have complied fully with the terms of its licence, resulting in the imposition of a fine and other penalties.

As it is beyond the scope of this chapter to outline the full framework for liability, our analysis is set out in general terms. Offences and sanctions in respect of non-compliance with licence conditions and the relevant laws vary between the states and territories.

At the federal level, the operational prohibitions under the IGA carry significant penalties of up to 5,000 penalty units for a criminal offence (equivalent to up to A$5.55 million for a corporation) and 7,500 penalty units under the civil penalty provision introduced by the IGA Amendment Act (equivalent to up to A$8.325 million for a corporation).

Individuals

Generally, liability is placed on the operator of a prohibited gambling service rather than the customer for the participation in such services. However, liability may be placed on individual users of gambling services in limited circumstances. For example, gambling legislation in New South Wales and Western Australia prohibits the placement of a bet on an Australian race with an unlicensed wagering operator. Notwithstanding these prohibitions, we consider it unlikely from a policy perspective that authorities will prosecute individuals under these provisions.

Overseas operators

An overseas operator may be found liable where an offence provision is stated expressly to have extraterritorial effect. The offence provisions in the IGA are expressed to apply extraterritorially. However, the practical difficulties that exist in enforcing Australian legislation against overseas operators under the IGA were addressed by the IGA Amendment Act. New powers were conferred on the ACMA, including the ability to notify international regulators of licensees acting in contravention of the IGA.

Directors and officers

There is no general principle extending liability to directors or officers of a gambling operator for the acts of a company. However, in cases where there is a prohibition on certain activities, certain legislation extends these prohibitions to the directors and officers of the company in line with the aiding and abetting provisions of Australia's criminal laws. For example, Section 53 of the NSW UGA stipulates that a director of a corporation that is in breach of the NSW UGA will commit an offence where the director 'aids, abets, counsels or procures the commission of the corporate offence'.

At the federal level, directors and officers of operators acting in contravention of the IGA can also be nominated by the ACMA to a 'Movement Alert List' maintained by the Department of Immigration and Border Protection, with the aim of restricting their travel to or from Australia.

Agents

As a general principle, various parties may be found liable under the aiding and abetting provisions of Australia's criminal laws. The broad language of the advertising prohibition also extends liability to marketing affiliates.

The IGA Amendment Act also extended liability under the IGA to parties such as business-to-business (B2B) service providers, who may be considered to have 'aided and abetted' the commission of either civil or criminal offences under the IGA (see Section I). This will also extend to include directors and officers.

Payment processors and internet service providers

Although the statutory prohibitions do not extend liability expressly to entities involved in money transfers where money is used for gambling purposes, payment processors need to be aware that there is risk in certain circumstances that liability may arise under the aiding and abetting provisions of Australia's criminal laws, as set out above.

There is currently no legislative requirement placed on payment service providers and internet service providers (ISPs) to implement technical measures (such as geo-blocking) to prevent Australians from accessing a site permitting access to prohibited gambling content (including services provided by an illegal, unlicensed offshore operator).

However, in 2015 the federal government ordered a review of the IGA (the O'Farrell Review) in advance of the introduction of the IGA Amendment Act. In its response to the recommendations of the O'Farrell Review, the government indicated that it would discuss with banks and ISPs options for the introduction of payment blocking and ISP blocking technologies as a means of restricting the access of persons located in Australia to illegal interactive gambling services as part of a three-stage plan proposed by the federal government to implement the recommendations of the O'Farrell Review.

Since November 2019, the ACMA has instituted a process of blocking access to illegal offshore gambling websites pursuant to its powers under the Telecommunications Act 1997 (Cth) (the Telecom Act). Under the Telecom Act, the ACMA may request ISPs to block access to offshore online gambling operators considered to be operating illegally in Australia. The ACMA maintains a list of illegal gambling websites which have been blocked. As at March 2021, 238 websites have been blocked by the ACMA.

Wrongdoing

iMoney-laundering

Under the Anti-Money Laundering and Counter-Terrorism Financing Act (Cth) (2006) and corresponding regulations (collectively the AML/CTF Law), gambling operators in Australia are required to comply with a number of strict reporting and procedural obligations, including, but not limited to:

  1. verification and ongoing due diligence of the identity of all customers who open an account with the operator;
  2. maintaining an anti-money laundering and counter-terrorism financing programme (AML/CTF programme), which outlines how they will comply with their obligations under the AML/CTF Law;
  3. regular reporting to the Australian Transaction Reports and Analysis Centre (AUSTRAC), the body responsible for enforcing the AML/CTF Law, of all suspicious matters, threshold transactions, compliance reports and international fund transfers; and
  4. keeping records of all transactions, electronic funds transfers, customer identification procedures, AML/CTF programmes and due diligence assessments.

Penalties for non-compliance with the AML/CTF Law are significant.

In 2015, AUSTRAC filed an action in the Federal Court against three Tabcorp Group companies for 'extensive, significant and systemic non-compliance' with the AML/CTF Law. In March 2017, the Federal Court approved a settlement agreement under which Tabcorp agreed to pay to AUSTRAC a A$45 million penalty (and costs) for contravention of the AML/CTF Law.

In 2019, various allegations that Crown Resorts and its associates had engaged in money-laundering, and possible links to organised crime, were raised by various media outlets. As a result, the ILGA convened an inquiry to consider the suitability of Crown Resorts and its NSW subsidiary to hold a casino licence. The inquiry ultimately decided that Crown Resorts was not suitable and recommended in respect of Crown Resorts and its NSW subsidiary a number of measures that should be implemented to achieve suitability (see Section VII). Additionally, in October 2020, AUSTRAC also identified potential non-compliance with AML/CTF Laws by Crown Resorts in relation to its casino in Melbourne. This included concerns over customer due diligence and adopting, maintaining and complying with an anti-money laundering and counter-terrorism financing programme. The AUSTRAC investigation is ongoing.

iiOrganised crime and match-fixing

In Australia, match-fixing is dealt with under relevant criminal legislation in most jurisdictions, (e.g., in New South Wales, Part 4ACA of the Crimes Act 1900 (NSW)). Under legislation in most Australian jurisdictions, wagering operators are required to enter into integrity agreements with each relevant racing controlling body and the leading sporting bodies on which they offer betting products.4 These agreements allow the operator to use the statistical information relating to the sporting or racing events (and participants) in return for a fee and on the condition that they agree to cooperate with these bodies by providing information about their customers' betting patterns and behaviour to assist in the investigation of match-fixing.

In August 2017, the federal Minister for Sports, the Honourable Greg Hunt, announced a review of Australia's sports integrity arrangements to be led by the Honourable James Wood AO QC (Wood Review). As part of the federal government's response to the recommendations that arose from the Wood Review, the Department of Health was given the responsibility of developing a federal regulatory framework for sports integrity. This is known as the Australian Sports Wagering Scheme (ASWS). The purpose of the ASWS is to safeguard the integrity of Australian sport and provide a sports integrity framework for sports wagering regulation at the federal level. It is anticipated that the ASWS will be operational in late 2021.

Taxation

All Australian companies, including gambling operators, are required to pay corporate income tax (currently 30 per cent)5 and goods and services tax (GST) of 10 per cent on all sales. GST is also payable by overseas suppliers of goods and services, including offshore gambling services, to Australian customers.

In addition, a number of additional taxes are imposed specifically on gambling operators. These taxes are imposed by the relevant licensing jurisdiction and represent a significant source of revenue for state and territory governments. The nature and extent of these taxes vary significantly, and include:

  1. direct gambling taxes calculated by reference to the gambling revenue of the company (as set out in the laws of the licensing jurisdiction);
  2. licence fees paid initially or on a periodic basis (depending on the licence held). In the case of exclusive licences such as retail totalisators, there is usually a sizeable upfront fee payable;
  3. fees charged by sports or racing control bodies in consideration for the use by wagering operators of race field and sports fixture information. This fee is generally calculated by reference to a percentage of gross revenue or turnover of the wagering operator in connection with the relevant sporting or racing event; and
  4. in the majority of states and territories, a PoC Tax, payable as a percentage of revenue derived from customers located in the relevant jurisdiction (see Section VII).

Advertising and marketing

The extent to which advertising of gambling is prohibited (or restricted) depends on the type of gambling in question, the form of the advertising and the jurisdiction in which the advertising is conducted.

There is a complex arrangement of rules that regulate the advertising of gambling, including in state and territory legislation, which varies from jurisdiction to jurisdiction. In addition, there are industry codes (such as the Australian Association of National Advertisers Wagering Advertising & Marketing Communication Code), as well as more broadly applicable laws, such as federal consumer laws (which prohibit misleading and deceptive conduct).

For example, overlapping requirements under state and territory laws make it an offence to publish or otherwise advertise wagering services that, among other things:

  1. encourage a breach of the law;
  2. depict children under the age of 18, or target children under the age of 18;
  3. suggest that winning will be a definite outcome of participating in gambling activities, or exaggerate claims relating to winning;
  4. suggest that participation in gambling activities is likely to improve a person's prospects;
  5. promote the consumption of alcohol while engaging in gambling activities;
  6. are offensive, or are not published in accordance with decency, dignity or good taste; or
  7. offer an inducement to open a betting account or refer a friend to open a betting account, and in New South Wales, Western Australia and South Australia, participate in a gambling activity.

Strict laws apply specifically to gambling advertisements published in traditional media, such as in print and on television and radio, as well as digital media, such as website and social media advertising.

For example, in 2017, the ACMA approved and registered new industry codes banning gambling advertisements during the broadcast of live sports on commercial free-to-air TV, pay-TV and radio. Similar bans were also introduced for online advertising by the Communications Legalisation Amendment (Online Content Services and Other Measures) Act 2017 (Cth).

Additionally, the Victorian government enacted a law in 2018 that introduced prohibitions on the display of gambling advertising on public transport, within 150 metres of a school, and on public roads, road infrastructure and road reserves. These prohibitions cover both static betting advertising (including billboards, banners, rolling static displays and the like) as well as movable and digital billboards displaying moving or video images.

With the implementation of the NCPF, stricter, state-specific advertising laws, particularly with respect to advertisements that are considered to offer an inducement to Australian customers to gamble, are being introduced (see Section VIII).

Land-based advertising in pubs, clubs and hotels where retail betting is offered is also subject to restrictions.

There are also strict requirements relating to the display of responsible gambling messages, which vary greatly from jurisdiction to jurisdiction. These messages are required to be included with all advertising material that is published by a gambling operator, including at physical and virtual points of sale.

The Australian Competition and Consumer Commission (ACCC) has also brought a successful action against an Australian online wagering operator for advertising that was deemed to be misleading and deceptive by the Federal Court.6

Importantly, the NTRC (being the regulator responsible for licensing and compliance of most sports bookmakers in Australia) recently considered its jurisdiction in connection with the engagement by an Australian licensed sports bookmaker in misleading or deceptive conduct in advertising and marketing materials. The NTRC has held that its jurisdiction does not extend to these issues.

The year in review

iPoint of consumption taxes

Since 2017, each Australian State and Territory (save for the Northern Territory) has introduced separate PoC Taxes.

In July 2017, South Australia introduced a PoC Tax payable by betting operators on bets placed by customers in South Australia at a rate of 15 per cent of net wagering revenue. During 2018, Queensland, Victoria, New South Wales, Western Australia and the Australian Capital Territory announced the introduction of a similar PoC Tax framework, each with different nuances specific to the relevant jurisdiction. More recently, in 2019, Tasmania followed suit to also implement a PoC Tax framework.

The Northern Territory has expressed opposition to the introduction of a PoC Tax.

Under the PoC Tax regimes, betting operators are required to pay tax on revenue generated from the state in which bets are placed, rather than from the state in which the operator is licensed. Despite initial attempts to harmonise the gambling taxation regime for wagering operators in Australia, the PoC Tax framework in each state and territory varies significantly in relation to the tax-free threshold, tax rate and importantly, the method for calculating taxable revenue.

Generally, the PoC Tax rates range from 8 per cent (Victoria; however this will increase to 10 per cent from 1 July 2021) to 15 per cent (South Australia, Western Australia, Queensland, the Australian Capital Territory and Tasmania).

The effect of the PoC Tax on the viability of the wagering market in Australia has not been the subject of any significant empirical study. Accordingly, the repercussions for the Australian racing and bookmaking industries are largely unknown; however, it is likely to impact materially on the costs of the smaller Australian licensed wagering operators and is likely to lead to greater consolidation (see Section VIII). In February 2021, the NSW Treasury released a consultation paper regarding a review of the PoC Tax regime in NSW. It is expected that the NSW Treasury will finalise its review by July 2021.

iiThe Lottoland case

Following amendments that came into effect in January 2019, the IGA has prohibited the provision of services for the placing, making, receiving or acceptance of bets on the outcome of Australian and overseas lottery draws to persons located in Australia

As a result, various Australian operators that had previously provided lottery betting services under a sports bookmaker licence ceased to supply that betting product. Among those Australian operators that had provided this form of betting product was Lottoland, which transitioned its betting product offering from lottery betting to other betting services which it referred to as 'jackpot betting'.

In early 2019, the ACMA conducted a review of the jackpot betting product offered by Lottoland. The ACMA came to the view that Lottoland's product was a game (rather than a betting product) and Lottoland was therefore providing a prohibited interactive gambling service in breach of the IGA. Lottoland disagreed with the ACMA's interpretation of the IGA and commenced proceedings in the Supreme Court of New South Wales to seek a declaration that its product was a betting product and therefore Lottoland was not providing a prohibited interactive gambling service in breach of the IGA.

The Supreme Court analysed the distinction between a 'bet' and a 'game' in the context of the IGA, as well as case law. On 26 July 2019, the court held that Lottoland's products are betting products and Lottoland was providing a lawful gambling service in compliance with the IGA.

In August 2020, the NTRC, following a direction from the Northern Territory Minister for Racing, Gaming and Licensing, provided final notice of its intention to impose two additional conditions onto the licences of all sports bookmakers licensed by the NTRC. If effected, these conditions would prohibit Lottoland from offering its 'jackpot betting' products under its Northern Territory licence. These conditions came into effect on 31 October 2020 for all Northern Territory licensees (other than Lottoland). In September 2020, Lottoland commenced proceedings in the Northern Territory Supreme Court against the NTRC and the Northern Territory Minister challenging the validity of the conditions and the decision to impose them. On 1 October 2020, Lottoland was granted an injunction pending the outcome of the substantive dispute to restrain the imposition of the conditions onto its licence. The matter is currently set down for further hearing in 2021.

iiiThe Crown inquiry

In July 2014, the New South Wales government granted a restricted casino licence to Crown Sydney Gaming Pty Limited (Crown Sydney) for the construction and operation of a casino at Barangaroo in Sydney (see Section II). Crown Sydney is a wholly owned subsidiary of Crown Resorts.

In one of the agreements underlying its licence, Crown Sydney undertook to ensure that it would prevent Stanley Ho, or an associate of Stanley Ho, from acquiring a direct or indirect interest, or beneficial interest, in Crown Sydney, Crown Resorts or a subsidiary of those companies.

In mid-2019, actual and proposed transactions involving Crown Resorts (and its related entities) and Melco Resorts & Entertainment Limited (Melco) (and its related entities) were publicly announced (the Transactions). At the same time, there were also media allegations of unlawful and improper conduct by Crown. These included allegations of money laundering, links to organised crime and that Crown had knowledge that its personnel were acting in contravention of Chinese law (see Section IV ).

In response, the ILGA announced the establishment of an inquiry in August 2019 into Crown Resorts, Crown Sydney and its related entities (the NSW Casino Inquiry).

On 23 June 2020, the terms of reference for the NSW Casino Inquiry were amended to reflect changes to the nature of the Transactions, including the sale by Melco of its shares in Crown Resorts. The amended terms of reference requested that the Honourable Patricia Bergin SC (the Commissioner) inquire into:

  1. the suitability of Crown Resorts and Crown Sydney and whether the Transactions caused a breach of Crown Sydney's licence or any other regulatory agreement; and
  2. the regulatory framework applicable to casinos in NSW; the Commissioner was asked to make recommendations to enhance ILGA's future capability as a casino regulator.

In February 2021, the NSW Casino Inquiry report (the Report) was tabled in NSW Parliament. In the Report, the Commissioner found that:

Crown Sydney is not a suitable person to continue to give effect to the NSW licence;

  1. Crown Resorts is not a suitable person to be a close associate of Crown Sydney; and
  2. the Transactions did not constitute a breach of the NSW licence or any other regulatory agreement.

The Commissioner notes in the Report that the changes required to render Crown Sydney and Crown suitable persons is a matter for the ILGA.

However, the Report suggests several measures that, at a minimum, should be implemented in order for Crown Sydney and Crown Resorts to demonstrate to the ILGA that they are suitable persons. These measures include a full and wide-ranging audit of Crown Resorts' accounts, enforceable undertakings along with a remediation action plan and board 'renewals' for both Crown Resorts and Crown Sydney.

The Report is currently being considered by the ILGA and the NSW government. The ILGA will soon provide a formal response to the Report, which will provide guidance as to the extent to which the recommendations of the Report will be implemented.

Following the release of the Report, each of the Victorian and Western Australian governments has convened a Royal Commission to determine the suitability of Crown Resorts and its relevant subsidiary to operate casinos in their respective jurisdictions. It is expected that these Royal Commissions will hand down their decisions in 2021.

ivCredit cards

Throughout 2019, various Australian financial institutions implemented limits on the use of credit cards for gambling-related purposes. These financial institutions included Macquarie Bank, Citibank, Suncorp, Bank of Queensland, Virgin Money, American Express and Latitude Financial.

In December 2019, the ABA released a consultation paper on the use of credit cards for gambling-related purposes. The ABA considered whether the use of credit cards for gambling-related purposes should be banned or whether practices should be adopted across the financial industry to minimise harm from gambling (including, for example, customer-directed credit blocks and specialist gambling support services). In the ABA Report, the ABA announced that there was a degree of general community support for either daily caps on credit card usage for gambling or a complete ban on credit card use.

Although there has been a prohibition at law on the provision of credit to customers by licensed gambling operators since 2017, restrictions on the use of credit cards for gambling-related purposes have not been implemented legally. Although this has also been a policy-led initiative that has been adopted by industry participants, it is now the subject of a bill before the federal Parliament (namely the Interactive Gambling Amendment (Prohibition on Credit Card Use) Bill 2020 (Cth)).

Outlook

iNational Consumer Protection Framework

On 16 December 2018, following years of discussion, it was announced that all Australian state and territory governments and the Australian federal government had reached agreement in relation to the implementation of the NCPF. The NCPF will apply to all Australian licensed online wagering operators and, to a certain extent, third-party service providers such as payment processors. The NCPF is a regulatory framework that sets 10 mandatory measures and is intended to minimise gambling-related harm through providing greater protection for Australian consumers. The measures are viewed as a minimum standard only and scope exists for the states and territories to introduce additional or more onerous measures.

The measures include, among others, the prohibition on the supply of lines of credit by wagering operators, prohibitions on specific advertising inducements, the implementation of a voluntary opt-out pre-commitment scheme, consistent responsible gambling messages in gambling advertisements and the development of a national self-exclusion register.

All of these measures were anticipated to come into effect gradually over a period of 18 months, beginning on 26 November 2018. Although various NCPF measures are already in place (such as the prohibition on the supply of lines of credit by wagering operators and the prohibition on specific advertising inducements), various measures are in the process of being implemented. For example, in December 2019, the Interactive Gambling Amendment (National Self-exclusion Register) Act 2019 and the National Self-exclusion Register (Cost Recovery Levy) Act 2019 were introduced to amend the IGA to establish a regulatory framework for the national self-exclusion register. Although these Acts have been passed, and assented to, by the Federal Parliament, the ACMA as the regulator responsible for the administration of the national self-exclusion register has advised that it will not be operational until at least June 2021.

iiAdvertising restrictions

As indicated in Section IV, a suite of reforms have been introduced since 2017 that has significantly changed the way in which sports betting operators are permitted to advertise their services.

In particular, as part of the NCPF, each Australian state and territory has introduced laws that prohibit specific advertising inducements. In essence, a sports betting operator is prohibited from publishing to the world at large an advertisement that offers a credit, voucher or reward to a person as an inducement either to open a betting account or refer another person to open a betting account. In New South Wales, Western Australia and South Australia, the scope of these prohibitions extend further to prohibit sports betting operators from publishing an advertisement that offers a reward, benefit or consideration to a person to participate or continue to participate in a gambling activity.

There are limited exceptions to the prohibitions on specific advertising inducements. An example of this is in circumstances where an advertising inducement is offered to an existing account holder of the sports betting operator in direct marketing or, in certain jurisdictions, where promoted on a racing platform.

Additionally, sports betting operators are prohibited from offering a bonus bet to a person unless the winnings from a bet made with that bonus bet can be withdrawn immediately without being subject to a requirement that the account holder continue to bet with those winnings.

iiiConsolidation

In December 2017, Tabcorp Holdings Limited (Tabcorp) and Tatts Group Limited (Tatts) merged after receiving the approval of the Australian Competition Tribunal.

Facing increasing regulatory costs and the greater competition posed by the merged entity that comprises Tabcorp and Tatts, who hold the exclusive right to offer retail wagering services across Australia, it is likely that many Australian licensed wagering operators will look to the international market for support, which is likely to result in further consolidation. This is evidenced by the acquisition in March 2018 of CrownBet and William Hill Australia by The Stars Group, which is listed on the Toronto Stock Exchange, and the acquisition in November 2018 of Australian wagering operator Neds by Ladbrokes Australia, whose parent company GVC Holdings is listed on the London Stock Exchange. More recently, in May 2020, Flutter Entertainment (which owns Sportsbet) merged with The Stars Group (which owned BetEasy). The merger of Flutter Entertainment and The Stars Group resulted in Sportsbet absorbing the BetEasy business.

Further, it has been reported that Tabcorp has received offers from various entities, including the Entain Group (the operator of the Ladbrokes and Neds bookmaking businesses in Australia) to purchase Tabcorp's wagering business. Although those offers have been rejected, it is contemplated that there will be further significant changes in the Australian wagering sector in the course of 2021.

 

Footnotes

1 Jamie Nettleton is a partner and Shanna Protic Dib and Brodie Campbell are solicitors at Addisons.

2 It is possible for the purchase of a product or service (at normal retail value) to be a condition of entry.

3 There is also specific state and territory legislation regulating interactive gambling, for example, Chapter 7 of the Gambling Regulation Act 2003 (Vic).

4 Generally, these agreements are entered into by wagering operators with the leading sporting bodies on a national basis.

5 It is proposed that this will be reduced to 25 per cent for businesses whose annual turnover is less than A$50 million by 2026–27.

6 Australian Competition and Consumer Commission (ACCC) v. Hillside (Australia New Media) Pty Ltd t/as Bet365 [2015] FCA 1007.

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