Overview

This article addresses the following issues:

1. Is it legal for an individual in Australia to participate in online gambling?
2. Are online gambling services prohibited in Australia at the Federal level?
3. Are online gambling services prohibited in Australia at the State and Territory level?
4. Is the advertising of online gambling services allowed in Australia?
5. Is there a complaint system in place allowing the public to lodge a complaint against the provision of online gambling services?

I. Is it legal for you to gamble online?

The short answer to Issue 1 is yes in most cases. The federal legislation prohibiting online gambling in Australia targets the suppliers of prohibited gambling services, not the customers of the services.

However, you also need to consider any applicable state law. For example, if you are in Queensland or the ACT you will be breaching the law if you knowingly participate in unauthorised gaming (ie gaming services that the supplier is not licensed to provide).

II. Are online gambling services prohibited in Australia at the federal level?

The Interactive Gambling Act 2001 (Cth) (“Federal Act”) targets the providers (not the actual or potential customers) of interactive gambling services: it is an offence to provide interactive gambling services to a customer physically present in Australia, irrespective of whether the customer is an Australian or not.(1)

The offence applies to both local and foreign interactive gambling services providers. However from a practical perspective, only those foreign interactive gambling providers that have a connection to Australia are likely to be prosecuted.

The maximum penalty for the offence is $220,000 per day for an individual (2) and $1.1 million per day for a body corporate. (3)

What are "interactive gambling services"?

"Interactive gambling services" are defined by the Federal Act as "gambling services" provided, in the course of carrying on a business, using:

* an internet carriage service;
* any other carriage service which has at least one point in Australia; (4)
* a broadcasting service;
* another content service; or
* a datacasting service. (5)

In turn, "gambling services" are broadly defined as:

* A service for making bets or introducing individuals to other individuals who wish to make bets; or
* A service for the conduct of a lottery or for the supply of lottery tickets; or
* A service for the conduct of a gamewhich is played for anything of value and which involves an element of chance (games “predominantly of skill”, such as computer games, fall outside the definition of gambling services and are not prohibited (6)); or
* any gambling service (within the ordinary meaning of that expression) that does not fall into any of the above categories. (7)

However, express exemptions exist for: (8)

* A telephone betting service.

* A service for online wagering - for example, on a horse race, a harness race, a greyhound race, on an event or a series of events or (provided bets are accepted only before commencement) on a sporting event.

* A public gaming service (that is, specific gaming services provided in licensed pubs, clubs or casinos including linked poker machines in clubs). (9)

* A gambling service associated with a particular broadcasting or datacasting program, or where its sole purpose is to promote goods or services that are advertised on a broadcast service. (10) Examples are interactive TV game shows and promotions with entry fees in the form of a 1900 telephone number.

* Online lotteries and online sale of lottery tickets (but not online scratch or instant lotteries). (11)

* Contracts that are financial products within the meaning of Chapter 7 of the Corporations Act 2001 (Cth) . This includes contracts for options, futures and agreements entered into on a futures market or a futures exchange.

* Exempt services as determined by the Minister. (12)

Australian customers

The interactive gambling service provider would not have committed an offence under the Federal Act if it did not know and could not, with reasonable diligence, have ascertained that its service had Australian customers. (13)

For more details on what is prohibited under the Federal Act, see the Online Gambling Facts Sheet .

The various state and territory regimes are discussed in the last section of this article.

III. Is there a formal process under which I can make a complaint about online gambling services?

The answer to this question is yes. You can make a complaint to the Australian Broadcasting Authority (ABA) under the Federal Act where there is reason for you to believe that end-users of an internet service carriage service can access prohibited interactive gambling content in Australia. (14) You can do this through the ABA’s online complaints form.

The complaint must:

* identify the internet content;
* set out how to access the internet content, for example a URL or a password;
* identity the country where the content is hosted, if it is known;
* set out your reasons for believing the internet content is prohibited internet gambling content; and
* set out any other information the ABA requires.

You can also make a complaint about an ISP that breaches the Code. The ABA may issue the ISP with a direction to comply with the Code. (15) If the breach continues, the ABA may direct the ISP to implement procedures designed to ensure that future breaches do not occur. (16)

If your complaint is made in good faith, you will receive immunity from any civil action arising against you as a result of the complaint. (17)

Investigation of complaints by the ABA

After the ABA receives a bona fide complaint, it will take the following courses of action:

Internet content hosted in Australia

If the internet content is hosted in Australia and the ABA considers that the complaint should be referred to an Australian police force, it must do so and advise the complainant of this in writing. (18)

Internet content hosted outside Australia

If the internet content is hosted outside Australia, and the ABA believes that the content needs to be referred to either a domestic or a foreign law enforcement agency, it must contact a member of an Australian police force. (19)

The ABA must also notify the ISP industry of the prohibited gambling internet content in accordance with the designated notification scheme specified in the Interactive Gambling Industry Code 2001 .

Interactive Gambling Industry Code 2001 (“Code”)

The Code was developed by the Internet Industry Association and was registered by the ABA on 13 December 2001. Essentially the Code sets out the designated notification scheme under which the ABA is to notify the industry of prohibited gambling content, and the procedures the industry should follow in dealing with the relevant content. More specifically:

* the ABA is to directly notify (by email or otherwise) the Suppliers of Scheduled Filters (being those filters listed in Schedule 1 of the Code) of the prohibited internet gambling content and is to regularly email ISPs notifying them of the content;

* upon receiving notification from the ABA, the suppliers are to up-date the filters so as to block access to the relevant content. In turn, the ISPs are, as soon as reasonably practicable and at a charge determined by the ISP, to offer their subscribers an up-to-date filter that prevents access to the relevant content. The filters can be provided through online registration or a notification, with links to effect download activation and instructions for use. There is no obligation on people to buy or use these filters. In addition, if the internet subscriber already has an effective means of preventing access to the prohibited sites, the ISPs do not have to offer a filter.

Compliance with the Code is voluntary unless the ABA directs an ISP to comply with the Code. (20) Non-compliance with a direction results in a maximum penalty of $5,500 for individuals and $27,500 for corporations, with an additional 10% for every day the offence continues. (21)

The ABA may also apply to the Federal Court for an order that the ISP cease supplying the relevant internet carriage service. (22)

IV. Is the advertising of interactive gambling services allowed in Australia?

The answer to this question is no. The Federal Act prohibits the broadcasting, datacasting and publishing of advertisements for interactive gambling services in Australia. (23) An example of publishing an advertisement in Australia would be to place it on a website which is aimed at Australian end-users. (24)

For more details on the advertising offences and the defences to them, see the Online Gambling Facts Sheet .

V. Are online gambling services prohibited in Australia at the State and Territory level?

The Federal Act expressly allows for the concurrent operation of state and territory legislation to the extent that it does not conflict with the federal legislation. (25) Both the Federal Act and the relevant state or territory legislation need to be examined for the applicable laws on an issue. It is important to be aware that:

* If a service/activity is exempted under the Federal Act, it may not necessarily be exempt under a state or territory law; and

* A service/activity may be prohibited under the Federal Act even if it is licensed or authorised under a state or territory law.

In light of the Federal Act, state or territory specific internet gaming legislation continues to be of significance but primarily only in so far as it regulates the licensing of Australian-based interactive gaming providers in the provision of interactive gambling services of-shore. In addition, certain state acts create an offence of participating in online gambling.

Please be aware that the following discussion on State or Territory legislation is subject to the above legislative limitations and uncertainties.

Specific online gambling legislation in the ACT, Queensland and Victoria

Prohibition on unauthorised interactive gambling

Generally, you must not participate in, encourage or facilitate another to participate in an interactive game if you know that the game is not an authorised game. (26)

What interactive games are regulated?

An interactive game in which:

* Potential exists for winning a prize consisting of money or value through the rules of the game;

* Players participate by means of a “telecommunications device” and make a payment to participate in the game; and

* A winner of a prize may be decided by chance or skill;

are regulated under legislation of these states.

Interactive games which are not regulated Generally, the legislation does not apply to racing and betting games authorised under other Queensland, Victorian or ACT gaming legislation.

Authority to conduct a particular interactive game

The Minister may give an authorisation to a licensed Service Provider (SP) to conduct a particular interactive game. SPs must comply with a number of legislative requirements (eg withholding gaming services from minors and nominated problem gamblers). These requirements are discussed in more detail in the Online Gambling Fact Sheet.

Northern Territory and Tasmania

In both states, existing gaming legislation has been amended to regulate internet gaming. However, the legislation does not create an offence of participating in unauthorised gaming.

New South Wales, South Australia and Western Australia

New South Wales, South Australia and Western Australia have not enacted specific legislation on internet gambling. The existing legislative regimes in these States contain prohibitions which apply in general terms to prohibit operators from providing or promoting interactive gambling services to residents in those States.

Despite the lack of specific legislation, certain operators in those States have been granted licences to carry on interactive sports betting and wagering services on the internet. (27)


Other relevant Articles on this site:


Other relevant Fact Sheets:

End Notes
=1. Interactive Gambling Act 2001, s 15.
2. This is aimed at directors and chief executives of companies, Interactive Gambling Act 2001 (Cth), s 15.
3. Under subsection 4B(3) of the Crimes Act 1914 (Cth) if a body corporate is convicted of an offence against a Commonwealth law, the Court may impose a penalty of up to 5 times the amount of the maximum penalty that could be imposed on a natural person.
4. Telecommunications Act, s 16.
5. Interactive Gambling Act 2001, s 5.
6. Interactive Gambling Bill 2001 Revised Explanatory Memorandum, page 14.
7. Interactive Gambling Act 2001, s 4.
8. Interactive Gambling Act 2001, s 5(3).
9. Interactive Gambling Act 2001, s 8B. Specific gaming services are those for the conduct of a game, where:
* the game is played for money or anything else of value; and
* the game is a game of chance or of mixed chance and skill; and
* a customer of the service gives or agrees to give consideration to play or enter the game. (sub section 5(e))
10. Interactive Gambling Act 2001, s 8C.
11. Interactive Gambling Act 2001, s 8D.
12. Interactive Gambling Act, s 10.
13. Interactive Gambling Act, s 15(3).
14. Interactive Gambling Act 2001, s 16. The complainant must be an Australian resident or a company carrying on activities in Australia: Interactive Gambling Act 2001, s 19.
15. Interactive Gambling Act 2001, s 42.
16. Interactive Gambling Act 2001, s 56.
17. Interactive Gambling Act 2001, s 23.
18. Interactive Gambling Act 2001, s 20.
19. Interactive Gambling Act 2001, s 24.
20. Interactive Gambling Industry Code, para 4.
21. Interactive Gambling Act 2001, ss 55 and 57.
22. Interactive Gambling Act 2001, s 59.
23. Interactive Gambling Act 2001, ss 61DA and 61EA.
24. Interactive Gambling Act 2001, s 61EA(3).
25. Interactive Gambling Act 2001, s 69.
26 Interactive Gambling (Player Protection) Act 1998 (Qld) s 16; Interactive Gambling (Player Protection) Act 1999 (Vic), s 9; Interactive Gambling Act 1998 (ACT) .
27. Unlawful Gambling Act 1998 (NSW) ; Lottery and Gaming Act 1936 (SA); Gaming and Betting (Contracts and Securities) Act 1985 (WA) ;