8 Facts about Australian Online Casino Laws

Few countries have created a more confusing set of online gambling laws than Australia. To sum up the official Australian legal code's position on online gambling in one sentence, we can say that it is legal for Australian residents to gamble online provided no one tells them where to gamble online and then only at legally recognized online betting sites which, if Australian, are tied to a land-based business or, if not Australian, don't otherwise break any laws.

In other words, our Aussie friends can take their money and gamble it wherever they wish as long as the Website they use is not promoting itself to Australian citizens as a "real money" gambling site, other than as the official Website for a land-based booking operation. And so with a wink and a sly smile many Australian gamblers nudge their ways around the Web to find the gambling sites that don't promote themselves to Australians but which, happily, don't turn Australians away.

Here are a few interesting facts about Australian online gambling laws and how they affect the citizens' wagering practices today.

1. It's Not Interactive Gambling If You Make the Wager Ahead of the Event

This is a funny legal point. You cannot play a slot game (called a "pokie" in Aussie lingo) where you make your wager in advance of the event (spinning the reels). So it would appear that this aspect of the 2001 Interactive Gambling Act was intended to make online pokie gambling illegal. The wager is made at the moment you click on Spin, which is when the event (the game) begins.

Bookies can take wagers well in advance of the sporting events that they cover. Hence, a land-based booking operation can accept wagers over the Internet provided it stops taking those wagers just prior to the advent of the game.

Admittedly, there are differences between sports betting and gambling on the pokies because in sports betting the odds may change over time as bettors change their positions (by laying new bets), or as unexpected events (such as athletic injuries or changes in rosters) change the likely outcomes of games. To allow the bookmakers to continue operating the IGA simply defines "interactive" gambling as wagering on an event as it occurs.

2. The Australian Communications and Media Authority Can Create Industry Standards

Interactive gambling is regulated by the ACMA in Australia for Australians and, technically, for everyone else on Earth. The Australian laws may not be enforceable in other countries but international treaties do sometimes require countries to respect and support each others' laws in various ways. It was for this reason that New Zealand assisted the US Federal Bureau of Investigation in arresting and prosecuting Kim Dotcom, the New Zealander whose file sharing service flagrantly violated US intellectual property rights laws.

Those treaties don't always work as intended. For example, Antigua has been winning arbitration arguments against the United States, which the World Trade Organization says must change its online gambling laws in order to comply with treaties the USA has signed. To date the US government has yet to comply with the WTO judgment and is technically subject to sanctions. Good luck with that, Antigua!

The 2001 IGA says that in cases where "prohibited Internet gambling content is hosted outside Australia, the ACMA must … notify the content to internet service providers so that the providers can deal with the content in accordance with procedures specified in an industry code or industry standard". Further on the act says "the ACMA has the reserve power to make an industry standard if there is no industry code or if an industry code is deficient".

Clearly the ACMA can only compel Australian ISPs to comply with the law, but any industry standards ACMA compels its subject providers to adopt could be used as guidelines by other countries. Internet service providers thus find themselves between a rock and a hard place: if they don't make a standard that satisfies the government censors the government censors will make a standard that they are satisfied with.

So what happens across the border when, say, a wireless company inadvertently provides service to an Australian citizen inside Australian that is used to access prohibited content?

Whose standards should prevail?

These questions have not yet been tested in international diplomacy and courts of law.

3. Australians Can Legally Access Prohibited Content While Outside Australia

According to Part I, Section 8 of the 2001 IGA "a gambling service has an Australian customer link if, and only if, any or all of the customers of the service are physically present in Australia." Although the legal experts may have much to say about what this means in the details of enforcement, it does sound like as soon as you are in international waters (or above them) you can log into your online casino account and gamble without getting yourself or the online casino into trouble.

Then again, will the Australian police really raid the server rooms in Antigua?

4. Spinning the Reels in a Slot Game Is Not an "Event"

Although physicists may disagree with the Australian legislators who drafted the law, when you click on "Spin" in your favorite pokie you are not initiating an event. We know this because Section 8A defines excluded wagering services and includes (in that exclusion) any wagering service ‘to the extent which it relates to betting on … an event or a series of events or a contingency”. These exclusions are further clarified to describe sporting events, separate from slot gaming non-events.

But just to be on the safe side, the law further clarifies that the wagering must be done by customers in a public place. You can make wagers in the local pub but apparently the public does not have access to the Internet, or else the Internet has not yet achieved the status of being a "public place" under Australian law.

5. Australia May Designate Countries Where the 2001 IGA Applies

In recognition of the sovereignty of other nations, the Australian law stipulates that should other countries pass similar legislation regulating online gambling and request that Austrailan Minister do so, the government of Australia may declare (through a process defined by law) that country to be a designated country for the purpose of 2001 IGA. In other words, if the two countries have similar laws and the other guys don't want Australian citizens using their Websites to gamble, they can agree to make it illegal for Australians to gamble via their Websites.

This is a complicated bit of law that anticipates some international effort at suppressing online gambling. Perhaps it was intended to help countries like the United States figure out what they wanted to do about gambling online. The net effect for Australians is that it is legal for them to gamble in other countries so long as those countries and their own government do not come together to say otherwise. This requires a degree of reciprocity between Australian and foreign law that may never universally happen.

6. The 2001 IGA Encourages Complaints to the ACMA about Prohibited Content

Should you find a Website that promotes itself to Australian citizens for "real money" gambling, you are encouraged to file a complaint with the ACMA so they may initiate an investigation. To do this you must:

If the online complaints form is offline you can send an email to [email protected] but your complaint must be submitted in writing and, if you wish, you may remain anonymous when making your complaint. However, the ACMA provides no physical mailing address for submitting an anonymous written complaint.

Who should complain about prohibited content? Well, that's a very good question.

7. Ignorance Is an Acceptable Excuse

If this were an American law "ignorance would be no excuse" but the 2001 IGA provides an exclusionary section that says if you did not know you were promoting a service with an Australian-customer link (and could not have reasonably ascertained as much) then you don't have to worry about being prosecuted under the law.

This section could serve as a blueprint for creating anonymous, "dark Web" online casinos who have no idea of who their customers are. Connecting through, say, the Tor network or an online proxy service would mask the Australian's location from the online casino and the customers could also use non-Australian currencies to make deposits and withdrawals. Perhaps this part of the law was not as well thought out as it should be.

8. It Is Illegal to Promote Online Gambling Services … Except When Online

Perhaps in a nod to the impossibility of regulating and managing online content, the 2001 IGA makes it illegal to promote online gambling services in many offline venues, with a few exceptions to safeguard free speech. But Website-based promotion of otherwise illegal gambling services is not forbidden; hence, if you run an online casino that illegally promotes itself to Australian citizens you can, apparently, legally advertise your domain name (but not the service) to Australian citizens.

In other words, it is not illegal for an interactive gaming site to make itself known to Australian citizens provided it does not do business with them. It may be that this part of the law merely shields everyone from a compelling case for building a national firewall, which would surely result in a firestorm of free speech protests.

The ACMA has the authority to create a national firewall, or to compel Internet Service Providers to filter content from designated Websites. This authority appears to only be directed at child pornography, sexual violence, and any illegal content identified through the complaints system. It could be that some gambling sites are blocked but the current political environment suggests that no viable solutions for widespread enforcement of the law have been identified or enacted.

Conclusion

In reality the situation in Australia with respect to gambling is not much different from what is happening in other countries, even the United States. Although laws have been enacted to curtail online gambling it remains very popular. Only when the governments make arrests and seize Websites, as when the FBI shut down major poker Websites in 2011, does enforcement of the law curtail widespread gambling activity. But online gamblers eventually recover from the industry setbacks and find new ways to gamble.

As often happens when prohibition laws are enacted, advocates of the outlawed activities argue that when you make the action illegal you force people to become criminals. The argument can be taken to absurd extremes (such as saying that there would be no murderers if we did not outlaw the killing of other people). Society needs to find a balance between protecting citizens from the harm inflicted through exploitation of the masses and protecting the freedom to take risks that only threaten one's own self. Gambling addiction, of course, like any other addiction, can harm members of an addict's family, but most people do not become addicted to gambling.