.svg)
The New South Wales (NSW) state gambling regulator is pushing for a shift by betting companies from strict legal compliance to harm prevention, citing and attacking strategic “resistance” from “certain operators” that are likely to face tougher measures later this year.
Jane Lin, executive director of regulatory operations and enforcement for New South Wales (NSW) state regulator Liquor & Gaming NSW, has revealed the regulator’s frustration with resistance from a minority of online operators amid revolving fines over illegal gambling ads.
In a thoughtful and at times exasperated presentation to the Regulating the Game conference in Sydney on Monday (March 11), Lin said corporate bookmakers have avoided large penalties in part because of lenient judges.
“Over [the last few years] we’ve seen significant resistance from industry to our interpretation of the legislation, testing of the law, and pushing boundaries,” she said.
“We've seen several operators breach the law, the same law, on multiple occasions.
“Over that time, the maximum penalty in the [Betting and Racing] Act [1998] has also increased, and that has also, consequently, increased the amount of the infringement notice” that Liquor & Gaming NSW separately wields over offenders.
Lin said these infringement notices have at times served as proxies for court punishments.
“We've had mixed results in the courts,” she said. “Some of the fines levied by courts in the space have not been considered ... high enough, particularly given the financial resources of the operator in question.
“And we have at times used those penalty infringement notices, which are A$15,000 [$9,900] each, to signal our disapproval of behaviour.”
However, she said, “it has felt very much like whack-a-mole”.
The regulator appears set to launch new restrictions on the industry, pending the federal government’s response to a parliamentary committee’s unanimous recommendation banning all gambling advertising within three years.
Whatever the outcome, the interim response of Liquor & Gaming NSW suggests a new crackdown.
“We have issued new guidelines [internally], and for those of you who are wondering when the new version will be released, we're just waiting on the outcome of the Commonwealth enquiry into online gambling,” Lin said.
Lin’s harsher words recalled Liquor & Gaming NSW’s publication of a state-wide industry alert last December in response to not only ongoing law-breaking, but also harmful, envelope-pushing tactics by operators that fall within the law.
These tactics, according to Lin, include knowingly sending offers to customers who are excluded by other operators, placing barriers to closing accounts such as closure fees, excessive barriers to withdrawing funds, sharing private consumer information between related operators, and “relying on [anti-money laundering] obligations as a rationale, in some cases, when those were … pushing the truth”.
Lin said the bulk of the industry has been cooperative and proactive in addressing gambling harm.
“I am pleased to say we have seen a change over time,” she said.
Today, prosecutions are as much about “systems failures” that see operators inadvertently publishing illegal advertisements in NSW that are legal in at least one other state or territory.
And the “vast majority” of operators have displayed compliance and a “true desire to go beyond the letter of the law”.
However, there remain a “certain few” that may be pushing back against what they consider to be regulatory overreach, Lin said.
She “strongly refuted” purported industry commentary that the regulator was enforcing the spirit, rather than the letter, of the law.
Lin then cited the recently acquired ability of the Victoria state regulator, the Victorian Gambling and Casino Control Commission (VGCCC), to require good operator conduct that goes beyond the legal code.
“Is that beyond our power? And if it isn’t the regulator’s job to try and eliminate harmful behaviour, whether illegal or not, then whose job is it?”
Lin said resistance to the idea of a regulator attacking harmful behaviour as an overarching concern, even beyond strict legal compliance, calls into question the commitment of the operator to “genuine harm prevention”.
“So while it's easy for both the regulator and the operator to get caught up in notions of compliance culture, and thinking about toeing the regulatory line, I urge operators to think beyond compliance to harm prevention.
“Not so much about what the law says, but about the protective intent of it, and how you can achieve that to reduce the potential harm from your products,” she said.
Victoria’s regulator is today blazing a trail in terms of the size and scope of punishments for non-compliant gambling operators, but NSW remains the most litigious state in terms of case numbers.
Even so, successful convictions in NSW rarely exceed tens of thousands of dollars, and Liquor and Gaming NSW is yet to publicly prosecute individual directors or managers of corporate bookmaker entities, despite wielding this option years ago.
