National Self-exclusion Register (Cost Recovery Levy) Determination Variation 2023 (No. 1)

EXPLANATORY STATEMENT

Approved by the Australian Communications and Media Authority

National Self-exclusion Register (Cost Recovery Levy) Act 2019

National Self-exclusion Register (Cost Recovery Levy) Determination Variation 2023 (No. 1)

Authority

The Australian Communications and Media Authority (the ACMA) has determined the National Self‑exclusion Register (Cost Recovery Levy) Determination Variation 2023 (No 1) (the instrument) under subsections 9(1) and 11(1) of the National Self-exclusion Register (Cost Recovery Levy) Act 2019 (the Act) and subsection 33(3) of the Acts Interpretation Act 1901 (the AIA).  

Under section 7 of the Act, a levy is imposed on a licensed interactive wagering service provider if they requested access to the National Self-exclusion Register (the Register) under subsection 61NC(1) of the Interactive Gambling Act 2001 (the IGA) at least once during the levy period.

Subsections 9(1) and 11(1) of the Act authorise the ACMA to determine, by legislative instrument, the method for working out the amount of the levy and designated levy periods and the applicable percentage for a particular designated levy period.

Under subsection 33(3) of the AIA, where an Act confers a power to make, grant or issue any instrument of a legislative character the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

Purpose and operation of the instrument

The purpose of the instrument is to vary the National Self‑exclusion Register (Cost Recovery Levy) Determination 2022 (the determination) to enable the full recovery of the costs associated with the operation of the Register, including the upfront costs of establishing the Register. The variations in the instrument are necessary to account for the extra time which has been necessary to implement the Register.

Further relevant background is set out in the Explanatory Statement and Supplementary Explanatory Statement to the determination, which are also relevant to the instrument.

When the determination was made, it was anticipated that the Register would commence during the 2022-23 financial year. This did not occur because the intended Register operator went into administration in early 2023. Following a due diligence process, arrangements needed to be put in place to allow for the transition to the new Register operator, which impacted on the timeframes for commencement.  The Register is now set to commence operations in the 2023-24 financial year, with a start day of 21 August 2023 proclaimed for the purposes of subsection 61GC(1) of the IGA under section 4 of the Interactive Gambling (National Self‑exclusion Register Start Day) Proclamation 2023 (the Proclamation Instrument).

To ensure the full recovery of costs, the instrument amends:

The designated levy periods are periods in which the ACMA may specify a percentage of its upfront costs to be recovered, as per section 11 of the Act. The ACMA’s upfront costs are, in essence, the sum of the costs incurred by the ACMA before the Register commences operations, as set out in section 12 of the Act.

The ACMA, as a non-corporate Commonwealth entity (as defined under the Public Governance, Performance and Accountability Act 2013), is required to apply the Australian Government Charging Framework (RMG-302) and Australian Government Cost Recovery Guidelines (RMG-304) (the CRGs) to regulatory charging activities.

A provision-by-provision description of the instrument is set out at Attachment A.

The instrument is a disallowable legislative instrument for the purposes of the Legislation Act 2003 (the LA).

Documents incorporated by reference

The instrument incorporates the following Acts and instrument (including by the adoption of definitions), or otherwise refers to them:

The Acts listed above, where they are incorporated, are incorporated as in force from time to time, in accordance with section 10 of the AIA and subsection 13(1) of the LA and may be obtained from the Federal Register of Legislation free of charge at http://www.legislation.gov.au.

Consultation

Before varying the determination, the ACMA was satisfied that consultation was undertaken to the extent appropriate and reasonably practicable, in accordance with section 17 of the LA.

The ACMA undertook a public consultation on the proposed variation by publishing a consultation paper and a copy of the instrument on the ACMA’s website seeking comments between 10 and 24 July 2023. The ACMA also undertook targeted consultation by contacting each licensed interactive wagering service provider, of which there were approximately 140, and other key stakeholders, including state and territory regulators and licensing bodies, government departments, industry peak bodies and IT providers to industry, inviting them to comment on the draft variation and proposed cost recovery arrangements.

The ACMA received a total of 3 submissions from industry stakeholders. All non-confidential submissions were published on the ACMA website after consultation had closed. Two submissions proposed that the recovery of the ACMA’s upfront Register costs be extended into the 2026-27 financial year, which it is noted is inconsistent with the agreed policy for the ACMA’s upfront costs to be recovered by the end of the 2025-26 financial year.

The ACMA considered all relevant issues raised by the submissions when varying the determination.

The ACMA also consulted the relevant Minister, as required by subsections 9(2) and 11(4) of the Act.

Regulatory impact assessment

The Department of Social Services undertook a Council of Australian Governments’ Decision Regulatory Impact Statement to support the implementation of the National Consumer Protection Framework for online wagering which includes the Register. The Office of Impact Analysis has determined that, as the Decision Regulatory Impact Statement had been completed, additional analysis is not required for the implementation of the Register’s cost recovery arrangements (reference ID 20531).

Statement of compatibility with human rights

Subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 (the HRPS Act) requires the rule-maker in relation to a legislative instrument to which section 42 (disallowance) of the LA applies to cause a statement of compatibility with human rights to be prepared in respect of that legislative instrument. 

Human Rights Implications

The ACMA has assessed whether the instrument is compatible with human rights, being the rights and freedoms recognised or declared by the international instruments listed in subsection 3(1) of the HRPS Act as they apply to Australia.

In the Statement of Compatibility with Human Rights for the determination the ACMA formed the view that the determination was compatible with human rights as it did not raise any human rights issues. The ACMA also considers that the instrument does not engage any human rights or freedoms, nor does it make changes to the determination that give rise to human rights concerns.  

Conclusion

The instrument is compatible with human rights as it does not raise any human rights issues.

Attachment A

Notes to the National Self-exclusion Register (Cost Recovery Levy) Determination Variation 2023 (No. 1)

Section 1 Name

This section provides for the instrument to be cited as the National Self-exclusion Register (Cost Recovery Levy) Determination Variation 2023 (No. 1).

Section 2 Commencement

The instrument varies the National Self‑exclusion Register (Cost Recovery Levy) Determination 2022 (the determination). Background to the commencement arrangements for the National Self-exclusion Register (NSER) regime are set out in the Supplementary Explanatory Memorandum for the determination.

In summary, the determination forms part of an integrated package of laws designed to operate together to create the NSER regime, which commence when the NSER regime is operational. The NSER will become operational on 21 August 2023, being the ‘proclaimed start day’ (as defined in section 61GC of the Interactive Gambling Act 2001 (IGA)) under section 4 of the Interactive Gambling (National Self‑exclusion Register Start Day) Proclamation 2023 (Proclamation).

This section provides for the instrument to commence at the start of the day after it is registered on the Federal Register of Legislation.

This will allow for the variations to the determination to take effect in time before the determination commences.

The note to this section explains that the determination will commence at the start of the day on 21 August 2023, being the proclaimed start date for the purposes of subsection 61GC(1) of the IGA under section 4 of the Proclamation.

Section 3 Authority

This section identifies the provisions of the Act that authorise the making of the variation, namely subsections 9(1) and 11(1) of the National Self-exclusion Register (Cost Recovery Levy) Act 2019 (the Act).

Section 4 Amendments

This section provides that the determination is amended as set out in the applicable items in Schedule 1.

Schedule 1  Amendments

Item 1   Section 4 (after the definition of ‘ACMA’)

This item repeals applicable definitions from section 4 of the determination and provides substitute definitions for the listed terms.

The word ‘the’ has been inserted into the definition of ‘Act’ for correct syntax.

The definitions of ‘designated levy period 1’, ‘designated levy period 2’ and ‘designated levy period 3’ have all been amended to reflect that charging under the determination will now commence in the 2023-24 financial year, rather than the 2022-23 financial year as the original determination had specified. Accordingly, these 3 designated levy periods have each been moved back a year.

The definition of ‘designated levy period 4’ has been removed because there will no longer be a fourth designated levy period. All the ACMA’s upfront Register costs will be recovered from industry by the end of the 2025-26 financial year, being ‘designated levy period 3’ consistent with the costings agreed by the Government.  

Item 2  Section 7 (paragraph 7(b))

This section amends a table setting out the designated levy periods, being the period from  the proclaimed start day (21 August 2023) to 30 June 2024 and the two financial years from 2024-25 and 2025-26, in which the ACMA will recover the upfront costs for providing the Register, and the applicable percentage of these upfront costs to be recovered in each period.

The applicable percentages for the relevant designated levy periods have been adjusted to reflect that the ACMA’s upfront Register costs will now be recovered over 3 designated levy periods instead of 4. The adjustment of the applicable percentages has balanced out the amount payable in each designated levy period in an attempt to minimise peaks for persons on whom the levy is imposed.