Under the National Gambling Reform Act 2012 (the NGR Act), the National Gambling Regulator (the Regulator) is responsible for monitoring, promoting, investigating and enforcing compliance with the Act.
Chapters 7 and 8 of the NGR Act provide the Regulator with a range of monitoring and enforcement powers to facilitate compliance. The Regulator may also provide information and advice, and cooperate with relevant persons to promote compliance with the NGR Act.
It is at the discretion of the Regulator to determine how it will broadly work with regulated entities to monitor and enforce compliance with the NGR Act. This includes the extent to which the Regulator will, for example, engage cooperatively with industry to help them meet their obligations.
The Minister for Social Services, the Hon Kevin Andrews MP, has written to the Secretary of the Department of Social Services outlining the Australian Government’s expectations about the administration of the National Gambling Regulator’s statutory functions.
- Letter from Minister Andrews to the Secretary
The Minister for Social Services has issued a Ministerial Direction (Direction) on the administration of the ATM measure, by legislative instrument, under subsection 110(1) of the National Gambling Reform Act 2012 (NGR Act). The Direction aims to give industry further certainty around the regulatory approach and priorities (including determining ATM exemption applications), and sets out processes for responding to potential non‑compliance. This includes establishing mandatory requirements for responding to potential non-compliance through ‘cooperative engagement’, and a procedure to ensure genuine applications for exemption are settled before responding to potential non-compliance (whether on the part of the ATM provider or venue).
Generally, the most effective regulatory approach will depend on the circumstances. In line with the Government’s agenda to reduce regulation and red tape, an educative approach is considered most suitable in this instance since it will help minimise costs for industry in meeting their obligations under the NGR Act.
In this environment, it is recognised that regulated entities operate under existing State and Territory gaming laws and that a dual regulatory regime may introduce unique challenges. Engaging cooperatively with industry will help provide practical solutions for responding to and ensuring they remain compliant.
At the same time it will also help to avoid creating unnecessary duplication in administration. An educative approach will also encourage voluntary compliance, in an industry with considerable experience in compliance (and where the risks of non-compliance are low).
The Regulator will emphasise education to promote compliance with the NGR Act. This will involve developing resources to help industry understand their obligations, including assisting applicants to seek relevant exemptions or approvals where appropriate.
The Regulator will also work collaboratively with stakeholders, in particular State and Territory regulators, to ensure there is clarity and certainty about what regulated entities must do under each regime.
While the Regulator will seek to assist industry where it can and make its position clear, under the NGR Act responsibility for compliance rests with the regulated entities. It is therefore a matter for regulated entities to decide whether they wish to seek their own legal advice and decide how to respond.
While regulated entities remain obligated to implement the measures under the NGR Act, the focus at this time will be on engagement and education. The Regulator will also respond to individual instances of non-compliance that it becomes aware of.
Over time, a more proactive approach to monitoring and inspection activities may be developed. This could focus on areas assessed as carrying the highest risk.
In responding to non-compliance, the Regulator will ensure enforcement responses are proportionate to the seriousness of the conduct.
In line with the educative approach, an emphasis will be placed on less formal enforcement responses. This may include notifying the regulated entity of the compliance issue, and working cooperatively with them to identify an appropriate solution.
Formal enforcement action under Chapter 8 of the NGR Act will generally be reserved for serious contraventions, as appropriate. In the most serious of circumstances, the Regulator may also apply to a court for civil penalty orders, if it finds there has been a contravention to the provisions of the NGR Act.
For example, deliberate and/or repeated failure to comply with the NGR Act’s requirements may warrant formal enforcement action. In these circumstances, a collaborative approach would no longer be effective.