CRIMINAL LAW CONSOLIDATION (CHEATING AT GAMBLING) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 29 November 2012.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (12:14): I rise to speak on the Criminal Law Consolidation (Cheating at Gambling) Amendment Bill 2012. In doing so, I should disclose to the house that I am a former member of the Totalizator Agency Board—which would be well known to you, Mr Speaker, of course, an avid client and chair of their audit committee—a former member of the South Australian Jockey Club and a current member, proudly, of the Kangaroo Island Racing Club.

I also note that in recent times the Australian Crime Commission has tabled its report in respect of apparent rampant abuse of drug taking—particularly performance-enhancing drugs—in elite sport in Australia. In that report, it is apparent that there is also a significant level of corruption in the wagering and gambling side of the industry in sports betting. Clearly, at a national level, there has been an identification of significant concern, but this bill and its introduction predates this recent revelation and the report from the Australian Crime Commission.

According to the government, this bill has been brought before us for consideration as a result of a Standing Council on Law and Justice meeting (probably a number of meetings) which had decided that it was important to develop nationally-consistent match-fixing offences with a maximum penalty of 10 years. Indeed, the Attorney-General said in his second reading explanation:

All States and Territories agreed that their framework of existing offences, both at common law and in legislation, deal with the agreed match-fixing behaviours in almost all circumstances.

There have been some concerns particularly raised by the Law Society in respect of this bill. I think it is fair to say that, in summary, their position is that the introduction of the four new areas of offence that are proposed in this legislation, which I will refer to shortly, are in fact covered by current law. They point out that there is an attempt to upgrade some provisions in the proposed section 144(1), which they say 'extends more widely than is appropriate for criminal law', in that it makes offering to engage in one of the—

The SPEAKER: The member for Bragg will cease emitting harp sounds.

Ms CHAPMAN: Thank you—offences above a major indictable offence, even though no harm has actually resulted. That is one aspect that is not covered in similar legislation in New South Wales. I will come to how that might be remedied during the course of this debate, but certainly we are happy to look at that, having been alerted to it by the Law Society.

I also point out that the New South Wales act contains a provision requiring a review after three years from the commencement of this part and, in particular, whether the policy objectives of the act remain valid and whether the terms of the part remain appropriate for securing those objectives. That is in the New South Wales Crimes Amendment (Cheating at Gambling) Act 2012. They are aspects that we will be asking the government to take into account, particularly the provision of a review after three years, or such other suitable time that may be considered, and we will be looking for there to be some modifications to incorporate those two issues.

I also note for the purposes of this debate that although the behaviours in question that are being sought to be outlawed arguably are covered in existing laws, the government still claims—and I assume this was also followed as a result of the SCLJ meetings—that the rationale upon which they are introducing a duplicate level of laws is to provide clarity for betting industries and persons involved in events subject to bets, ensuring that equivalent practices are treated the same in each state and providing a serious penalty for that behaviour. Personally, I do not see how this legislation actually advances that. Simple uniformity can be achieved in a number of ways and in itself does not necessarily produce a better outcome.

However, it seems as though the Attorney-General has fallen into line with the SCLJ decision. I am assuming that this postdated your contribution, Mr Speaker, to the SCLJs. I am a little surprised that the current Attorney-General has acquiesced so readily to this decision, given his apparent belief that it is important that South Australia retains some autonomy as a state and does not jump into bed with all of the other states just because they think it is a good idea.

Nevertheless, I will place on record the areas of behaviour that are purported to be necessary to contain. The SCLJ identified six match-fixing behaviours. The first was that a person intentionally fixes or influences the outcome of a sporting event or contingency for the purposes of causing a financial benefit for him or herself or for any other person or a financial detriment to any other person. Actions could include deliberate underperformance, withdrawal, an official deliberate misapplication of the rules of the contest, interference with the play or playing surfaces, or any other action or omission designed to influence the outcome of a game or contingency.

Apparently, actions where the intent is to gain tactical advantage—for example, a more advantageous draw or more advantageous draft picks—are not subject to any offences. I am sure there is some reason for that but, in any event, members would be aware of the most common of these—and that is, as best as I understand it, deliberate underperformance. Recently after the Australian Crime Commission report was tabled, one of our federal senators called for some embargo or ban or interim suspension of the capacity to bet on any sport as a result of the number of concerns that were raised. I think it is fair to say that in a circumstance where, for example, a football team is the subject of a betting opportunity in a football match, if the bet is that a certain team will win or lose, the theory goes that it is more difficult to fix a match outcome with 18 or 20—I am not even sure how many play in football any more—I think it is 18.

The SPEAKER: Correct.

Ms CHAPMAN: Correct. Thank you, Mr Speaker. It is more difficult to fix all 18 players than to be able to fix one or two players in relation to a single bet, not on the outcome of the match but of how many goals or points a player might kick, or whatever might be the particular unit of effort or achievement that is the subject of the bet. There is probably some merit in that. I think in examples that are given at an international cricket level, the units in betting opportunities are down to how many wickets will be taken by a certain bowler, how quickly they can do it, over what period of time and on what day they are going to get somebody out. I mean, the sub-units of betting opportunity in elite sports never cease to amaze me. To be able to identify a deliberate under-performance of one or two players in a cricket game, for example, to have the effect, ultimately, of the outcome of the match would, I think, be more difficult than specifically his or her under-performance.

Another area that members might be aware of, which came to my attention as chair of the audit committee of the TAB, was the withdrawal of bets, the opportunity, particularly in horse racing, to withdraw a bet if the betting capacity didn't exactly coincide with the jump of the horses. So, what was apparently available to those who follow these things and had some vested interest in it was that they could place a bet and if there was a delay of even a second after the horses had jumped then the proponent of the bet was in a position to press a button and cancel their bet in the event that their nominated horse jumped poorly or slowly, or whatever, to the extent that they were able to withdraw that commitment to that bet. This is the sort of behaviour which I think everyone agrees should not be tolerated in an environment where there are betting opportunities for one or more persons to act in a manner where they would be able to intentionally fix or influence the outcome of a particular event or a contingency aspect of it.

The second type of behaviour is where a person provides or uses insider information relating to a sporting event for the purpose of directly, or indirectly through a third party, placing a bet on a sporting event or contingency where he or she knows or is reckless as to the fact that the outcome of the sporting event or contingency has been fixed. Again, a common example of this, I am sure, would be the alleged state of health of a particular participant, whether it is a horse, a jockey or a player in an elite sport. That may well be a factor which, if that information were passed onto a third party, would enable them to introduce or proceed with or, indeed, withdraw from a particular betting situation. I think the house would agree that that behaviour should not be condoned.

The third type of behaviour is a person who accepts a benefit for the purpose of fixing or influencing an outcome of a sporting event or contingency, whether or not that action occurs. Members would be well aware of the circumstances of that. That is why jockeys on horses are not only not allowed to receive any payment, benefit or in kind for how they might ride or progress in their event, but they are prohibited from betting themselves, all for good reason in the rules that apply to this. To accept a benefit for the purpose of being complicit in some activity that would give someone some other advantage is clearly unacceptable.

I am not sure why a number of jockeys ever get on horses; it is a fairly dangerous activity. For those of us who are interested in racing, we should at least be appreciative of their risk-taking and the effort that they contribute. Just on Sunday last week, I attended a race meeting in the country where a young female apprentice jockey was thrown from the lead horse and hit a barrier upright. Fortunately, she was not seriously injured, although she was not able to continue riding for the day, but she was injured and did not go on to win the race which, I think, had that not happened, she clearly would have.

However, it is a dangerous enough occupation without being in a circumstance where any one of the riders might have placed themselves in a position where they were trying to hold back a horse or interfere with another horse in such an activity. This just adds to the danger and is unacceptable behaviour toward those who would be participating in a fairly dangerous activity. So, for the safety of riders and our horses in those circumstances, it is important that we do not add to the problems. In addition to that, it is quite unacceptable that they even be exposed to the temptation to accept a benefit for the purpose of fixing or influencing an outcome.

The fourth match fixing behaviour which the committee looked at was where a person offers a benefit for the purposes of fixing or influencing an outcome of a sporting event or contingency, whether or not that action occurs. This obviously covers the person who might approach the jockey to say they would like them to do this or that, hold back, slow down on the turn or whatever the arrangement is. It is obviously designed to catch both the person who offers the opportunity and the person who will carry it out.

The fifth area of match fixing behaviour is a person, such as a betting agency or bookmaker, accepting a bet on a sporting event or contingency where he or she knows that the outcome of the sporting event or contingency has been fixed. Personally, I think this is going to be very hard to detect.

I think that, obviously, if there is some trail of emails or some capacity to be able to identify the conveying of information to the betting agency or the person who is in charge of that or the bookmaker, then that may not be too difficult, but I think that most would accept that even the most hapless of criminals is not likely to leave an email trail when it comes to fixing some race or sports event. In any event, I think that members would accept that it is reasonable that the agents, in respect of this opportunity to place a bet and receive a benefit, are a key part of the transaction and, therefore, there has to be some culpability on their part if they fail to act or, in this case, accept a bet in full knowledge that that situation is about to prevail.

The sixth area of match fixing behaviour that the committee considered was where a person offers another person a benefit for the purposes of fixing or influencing an outcome of an event or contingency and encourages that other person not to report the approach to the sporting organisation, event or competition organiser or the police. That is obviously in a circumstance where it comes to the attention of the person and then they try to persuade that person to keep it secret and not advise the lawful authorities.

I suppose the encouragement to keep quiet and not to report does extend outside the principal offence of participating in the match-fixing behaviour itself because obviously the failure to report could be an offence when, in fact, the match-fixing itself may not have ultimately occurred. I think there is a danger of capturing those who might have acted with certain intent but in fact ultimately caused no harm because the actual event may not have occurred, but they may still be captured.

The Independent Gambling Authority in South Australia oversees the statutory obligations of operators offering wagering or bets. I do not know how much they were consulted in the development of this bill. They obviously provide an annual report to this parliament, and I note that the 2011-12 annual report states that South Australia at that stage had 27 licensed bookmakers, 344 TAB agencies and 37 active racing clubs. Also, at 30 June 2012, there were 26 interstate betting operators providing services in South Australia and, during that year of reporting, they received 10 complaints relating to wagering; two of those complaints were in relation to telephone bets, one of which was resolved in favour of the patron, and no other breaches were identified.

It seems that on the information they have at least reported to us that there is not any rampant behaviour in South Australia that would need to attract the attention of this legislation, but it may be that they had provided separate advice to the government in the development of this bill as to need. If that were the case, though, I would have expected the Attorney-General to have presented some of that detail to us in the second reading speech. I am hoping that the absence of any mention means that it is not rampant in South Australia but, again, it comes back to this question then of whether it is really necessary for us to slavishly adhere to the SCLJ's proposal.

I am not sure what happens at these meetings. I do not know whether somebody goes along to them and puts on the agenda that this would be a good idea, and they all go off and take some papers back to their departments and have a chat about them and then think, 'Oh, well, it's not such a bad idea. Perhaps we'll tick off on that,' and they go back three or six months later and think, 'Okay, well, does everyone agree around the table?' 'Oh, yes, no problem, we'll sign off.'

I am not quite sure where these brainchild thought bubbles come from but, in any event, there seems to be in the time I have been here a flurry of these meetings where they go off and think. 'Wouldn't it be marvellous if we all had it all the same? If we had this model legislation or this harmony, this consistency, this sort of one-size-fits-all, this would produce a beautiful environment of peace and goodwill and everything would be beautiful.'

I have seen a lot of this legislation go through this parliament in the last 10 years, and I am not convinced that it has made any great improvement or a scrap of difference to a lot of the implementation or curbing of behaviour, criminal or otherwise. However, I note that on Saturday morning minister Koutsantonis attended a transport forum and provided an opening address.

The SPEAKER: The Minister for Transport.

Ms CHAPMAN: The Minister for Transport, yes. Minister Koutsantonis, in his role as Minister for Transport, attended the transport forum and was then available to answer questions. Some issues were raised in respect to the national regulations for heavy vehicle transport. Not surprisingly, industry representatives and truck drivers raised some potential difficulties with the nationalising of this type of regulation. Indeed, present at the SARTA conference was the new national commissioner who, from memory, is to be based—once everyone has passed legislation—in South Australia.

In any event, questions were raised about this, and the minister was quite quick to point out that—and I will paraphrase him, but I think I give a respectful representation of what he said—'if these things don't work then we can just bring it back. We can just get out of the system; we can go back to using our own structure. We can go it alone again.' I note that the minister has not been in this particular position for very long, but he has been in cabinet for quite some time. I would expect him to realise that it is not all that easy to unscramble the eggs when you have gone into a national scheme, especially when relevant staff have been transferred out of those positions—the people with the expertise—and the revenue arrangements that flow from having a national fee and payments back. These are all things that are significantly modified when we go into a national scheme.

Just the simple stroke of a pen and thinking, 'Well, we'll just go back to our own system' is not all that easy. In some ways, from a federal perspective, at the national level, they do not want it to be easy. I think there is a rather limited understanding of how difficult that exercise can be, so I am a little cautious when we just simply think, 'Well, let's all be happy and have it all the same.' Quite often what happens is that, having agreed that there be some general approach to a particular model, people then want to change it. So what we end up with, in fact, is an attempt to all have the same but then there are dissenting views about certain aspects and then different rules apply.

Even here in this bill, New South Wales, Queensland, I think, and the ACT have already gone down this road. New South Wales passed its legislation last year to cover this initiative, yet it made a decision that it would not have the extension as wide as set out in our proposed section 144(1). New South Wales did not go down that track. I do not know why our Attorney-General decided he would tack that on. I do not know why he ignored what New South Wales had done in respect of a three-year review.

It seems that what is common now—and I am not so sure that it was in your day, Mr Speaker—is that they all find things that are a bit different to justify their own stamp of autonomy on it. I do not know what the answer is, but it just seems to me wholly inconsistent with the principal that national consistency is going to produce a good outcome. They all seem to be hell-bent on having their own stamp of difference on it. Leon, you are supposed to be down here!

The Hon. L.W.K. Bignell: No, I am not the lead speaker, but thanks for trying to tell me what I'm meant to be doing.

Ms CHAPMAN: The bill deals with the offence of corrupt betting practice in four particular ways. One is to have under section 144H, 'engaging in conduct that corrupts the betting outcome of an event'. This includes conduct that knowingly or recklessly corrupts the betting outcome of the event and to cause or obtain a financial benefit for themselves or others. It is all self-evident.

The second under section 144I is the offence of making an offer encouraging a person to engage in or entering into an agreement that facilitates corrupt betting conduct. Under section 144J is the proposed offence of encouraging the concealment of an agreement to corrupt a betting outcome or the concealment of a corrupt betting outcome.

Under section 144K is the proposed offence of possessing corrupt conduct information or insider information and using that information to corrupt a betting outcome, either by placing a bet themselves, encouraging another to place a bet, or communicating relevant information to a person whom the supplier of information ought to know or was reckless to the fact that the person was likely to bet on the event.

Consistent with the agreement, all the offences carry a maximum penalty of 10 years imprisonment, except for the offence of using insider information, which has a two-year maximum penalty. Members would be aware that the existing South Australian laws, whilst they are found in different pieces of legislation, are quite comprehensive. Pursuant to our Criminal Law Consolidation Act 1935, under offences for dishonesty, section 139 provides for the offence of deception, which carries a penalty ranging from 10 to 15 years, depending on whether the offence is aggravated. Under the Lottery and Gaming Act 1936, section 49 also has an offence of obtaining money, etc., by cheating with penalties of up to $10,000 or imprisonment for two years.

Elements of the offence include winning money or a valuable thing by fraud or other unlawful means: in playing with cards, dice, tables or other games; in bearing a part in the stakes, wages or adventures, or betting on the sides of the hands of them that do play; in betting on the event of any game, sport, pastime or exercise. That just about catches everything, but in any event, there are clear penalties there under section 49.

Under our Gaming Machines Act 1992, there is the offence of bribery in section 79. There are related offences in our Casino Act 1997, Authorised Betting Operations Act 2000, Independent Gambling Authority Act 1995, Racing (Proprietary Business Licensing) Act 2000 and the State Lotteries Act 1966 that oversees those related activities.

So, there is a compendium of legislation that deals with the betting activity when someone has acted in some manner that is corrupt or unlawful. It does raise the question of how we should add to that. I think it is fair to say that the one aspect which perhaps has motivated the government to have some clarity or universal application of the law is their intent to sell the Lotteries in South Australia. It may well be that they have decided that, to clear the decks, make it easier for the sale business case or whatever, they need to tidy this up.

It may enhance the value; I do not know but, whilst there has not been any demonstrable need, some identified inadequate provision under our current legislation, I can only think that they want to be able to provide this on their prospectus for sale (whatever they call that, in relation to the sale of a business) to pump up or beef up the price that they might receive from the lotteries. It will be a sad day when it is sold, given it has had a very important role in the history of South Australia.

I think there was a need to establish the Totalisator Agency Board and the Lotteries Commission, the latter of which was to provide a revenue stream to assist hospitals in South Australia, I think under the late Hugh Hudson, who was a minister for health in South Australia in a former Labor parliament. From memory, his department (in those days the health commission) was to be the beneficiary of proceeds from the lotteries agency.

In any event, there was a significant need in South Australia, and probably across the country, for a regulated agency structure to deal with betting, wagering and gambling generally, because there was such an opportunity for corrupt behaviour. Some would say that wherever there is property and money there is corruption. Even I am old enough to remember the days of SP bookmakers when corrupt activity was able to occur without scrutiny.

There was certainly a significant movement by the 1960s to have a regulated industry in respect of the supervision of wagering and gambling, and I think that has been good for South Australia. I just want to make it clear that the opposition's agreement to the passage of this bill is not on the basis that we see in any way that those structures have failed us as a state, and the legislation under which it sits, in ensuring that we have a well supervised industry in respect of the gaming and wagering world.

However, I do make this point: it is the opposition's view that there is a level of serious and organised crime in this state, there is a level of corruption, and there is a level of dishonest conduct, which needs to be dealt with in the most severe way. Hence, for some years now, we have been asking the government to progress the ICAC, an independent commission against corruption.

We are looking forward to news of the government's appointment of a commissioner to follow on from the legislation which has been passed in this house, which was finally introduced by the government and which we have been pleased to support. Certainly from our side—and I do not want to traverse that debate—we are getting the skinny version—

The SPEAKER: That's happening today.

Ms CHAPMAN: I know; I understand. I wasn't going to preannounce it. Was it an hour ago?

The SPEAKER: Yes.

Ms CHAPMAN: Yes, I can say it. Right; I will not traverse all the debate, but we certainly think we are getting the skinny version, the cheap option, and we will be looking forward to working—

The SPEAKER: Member for Bragg, be seated for a minute. I have been listening carefully and I think there is a risk that you might be testing the limits of relevance. I draw your attention to standing orders 127 and 128 about digression and irrelevance. Member for Bragg.

Ms CHAPMAN: This whole bill is about corrupt behaviour. When this state appoints the new ICAC Commissioner, we will have a place of sanctuary in which good South Australians will be able to refer matters that need to be dealt with. This piece of legislation may well deal with criminal offences for corrupt behaviour and, although we think it is pretty much covered in any event by current legislation, we still need to consider the level of systematic corruption that apparently exists as disclosed in the Australian Crime Commission report.

We in South Australia cannot think that we are in some way removed from this. We are going to need the resources of the ICAC Commissioner, and his or her work will be valuable. Even though this legislation pre-dates the tabling of the final report of the Australian Crime Commission, that report clearly says that this situation is rife. It is a very serious situation. South Australia does not have a little chapter in there that says everything is rosy in South Australia.

At the national level, we are part of a federation which operates at the elite sport level in every sporting code that I can think of. We may not be all that high up in rugby but South Australia is up there in participation in all of the major elite sports. Some would say we are the leader in Australian Rules football. Certainly, in racing, we have had a horse from South Australia that has won three Melbourne cups. We have a proud history of being involved in elite sport in South Australia.

The Hon. L.W.K. Bignell: The horse never came to South Australia.

Ms CHAPMAN: Don't be rude.

The Hon. L.W.K. Bignell: I'm not being rude. The owner lived in South Australia; the horse never came to South Australia.

Ms CHAPMAN: I understand that. Actually, he did come for a visit. If you go to Port Lincoln, you might find that out.

The Hon. L.W.K. Bignell: There is a statue there.

Ms CHAPMAN: The statue is there now, indeed, it is. I saw it again the other day, but—

The SPEAKER: Member for Bragg.

Ms CHAPMAN: I won't respond to those puerile interjections.

The SPEAKER: I call the minister to order. It was a great surprise to me, recently, to discover that there is a standing order against interrupting a member who is speaking (standing order 131) and a standing order that does not allow members not speaking to make a noise or disturbance or to converse aloud (standing order 142). It took me 23 years to discover those. I draw the minister's attention to them. Member for Bragg.

Ms CHAPMAN: In any event, South Australia has a proud history of participation in elite sport. We have had magnificent athletes who have been born and bred in this state and who have done us proud. We have had people who visited here who have been very much involved in behaviour which has now been disclosed as totally unconscionable. Lance Armstrong's current predicament ought to remind us that even those of the elite sports world whom we think of as being clean and pure and who have been great icons have fallen into disgrace in some circumstances.

So, be under no illusion: South Australia is either the producer of or has provided the forum for elite athletes and elite competition. We are proud of it but we have to be honest about the fact that we cannot be excluded from what the Australian Crime Commission has exposed, that is, systematic corruption in the betting and wagering associated with sports particularly. That is so important because we also need to consider the drug taking, particularly performance-enhancing drugs, for the next generation of athletes. I seek leave to continue my remarks.

Leave granted; debate adjourned.

[Sitting suspended from 13:00 to 14:00]