CRIMINAL LAW CONSOLIDATION (CHEATING AT GAMBLING) AMENDMENT BILL

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (17:55): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The risk of match-fixing and allied cheating at gambling is a serious issue. It is now notorious that internationally, links have been identified in professional sport between organised criminal groups and match-fixing, illegal betting, money laundering, and corruption. Allegations of improper behaviour involve not only players, but referees, coaches, officials, support staff and players' agents. It is also notorious that players and those engaged in sporting codes such as international cricket and national rugby and Australian Rules codes have been caught engaging in various methods of manipulation of games or gambling to gambling ends. For example, Pakistani cricketers' deliberate no-balling incidents are well-known.

The criminal groups which are exploiting professional sport overseas have a strong historical involvement in illegal gambling and gaming and this has been an important source of income for these groups. Sport has simply become a new market for these groups to exploit.

On 10 June 2011, Australian Sports Ministers signed, on behalf of their governments, Australia's first National Policy on Match-Fixing in Sport with the aim of protecting the integrity of Australian sport. Under the National Policy, all Australian governments agreed to pursue, through their Attorneys-General, a consistent approach to criminal offences and penalties, including legislation by relevant jurisdictions, in relation to match-fixing.

At the meeting of the then Standing Committee of Attorneys-General (SCAG) on 21 and 22 July 2011, Attorneys-General agreed to establish a Working Group to develop a proposal and timetable for a nationally consistent approach to criminal offences relating to match-fixing. At the Standing Council of Law and Justice (SCLJ) meeting on 18 November 2011, Attorneys-General supported the development of consistent specific national match-fixing offences with a maximum penalty of 10 years imprisonment.

A suitable standard of offences and penalties needs to be established that would meet the standard required by the National Policy, that is, laws that reflect the seriousness of match-fixing offences and act as a deterrent.

The SCLJ Working Group on Match Fixing held a series of meetings designed to develop nationally consistent guidelines for the development of match fixing offences in each Australian jurisdiction.

In the meantime, the New South Wales Law Reform Commission had been given a reference on 'Cheating at Gambling' and had undertaken considerable research and analysis in this area. The Commission reported on the subject in Report 130 in August 2011.

Existing legislative arrangements vary across States and Territories. 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. These are detailed below. However, it was also acknowledged that there may be some gaps in the coverage required, in particular to achieve a consistent national approach to the criminal offences relating to match-fixing.

The SCLJ Working Party on match-fixing in sport developed a set of descriptions of behaviours that should form the basis of nationally consistent criminal legislation. The descriptors were generally agreed by Attorneys-General at the SCLJ meeting on 18 November 2011.

Match-fixing behaviour 1: 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 under performance;

withdrawal (tanking*);

an official's 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.

*Note: 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.

Match-fixing behaviour 2: A person provides or uses insider information relating to a sporting event for the purposes 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.

Match-fixing behaviour 3: A person accepts a benefit for the purposes of fixing or influencing an outcome of a sporting event or contingency whether or not that action occurs.

Match-fixing behaviour 4: 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.

Match-fixing behaviour 5: A person such as a betting agency or bookmaker accepts 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.

Match-fixing behaviour 6: 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.

So far as the last is concerned, criminal law policy dictates that there should be a positive act of concealment rather than merely a failure to report.

A survey of jurisdictional arrangements found:

Through existing Crimes Acts and Gambling/Wagering Regulation Acts, every jurisdiction has legislation that addresses most of the elements of match-fixing behaviour 1 (match-fixing conduct).

Match-fixing behaviour 2 (misuse of inside information) in its narrower form (that is, knowledge of a fix) is largely addressed by applicable existing legislation in most jurisdictions.

The majority of jurisdictions, including South Australia, have provisions within their respective Crimes Acts relating to provision of secret commissions/bribes that address many of the scenarios anticipated in match-fixing behaviours 3 (acceptance of a benefit) and 4 (offer of a benefit). The coverage of such provisions is likely to depend upon the issue of whether a principal-agent relationship can be established between the parties seeking to fix an outcome.

The Northern Territory Totaliser Licensing and Regulations Act (and a number of other NT Acts), and the Unlawful Gambling Acts in NSW and the ACT would cover most, if not all, scenarios anticipated in match-fixing behaviour 5 (betting agency accepts a bet knowing the outcome is fixed). The general fraud offence under section 408C of the Criminal Code in Queensland would also cover this behaviour. In situations where the betting agency is aware of the fix because they are part of the scheme, Victoria believes the general offence of conspiracy to obtain a financial advantage by deception may cover this behaviour. South Australian general fraud provisions and conspiracy to defraud would cover these situations.

Match-fixing behaviour 6 (concealing match-fixing conduct) is covered in most instances in the ACT under bribery and conspiracy to defraud offences, and extensions of criminal responsibility such as incitement and complicity. Attempted fraud offences under Queensland's Criminal Code would also cover this behaviour. No other jurisdiction would seem to directly address this behaviour within any applicable existing legislation, however some jurisdictions are of the view that it would fall within match-fixing behaviour 4 (offer of a benefit for the purposes of a fix).

The current range of penalties varies across the jurisdictions, with different offences ranging from a fine, to a maximum of 10 years imprisonment depending on the jurisdiction and the offence.

The New South Wales Law Reform Commission reported and included in its Final Report a draft Bill. The draft Bill covers the agreed match fixing behaviours.

The national Working Group developed a set of national drafting instructions. The New South Wales Draft Bill has been used as a template to implement the national agreement.

Despite the coverage by the criminal law described above, the Working Party recommended the enactment of specific legislation. Specific legislation is likely to have a greater impact on preventing and dealing with match-fixing by:

providing clear signals to the public as to the criminal aspects of match-fixing behaviour;

clearly defining the reach (on the one hand) and the limits (on the other hand) of the behaviour determined to be criminal;

enabling law enforcement agencies and the courts to more effectively deal with match-fixing behaviour through a clear set of offences; and

demonstrating a commitment by governments to addressing the issue of match-fixing.

The Bill proposes a range of offences directed at the determined match-fixing behaviour and modelled on the New South Wales Bill. These are engaging in conduct that corrupts a betting outcome, facilitating the corruption of a betting outcome, concealing the corruption of a betting outcome, and using corrupt conduct information or inside information for betting purposes. Generally, the maximum penalties involved are set at the 10 year level and, again, generally, subjective fault elements of knowledge, recklessness and intention must be proven for such serious offences.

It should not occasion alarm that the definition of 'corrupts a betting outcome' requires proof to the satisfaction of a jury that the conduct 'is contrary to the standards of integrity that a reasonable person would expect of persons in a position to affect the outcome of any type of betting on an event'. Where an offence or offences covers a potentially broad range of conduct that is inherently morally ambiguous, it is not uncommon to include this kind of evaluative element to ensure that those who technically break the letter of the law are not ensnared by a net designed to catch those who are much more seriously involved. Examples that show this are the fault elements of 'dishonestly' in theft and fraud offences, 'improperly' in public corruption offences, 'corruptly' at common law, 'criminal negligence' and 'offensive behaviour'. These evaluative elements function to winnow the wheat from the chaff.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Criminal Law Consolidation Act 1935

4—Insertion of Part 5B

A new Part is being added to the Act.

Part 5B—Cheating at gambling

144G—Interpretation

This provision sets out the meaning of various terms used in the proposed new Part.

The offences in the proposed new Part apply where a person engages in various types of conduct, knowing or being reckless as to whether that conduct corrupts a betting outcome of an event. This clause defines what is meant by engaging in conduct that corrupts the betting outcome of an event. This refers to conduct that affects or would be likely to affect the outcome of betting on an event, and that conduct does not meet the standards of integrity that a reasonable person would expect of a person in that position.

Betting is defined to include placing, accepting or withdrawing a bet and a reference to betting on a event also includes betting on any contingencies that are connected to the event. An event is any event, whether or not it takes place in this State, on which it is lawful to bet under an Australian law.

The offences set out in the proposed Part require that the person acted with the intention of obtaining a financial advantage or causing a financial disadvantage. Obtaining a financial advantage is defined to extend to gaining a financial advantage for oneself or for another person, retaining a financial advantage, or inducing someone else to do something that results in a financial advantage for oneself or another person. Causing a financial disadvantage includes causing a financial disadvantage to another person or inducing a third person to do something that results in another person suffering a financial disadvantage. It is not necessary to prove that a financial advantage was actually obtained or that a financial disadvantage was actually caused.

144H—Engaging in conduct that corrupts betting outcome of event

This provision makes it an offence to engage in conduct that corrupts a betting outcome of an event. It is necessary that the defendant knew or was reckless as to whether the conduct corrupts a betting outcome of the event and that the person intended to obtain a financial advantage or cause a financial disadvantage in connection with any betting on the event.

144I—Facilitating conduct that corrupts betting outcome of event

This provision contains three offences. Firstly, it is an offence to offer to engage in conduct that corrupts a betting outcome of an event. Secondly, it is an offence to encourage another person to engage in conduct that corrupts a betting outcome of an event and thirdly, it is an offence to enter into agreement that corrupts a betting outcome of an event. In each case the person must know or be reckless as to whether the conduct corrupts the betting outcome and the person must also intend to obtain a financial advantage or cause a financial disadvantage in connection with any betting on the event.

144J—Concealing conduct or agreement

This clause provides that it is an offence for a person to encourage another person to conceal from a relevant authority either conduct, or an agreement, that corrupts a betting outcome of an event. The person must know or be reckless as to whether the conduct or agreement corrupts a betting outcome and must also intend to obtain a financial advantage or cause a financial disadvantage in connection with any betting on the event. A relevant authority is defined to mean the police or a body that has the official function of controlling, regulating or supervising an event or betting on the event. An authority can also be of a kind prescribed by regulation.

144K—Use of corrupt conduct information or inside information for betting purposes

This provision makes it an offence for a person who possesses either 'corrupt conduct information' or 'inside information' (knowing or being reckless as to whether the information is corrupt conduct information or inside information) and that person either bets on the event, encourages another person to bet on the event in a particular way or communicates the information to another person knowing they are likely to bet on the event. The corrupt conduct information or the inside information must be relevant to the bet. Corrupt conduct information is defined to mean information about conduct that corrupts a betting outcome. Inside information is defined to be information that is not generally available, but if it were, would be likely to influence persons who commonly bet on the event in deciding on whether or not to bet or to make any other betting decision. It is not necessary to prove that the person encouraged to bet or to whom the information was communicated, actually bet on the event concerned. Communicating the information also includes causing that information to be communicated.

Debate adjourned on motion of Hon. J.M.A. Lensink.