Interactive Gambling (Sporting Events and Excluded Wagering Services) Determination 2017

The core concept is the recharacterisation of a multi-day sporting event into a series of discrete one-day sporting events. The Determination creates three new defined terms: “multiple-day cricket match”, “multiple-day cycling race”, and “multiple-day golf tournament”. A multiple-day cricket match is defined as a cricket match that occurs on more than one day, in the local time where the match occurs. The same temporal logic applies to cycling races and golf tournaments. The “day of play” (for cricket and golf) and “day of racing” (for cycling) are defined as the part, or all of the parts, of the event that occur on a particular day, again measured in local time at the event location. This means that if a day’s play is interrupted by weather, the day of play still covers whatever actual play occurs on that calendar day, and ends once that day’s scheduled play is concluded (whether or not completed).

The instrument operates by reference to two key provisions of the Act: subsection 10A(2) and subsection 10A(3). Subsection 10A(2) allows the Minister to determine that something is a sporting event; subsection 10A(3) allows the Minister to determine that something is taken not to be a sporting event. The Determination uses both concurrently for the same multi-day events: the whole event is not a sporting event, but each day is. The explanatory note confirms that because of sections 5 and 6, each day of play or racing becomes a sporting event, and the multi-day event becomes a series of sporting events. This classification matters because the excluded wagering service exemption in section 8A of the Act applies only to betting on sporting events (or series of sporting events). If the whole event were a single sporting event, betting on its overall outcome would be betting on a sporting event. By deeming the whole event not to be a sporting event, the Determination removes that characterisation and instead treats each day as an independent event.

The second major concept is the “condition” imposed under subsection 8A(4) of the Act. A wagering service that meets the description in subsection 8A(3) (relates to betting on sporting events, is not an in-play service) will only be an excluded wagering service if conditions determined under subsection 8A(4) are satisfied. Section 7 of the Determination creates conditions that effectively remove the possibility of “in-play” betting on these multi-day events during any day’s play. The condition prohibits betting on either the outcome of the whole multi-day event or on a contingency that may happen in the course of that event - or of the individual day - during the window that starts at the beginning of the day’s play and ends at its conclusion. This captures both bets on the event winner and bets on micro-events such as runs scored, wickets taken, or stage positions. The condition is not a blanket prohibition on all betting; it is time-restricted to the period of active play on each day.

Understanding the interplay between sections 5, 6, and 7 is critical. Section 5 and 6 determine the characterisation of the event and its days. Section 7 then attaches a condition to the use of that characterisation for the purposes of obtaining the excluded wagering service exemption. A provider cannot rely on the fact that a day is a sporting event to offer in-play betting on that day; the condition overrides that. The condition also covers betting on the whole event outcome during the day, even though the whole event is not a sporting event. This creates a layered regulatory scheme.

The Determination directly affects all entities that provide, or seek to provide, interactive wagering services in or into Australia, insofar as those services involve betting on cricket Test matches, multi-day cycling tours (such as the Tour de France), or multi-day golf tournaments (such as The Open Championship or the US Open). The primary targets are licensed wagering operators, including both domestic Australian bookmakers and offshore operators that accept wagers from Australian residents. The conditions in section 7 apply to any service mentioned in subsection 8A(3) of the Act, which covers any service that relates to betting on sporting events and is not already an in-play betting service. Therefore, any operator wanting to rely on the excluded wagering service exemption to avoid the prohibition on offering a prohibited interactive gambling service must comply with these conditions.

The Determination also affects the business models of operators that currently offer or plan to offer in-play betting on these categories of events. Because the condition prohibits accepting bets during the period of play on each day, operators must either cease offering any in-play markets on those events altogether, or restrict betting windows to periods outside the daily play period. For example, a bookmaker could offer a market on the overall winner of a five-day Test match before the first ball on day one, but must close that market at the start of play on day one and cannot reopen it until after the conclusion of day one’s play. The same applies for each subsequent day. This imposes operational complexity and may reduce the liquidity and attractiveness of such markets.

Punters are indirectly affected because the range of betting options available during play on these events is reduced. A punter who wishes to place a bet after seeing the first hour of play on day one of a Test match cannot do so until the day’s play concludes. This may push some punters to unlicensed offshore operators that disregard the Determination, or to substitute toward other betting products that allow in-play wagering on single-day events.

The Determination also affects sports governing bodies and event organisers for cricket, cycling, and golf. These bodies may have commercial arrangements with wagering operators that include in-play betting rights. The Determination restricts the ability to monetise those rights for events that span multiple days. That said, individual days are still classified as sporting events, so betting on the outcome of a single day’s play (e.g., who will win the day’s stage in a cycling race) is permitted, provided the bets are placed before the day’s play begins or after it ends. The real impact is on the ability to offer real-time markets during the action.

The Determination does not itself impose a duty enforceable by a private right of action; rather, it sets conditions that, if not satisfied, cause a wagering service to lose its exclusion from the prohibition on providing a prohibited interactive gambling service. The practical duty on wagering operators is to ensure that, for any service that relates to betting on a multiple-day cricket match, multiple-day cycling race, or multiple-day golf tournament, the operator does not accept bets on the outcome of the whole event or on any contingency within that event during the period that begins at the start of any day of play (or day of racing) and ends at the conclusion of that day’s play. This duty applies separately to each day of the event.

The operator has the right to offer betting on the outcome of the whole multi-day event prior to the start of the first day’s play, and between the conclusion of one day’s play and the start of the next day’s play. Similarly, the operator may offer betting on the outcome of an individual day (which is now a sporting event) before that day’s play begins and after it ends. However, the operator cannot offer a market that is open during the day for any outcome or contingency of that day or of the whole event.

The rights and duties are asymmetrical. The operator must implement technical systems to control when betting markets are open and closed, based on the local time at the event location. The operator must also have accurate information about the scheduled start and conclusion times for each day’s play, and must be able to handle unexpected delays or early finishes. The Determination gives no specific guidance on how to determine when a day of play “concludes” if play is abandoned early. The definition says “the part, or all of the parts, of the match that occur on a particular day”; it does not specify a fixed end time. The condition uses “conclusion of that day of play”, which most likely means the time at which play ends on that day, whether scheduled or because of an interruption.

Additionally, the Determination confers on the Minister the power (already existing under the Act) to make such determinations, but it does not grant any new rights to operators, consumers, or sports bodies. It does not create a right to offer in-play betting on these events; it only delineates when the excluded wagering service exemption is available.

The Determination itself does not create any penalties. All enforcement consequences flow from the primary Act. Section 8A of the Interactive Gambling Act 2001 prohibits a person from providing a prohibited interactive gambling service. A service that falls within subsection 8A(3) is an excluded wagering service only if it satisfies the conditions determined under subsection 8A(4). If an operator offers a wagering service that relates to betting on a multi-day cricket match, cycling race, or golf tournament, and accepts bets during a day of play in contravention of the conditions in section 7, then that service ceases to be an excluded wagering service. It may therefore become a prohibited interactive gambling service (subject to any other applicable exclusions). Providing a prohibited interactive gambling service is an offence under section 8A(1) of the Act, carrying civil penalties.

Under the IGA, the Australian Communications and Media Authority (ACMA) is the primary regulator. The ACMA can issue infringement notices, apply to the Federal Court for civil penalties, and seek injunctions to stop the provision of non-compliant services. The Act also provides for the ACMA to require internet service providers to block access to prescribed offshore gambling websites. Therefore, an operator that breaches the conditions in section 7 may face ACMA investigation, civil penalty proceedings, and potentially a block on its website.

The maximum civil penalty under the IGA is currently (as at the date of the Act) 5,000 penalty units for a body corporate for each contravention, and 1,000 penalty units for an individual. With current penalty unit values, that amounts to significant sums. However, these figures are not stated in the Determination and vary over time. The key point is that the Determination converts what might otherwise be a lawful wagering service into an unlawful one, thereby exposing the operator to the full enforcement machinery of the Act.

Operators should also note that the ACMA has published guidelines and compliance reports that often highlight issues with in-play betting. The Determination gives the ACMA a clear legal basis to pursue operators that accept bets during any day of play on these multi-day events, even if the bets are on the overall event outcome rather than on a micro-event during that day.

The Determination is made under the Interactive Gambling Act 2001 and is part of the Commonwealth regulatory framework for interactive gambling. It does not operate in isolation. The IGA itself preserves the operation of state and territory gambling laws to a significant degree. Sections 8E and 8F of the Act provide that the IGA is not intended to exclude or limit the operation of state or territory laws that are capable of operating concurrently. Therefore, a wagering operator must also comply with any applicable state or territory licensing requirements and prohibitions on in-play betting. Some states have their own restrictions on in-play wagering that may be more or less restrictive than the Determination.

The Determination also interacts with the general definition of “sporting event” in the Act. The Act’s definition in section 4 includes any event or contingency in which a number of persons compete. The Determination uses the Minister’s power under section 10A to narrow and expand that definition for specific purposes. As a result, for the purposes of subsection 10A(2) (determining something to be a sporting event) and subsection 10A(3) (determining something not to be a sporting event), the Determination creates a special regime for multi-day cricket, cycling, and golf. For other purposes of the Act, the default definition continues to apply. This means that the whole multi-day event might still be a sporting event for other provisions of the Act, such as the offence provision in section 15 (which deals with the use of prohibited gambling information for gambling purposes). However, the Determination explicitly states it is made for the purposes of the specified subsections, so its effect is confined to those provisions.

The Determination also may interact with the Broadcasting Services Act 1992 and the Interactive Gambling (Interactive Gaming Services) Determination 2001, but those interactions are not specified in the source. Practitioners should note that the Determination’s treatment of days as separate sporting events could affect advertising restrictions that apply to gambling advertisements during sporting events. If each day is a separate sporting event, then advertising prohibitions around those events must be assessed day by day.

There is no direct interaction with the Criminal Code, but the civil penalty regime under the IGA incorporates standard rules of criminal procedure in some respects.

The instrument as provided is dated 11 December 2017 and was registered on that date or shortly after. It commenced the day after registration. There is no indication in the source of any amendments having been made to the Determination since its commencement. The Determination appears in the Federal Register of Legislation as a standalone instrument, and the version provided is the original and only version. Given that the Determination was made in 2017 and the source shows no amending instruments, it is reasonable to conclude that the text has not been altered during the intervening years. However, users of the instrument should check the current Federal Register of Legislation for any subsequent amendments, as the source provided may not reflect changes made after the date of this response. The Determination’s structure is simple, containing only three parts and seven sections, so any amendment would likely be obvious.

Notably, the Determination does not include a provision for automatic review or sunset. It remains in force unless repealed or amended by a later instrument or by operation of the Acts and Instruments (Framework Reform) Act 2009. The Interactive Gambling Act 2001 has been amended multiple times since 2017 (including the Interactive Gambling Amendment Act 2017, which was passed just before this Determination was made), but those amendments did not directly touch the Determination’s text.

The source material does not reference any litigation specifically concerning this Determination. There have been several cases in the Federal Court concerning the Interactive Gambling Act 2001 more broadly, notably ACMA v Bet365 and other proceedings against offshore wagering providers, but those cases have generally addressed the interpretation of “in-play betting service” and “excluded wagering service” at the primary Act level, not the detailed operation of this Determination. The Determination is a subordinate instrument, and any challenge to its validity would likely argue that it exceeds the power delegated under section 10A or subsection 8A(4). To date, no such challenge has been widely reported.

Given the Determination’s narrow scope - only three sports and a clearly defined temporal restriction - the likelihood of a direct challenge is low. Litigation risk arises more from enforcement action by the ACMA against operators that breach the conditions. If an operator faces a penalty proceeding, it may argue that the Determination is invalid or that the condition does not apply because the operator’s activity did not fall within the definition. For example, an operator might argue that a particular cricket match is not a “multiple-day cricket match” because it does not span more than one day of actual play (e.g., rain-shortened). That argument is unlikely to succeed given the plain definition, but it is a theoretical avenue.

Practitioners should monitor the ACMA’s enforcement actions. The ACMA has issued several warnings and taken action against operators for accepting in-play bets on Australian sports. While those actions typically focus on single-day events, the same principles apply to multi-day events under this Determination.

Several traps exist for the unwary. First, the condition in section 7 applies to betting on the outcome of the whole multi-day event, not just on the day’s play. An operator might assume that because only a day of play is treated as a sporting event, betting on the overall event winner is not caught. But the condition expressly prohibits betting on the outcome of the “multiple-day cricket match” (the whole match) during the defined periods. The operator must close the overall-outcome market during each day’s play, even though the whole event is not a sporting event. Failing to do so would breach the condition.

Second, the period for the condition begins at the “start of any day of play”. There is no grace period. If play is scheduled to start at 10:00 AM local time, the operator must ensure that no bets are accepted from that moment. If the operator’s systems use a different time zone or allow a few seconds delay, there is risk. The operator needs accurate, real-time information about the start of play, including any changes due to early pitch inspections or ground conditions.

Third, the definition of “day of play” uses the local time at the event location. For a cricket match in England, the operator must use British Summer Time or Greenwich Mean Time. For a golf tournament in the United States, local US time applies. Operators serving a global customer base must manage multiple time zones and may need to adjust market closure times for each event individually.

Fourth, the condition applies to “a contingency that may or may not happen in the course of” the match, race, or tournament. This is extremely broad. It captures not only obvious micro-bets (next wicket, runs in an over, stage winner) but also any other contingent outcome (whether a player will be dismissed before lunch, whether a cyclist will have a mechanical failure, etc.). Any bet on a micro-event that occurs during the day’s play is prohibited if accepted during the day.

Fifth, the condition does not apply to bets placed before the day begins or after it concludes. This creates an interesting window. If a bet is placed before the start of day one on the outcome of a specific over that will be bowled on day two, is that bet placed during a prohibited period? If placed before day two starts, it is permissible because the condition only applies to bets placed during the period starting at the start of day two and ending at its conclusion. The bet was placed earlier, so it is not caught. However, the operator must ensure that the market is not open for new bets during day two; existing bets placed earlier are unaffected.

Sixth, the instrument does not define when a day of play “concludes” if play is abandoned early. The condition says bets placed “during a period beginning at the start of any day of play ... and ending at the conclusion of that day of play”. If play is called off after 10 overs due to rain, the conclusion occurs at that moment. Operators need a mechanism to close markets immediately when play ends early. Similarly, if play continues beyond the scheduled end time, the period extends until actual conclusion.

Seventh, the instrument only covers cricket, cycling, and golf. Other multi-day sports (e.g., multi-day tennis matches are rare, but multi-day esports tournaments or multi-day sailing races) are not covered. But the general rules of the Act still apply: if the whole event is a single sporting event, in-play betting on it may be prohibited under the primary Act, regardless of this Determination.

Eighth, operators must be careful about the interaction between sections 5 and 7. Section 5 deems the whole event not to be a sporting event. That is used only for the purposes of subsection 10A(3). For other purposes, the event may still be a sporting event. But for the condition in section 7, the condition prohibits betting on the outcome of the whole match. That condition does not rely on the characterisation of the whole match as a sporting event; it operates independently. So the deeming in section 5 does not affect the operation of section 7.

Operators offering wagering on multi-day cricket matches, cycling races, or golf tournaments should take the following steps to ensure compliance with the conditions in section 7.

First, identify all events offered that fall within the definitions. A multiple-day cricket match is any cricket match occurring on more than one day, regardless of format. This includes Test matches, first-class matches, and any other multi-day cricket. Similarly, any cycling race that occurs on more than one day (stage races like the Tour de France, Giro d’Italia, Vuelta a España) is covered, as is any golf tournament that spans more than one day (almost all professional tournaments). Even if only two days, the definition applies.

Second, for each such event, implement technical controls that prevent the acceptance of any bet on the outcome of the whole event or on any contingency that may happen in the course of the event (or of a day of play) during the period from the start of each day’s play to its conclusion. This means that for each day of the event, all markets related to the event must be closed at the moment play begins, and must remain closed until play ends. This includes markets for the overall winner, match winner, tournament winner, stage winner, top batsman, next wicket, and any other contingent event.

Third, determine the start and conclusion times for each day of play using local time at the event location. Operators must have reliable data feeds that provide accurate, real-time information about the official start and end of play. This may require contractual arrangements with data providers or direct feeds from the sports governing bodies. For events where start times can change due to weather or pitch conditions, the operator must have a mechanism to adjust the market closure dynamically.

Fourth, ensure that the system does not accept bets placed during the prohibited period from any betting interface (website, mobile app, telephone, or any other channel). This includes bets that are placed by customers whose local time differs from the event local time. The system must enforce the prohibition based on the event’s local time, not the customer’s time zone.

Fifth, at the conclusion of each day’s play, the operator may reopen the markets for the overall event outcome and for the next day’s outcome. The operator must be careful not to reopen markets prematurely if play is delayed or if there is a chance that play could resume later that day. The “conclusion of that day of play” is the point at which no further play will occur on that calendar day. For example, if a cricket match is interrupted by rain and play is called off for the day at 4:00 PM, the markets can reopen at 4:00 PM. If there is a late resumption of play, the operator must wait until the actual conclusion.

Sixth, document compliance procedures and maintain records of when each market was opened and closed. The ACMA may request evidence of compliance if an investigation arises. Records should include timestamps in the event’s local time and the operator’s system time, as well as the source of start/conclusion information.

Seventh, train compliance and trading staff to understand that the condition applies to each day individually. Staff should not assume that because the overall event is not a sporting event, betting on it is unrestricted during play. The condition expressly prohibits such betting during the day.

Eighth, for events that straddle midnight (e.g., a day/night Test match that starts before midnight and ends after midnight local time), the day of play is defined by the local time. The period for the condition covers all parts of the match occurring on that particular day. If play continues past midnight, the day of play ends at the conclusion of play, even though the calendar date has changed. Operators should treat the entire continuous session as one day of play, not splitting it at midnight.

Ninth, consider whether to offer any in-play markets on these events at all. Given the complexity of managing market closures for each day, some operators may find it simpler to offer only pre-event betting on the overall outcome and on each day’s outcome, with no in-play options. That approach avoids the risk of accidental acceptance of a bet during a prohibited period.

Tenth, stay alert to any amendments to the Determination or the primary Act. The ACMA may issue guidance or enforcement priorities that affect compliance expectations. Regular legal review is recommended.