National Self-exclusion Register (Cost Recovery Levy) Determination 2022

The central concept is the cost recovery levy, which is a statutory charge on licensed interactive wagering service providers to fund the National Self-exclusion Register (BetStop). The levy is not a tax on gambling turnover or profits; it is a fee calculated on the basis of usage of the register as measured by the number of individual checks each provider makes. ‘Request for access’ is defined in section 4 by reference to subsection 61NC(1) of the Interactive Gambling Act 2001. That provision requires a provider to request the register operator to confirm whether a particular individual is on the register. Each such request specifies an individual. The number of individuals specified in all requests by a provider during a levy period forms the numerator of that provider’s share.

The formula in section 6 therefore allocates total recoverable costs among providers in proportion to how many times they check the register. This design creates a direct link between use and cost, but the link is imperfect. The register’s costs are largely fixed: developing and maintaining the database, operating the helpline, and enforcement. The variable cost per individual check is near zero. So a provider that checks many individuals (perhaps a large operator with many customers attempting to gamble) will pay a larger share of fixed costs, while a small provider with few checks pays a small share, even though both benefit equally from the register’s existence. The allocation may also be influenced by consumer behaviour: if customers of a particular provider are more likely to attempt to gamble and thus more checks are triggered, that provider’s levy increases regardless of its own compliance efforts.

The term ‘designated levy period’ is a subset of ‘levy period’. The Act defines a levy period as a financial year or such other period as specified in the determination. This determination designates three specific periods: the initial part-year from commencement to 30 June 2024, and the two following full financial years. The ‘applicable percentage’ for each designated levy period limits the amount of costs recoverable. For example, in designated levy period 1, the ACMA can only recover 30 per cent of the costs it incurs that are within the limits set by section 10 of the Act. That does not mean the levy is 30 per cent of each provider’s share; rather, the total amount that can be levied on all providers collectively is capped at 30 per cent of the recoverable costs for that period. The formula then distributes that capped amount proportionally.

The parent Act (National Self-exclusion Register (Cost Recovery Levy) Act 2019) sets out the total limits on levies, but the determination operationalises the calculation. The instrument is a legislative instrument registered on the Federal Register of Legislation and is subject to disallowance by Parliament. It does not create obligations directly; those arise from the Act. It purely defines the arithmetic.

The levy directly affects all licensed interactive wagering service providers operating in Australia. The term ‘licensed interactive wagering service provider’ is defined in the Act; it covers entities that hold a licence under the Interactive Gambling Act 2001 to provide interactive wagering services (for example, online sports betting and race wagering). These are primarily the large corporate bookmakers and wagering operators, but also include smaller providers. The levy is imposed on the provider itself, not on its customers or shareholders. However, in a competitive market, providers may pass the cost of the levy through to consumers via reduced promotional offers, narrower margins, or higher fees on deposits. Because the levy is proportional to the number of individual checks, a provider with a high volume of customer attempts to gamble will bear a larger levy. This may disproportionately affect operators with large customer bases and high engagement, such as the dominant market players. Smaller niche providers with few customers will pay very little, but they still receive the benefit of a register that excludes problem gamblers across all operators.

The ACMA is also directly affected. It is responsible for determining the total recoverable costs for each levy period, notifying providers of the amount due, and collecting the levy. The ACMA’s cost recovery must stay within the statutory limits (section 10 of the Act) and the applicable percentages in this determination. If its costs exceed the cap for a period, it cannot recover the excess until the next period or may need to adjust its spending. The determination therefore constrains the ACMA’s ability to front-load recovery.

Indirectly, the determination affects individuals who are placed on the BetStop register. Their existence generates the requests for access that drive the levy calculation. However, the determination imposes no obligations on individuals; they are not parties to the levy. The register’s effectiveness depends on providers checking all intending customers, which in turn increases the levy base. There is a potential tension: the more effective the register (more exclusions and more checks), the higher the costs recovered from providers. That may create a perverse incentive for providers to minimise checks, but the Interactive Gambling Act 2001 mandates that providers must check before allowing a customer to place a bet. So compliance is mandatory, and the levy is a consequence of that compliance.

The levy may also affect the broader gambling industry by increasing the cost of operation, which could reduce the number of providers or increase concentration. New entrants face the same proportional structure, but if they have few customers, their levy burden is light. The cost recovery is a direct charge on revenue, albeit not a percentage of revenue, so its incidence varies.

The determination itself imposes no duties or rights directly. The duty to pay the levy arises from section 9 of the National Self-exclusion Register (Cost Recovery Levy) Act 2019. The determination merely calculates the amount. However, several duties and rights under the parent Act are relevant.

First, providers have a duty to pay the levy in full by the due date specified in a notice of assessment issued by the ACMA. Non-payment may result in civil penalties and the ACMA can seek recovery as a debt due to the Commonwealth. The determination gives providers the right to know how the amount is calculated. The formula is transparent: each provider can compute its own share if it knows its number of requests and the total industry requests and recoverable costs. However, the ACMA holds the data on total requests and total costs, so providers effectively rely on the ACMA to provide the figures. The determination does not mandate that the ACMA disclose the values of B, C or D individually, but in practice such disclosure is necessary for the levy to be reasonably assessed.

Second, providers have the right to request the register operator to check an individual under section 61NC of the Interactive Gambling Act 2001. That request is the trigger for counting an individual in the formula. The provider cannot avoid the levy by refusing to check; it is an obligation to check before providing a service. Therefore, the duty to check is a duty to generate entries in the levy calculation. There is no right to opt out of the cost recovery system.

Third, the ACMA has the right to determine the total recoverable costs for each levy period within the limits of section 10 of the Act. Those costs include the ACMA’s costs in establishing and operating the register, but also any other prescribed costs. The ACMA has the duty to calculate the levy correctly and to issue notices. If a provider believes the levy has been miscalculated, it may have rights of review under the Act or under the general law, such as judicial review under the Administrative Decisions (Judicial Review) Act 1977. The determination itself does not provide a merits review mechanism.

Fourth, the determination establishes a phased recovery. For designated levy periods 1, 2 and 3, the ACMA can only recover a capped percentage of total costs. That is a limitation on the ACMA’s right to recover, not a duty. It gives providers certainty that they will not be charged more than the applicable percentage of costs in each period. However, if costs are lower than expected, the levy will be lower. If costs exceed the cap, the ACMA may carry forward the shortfall to later periods (subject to the Act) or may not recover at all.

The determination does not itself create offences or penalties. Penalties for non-payment of the levy are set out in the National Self-exclusion Register (Cost Recovery Levy) Act 2019. That Act provides that the levy is a debt due to the Commonwealth, and if a provider fails to pay, the ACMA may recover the amount in a court of competent jurisdiction. Section 13 of the Act also creates an offence for providing false or misleading information in connection with a levy, punishable by criminal penalties. The determination, however, is the basis for the amount claimed. If the levy is miscalculated due to an error by the ACMA (for example, an incorrect total of requests), a provider may dispute the amount, but the enforcement provisions operate on the assessed amount.

The ACMA has general enforcement powers under the Interactive Gambling Act 2001, including the power to issue infringement notices, seek injunctions, and suspend or cancel licences for non-compliance with the Register requirements. Failure to pay the levy is not directly linked to licence conditions, but persistent non-payment could be treated as a sign of non-compliance more broadly. The ACMA’s enforcement of the levy is therefore supported by the broader regulatory framework.

The determination also indirectly affects enforcement of the Register itself. If a provider fails to check an individual before providing a service, it may be in breach of the Interactive Gambling Act 2001. That breach would also mean the provider’s number of requests (B) is understated, which could lead to a lower levy than it should be. The ACMA may audit providers’ request records to ensure accuracy. If a provider deliberately undercounts its requests to reduce its levy, that could constitute an offence of providing false information under the Act, attracting penalties. The determination’s reliance on self-reporting of requests (through the register operator’s records) creates a risk of manipulation, but the register operator is a government entity, so the record of requests is likely to be accurate from the operator’s side. The provider cannot unilaterally alter the count without the operator’s cooperation.

In summary, enforcement relies on the parent Act’s provisions, not the determination. The determination is purely arithmetic.

This determination is made under the National Self-exclusion Register (Cost Recovery Levy) Act 2019 (the Act). The Act provides the framework for the levy, including who pays, the limits on the amounts, and the authority for the ACMA to make this determination. The determination must be consistent with the Act. For example, section 7 of the determination designates certain levy periods and applicable percentages, which is expressly authorised by subsection 11(1) of the Act. The determination cannot exceed the boundaries set by the Act.

The determination also cross-references the Interactive Gambling Act 2001 (the IGA). The term ‘request for access’ is defined by reference to subsection 61NC(1) of the IGA, which requires providers to request the register operator to check an individual. The IGA sets the substantive obligation to check; this determination uses that same act to define the levy base. Therefore, the accuracy of the levy depends on the accuracy of the IGA’s compliance framework. Any amendment to the IGA that changes the definition of a request or the manner of checking would affect the levy calculation.

The determination is a legislative instrument under the Legislation Act 2003. It is registered on the Federal Register of Legislation and is subject to tabling and disallowance by either House of Parliament. It must be published and accessible. The Legislation Act 2003 also governs the interpretation of references to other instruments (section 5 of the determination). The note to section 5 references the Acts Interpretation Act 1901 and section 13 of the Legislation Act 2003, ensuring that references to Acts and instruments are to their current versions unless the contrary intention appears.

The determination interacts with the general law of administrative review. The levy assessment is a decision under the Act, and a provider may seek judicial review under the Administrative Decisions (Judicial Review) Act 1977 on grounds such as error of law, unreasonableness, or procedural unfairness. The determination itself could be challenged if it were ultra vires the Act (for example, if it designated a period not permitted by section 11). There is also potential interaction with the taxation administration laws if the levy were considered a tax, but it is a fee for service (cost recovery) and is treated as a regulatory charge.

There is no direct interaction with state gambling laws, because the levy applies only to licensed interactive wagering service providers under Commonwealth law. However, some state-licensed wagering operators may also be subject to state levies. The determination does not affect those.

The instrument was originally made on 17 August 2022 as the National Self-exclusion Register (Cost Recovery Levy) Determination 2022 (F2022L01073). It commenced at the start of the day fixed by Proclamation for the purposes of subsection 61GC(1) of the Interactive Gambling Act 2001, which turned out to be 21 August 2023. The original determination presumably contained the same sections, but the endnote shows that section 4 (Definitions) and section 7 (Designated levy periods and applicable percentages) were amended by a variation instrument: the National Self-exclusion Register (Cost Recovery Levy) Determination Variation 2023 (No. 1) (F2023L01074), registered on 10 August 2023 and commencing on 11 August 2023.

The variation amended the definition of designated levy periods - likely to adjust the start date or the applicable percentages. The current instrument text shows three designated levy periods: period 1 from the proclaimed start day to 30 June 2024 (30 per cent), period 2 the 2024-2025 financial year (35 per cent), and period 3 the 2025-2026 financial year (35 per cent). It is possible the original instrument may have had different periods or percentages before the variation. For example, the original might have included a designated levy period 1 that ended on 30 June 2023 (but because the register did not commence until August 2023 that would have been problematic) or different percentages. The variation corrected the periods to align with the actual commencement date and to set the percentages at 30, 35, 35.

The endnotes also confirm that the compilation includes amendments up to the variation. No further amendments are shown. The instrument is relatively new, and only one variation has occurred. The note indicates that any future amendments would appear in the legislation history. Users must check the current compilation for the operative text. The fact that the variation occurred just days before the proclaimed commencement (21 August 2023) suggests that the original determination needed adjustments to match the final commencement date and cost recovery plan.

There is no reported case law specifically concerning the National Self-exclusion Register (Cost Recovery Levy) Determination 2022 as at the current date. The instrument has been in force only since August 2023, and the levy assessments for the first designated levy period (21 August 2023 to 30 June 2024) are likely to have been issued and paid without dispute. Because the determination is a legislative instrument, it could be challenged in the Federal Court or the High Court for constitutional invalidity, ultra vires, or procedural errors in its making, but no such challenges have been recorded.

The parent Act may face broader litigation, but that would be indirectly relevant. For example, the validity of the levy itself could be challenged if it were argued to be an unconstitutional tax (though cost recovery charges are generally permissible) or if the ACMA’s cost allocation exceeded its statutory limits. Any such challenge would likely cite the determination as the specific calculation method, but no cases are known.

The interactive wagering industry has been litigious over other aspects of the Interactive Gambling Act 2001, such as the prohibition on in-play betting and the advertising restrictions, but the cost recovery levy has not yet been the subject of judicial review. The absence of litigation may indicate that the industry accepts the methodology, or that the amounts involved have not been large enough to justify legal challenge. Given that designated levy period 1 capped recovery at 30 per cent of costs, and the register’s costs in the initial partial year may have been lower, the first levy amounts were likely modest. Future periods are capped at 35 per cent each, but total costs could rise, increasing the levy. If the ACMA’s costs escalate unexpectedly, providers may be more inclined to challenge the reasonableness of the cost components or the accuracy of the request counts.

For now, the litigation history is nil. This determination is too new and too narrow to have generated case law. Any future proceedings will appear in the Federal Court databases.

Several aspects of the determination could catch providers off-guard.

First, the levy base uses ‘the total number of individuals specified in all requests for access’ made by the provider. If the same individual is checked multiple times - for example, if a customer returns to the site on different days - that individual is counted each time. There is no de-duplication. A provider with a high number of returning customers who attempt to bet frequently will face a larger levy simply because of repeated checks. Providers cannot control this, as they must check every time the customer seeks to gamble. The formula thus penalises high-engagement customer bases.

Second, the determination defines designated levy period 1 as starting at the proclaimed start day (21 August 2023) and ending at 30 June 2024. That is only about 10 months, not a full financial year. The applicable percentage of 30 per cent for that period may be misleading. If the total recoverable costs for that 10-month period are lower than a full year, the levy amount may be modest. But if the ACMA incurred large start-up costs in that period, 30 per cent of those costs could still be substantial. Providers should not assume that the 30 per cent cap means a low dollar amount; it depends on D.

Third, the calculation of D - the total recoverable costs - is not defined in this determination. It comes from section 10 of the Act, which lists categories such as establishment costs, operating costs, and other prescribed costs. The ACMA has broad discretion to determine which costs fall within those categories. Providers have limited visibility into the ACMA’s cost allocation. If the ACMA includes contested costs (e.g., internal staff overheads or litigation costs), the levy could rise without industry input. There is no requirement for the ACMA to obtain external verification of costs.

Fourth, the amendment history shows that section 4 (Definitions) was amended by the 2023 variation. That suggests that the definition of ‘designated levy period’ was changed. Providers relying on the original instrument may have miscalculated their expected levy. The variation was registered on 10 August 2023 and commenced the next day, just days before the register went live. Providers had little time to adjust. The final version of the instrument should always be reviewed.

Fifth, the determination applies for only three designated levy periods. Beyond 30 June 2026, the mechanism is unclear. The Act contemplates further designated levy periods made by future determinations. Providers cannot assume the 35 per cent cap will continue. Future determinations could change the percentages or the formula altogether, creating regulatory uncertainty for long-term budgeting.

Compliance with the determination is indirect; the main duty is to pay the levy assessed by the ACMA. However, providers should take several practical steps.

First, maintain accurate records of all requests for access to the register. The provider’s internal systems should log each request made under subsection 61NC(1) of the Interactive Gambling Act 2001, including the date and the individual’s details. The count of individuals specified in those requests is the numerator B in the formula. The provider should reconcile its records with the register operator’s records to ensure consistency. Any discrepancy could lead to an overpayment or underpayment. If the provider disputes the ACMA’s total B, it needs its own audit trail.

Second, monitor the ACMA’s publication of total industry requests (C) and total recoverable costs (D) for each levy period. The determination does not require the ACMA to publicly disclose these figures, but in practice they are likely to be included in levy notices or explanatory statements. Providers should review the figures for obvious errors. If the ACMA’s D includes costs that appear outside section 10 of the Act, the provider may object before the levy is issued.

Third, ensure that the levy is paid by the due date specified in the notice of assessment. The determination does not set a due date; that is in the Act or the notice. Late payment may attract interest or penalties separate from the levy. Providers should budget for the levy as an operational cost. The amount can be estimated using the prior period’s costs and request volumes, but the actual levy will not be known until after the period ends when the ACMA compiles the data.

Fourth, review the corporate structure. The levy is imposed on the licensed entity. If a group operates multiple licences, each is a separate ‘person’ under the Act and will have its own levy based on its own requests. There is no consolidation. Providers should not assume a group can net requests across entities.

Fifth, prepare for future periods. The determination covers only three designated levy periods. After 30 June 2026, a new determination may change the percentages or even the formula. Providers should engage with the ACMA during consultation processes for future determinations to ensure the cost recovery remains proportionate and transparent.

Sixth, those responsible for compliance should read the parent Act carefully, particularly section 10 (recoverable costs) and section 13 (offences). The determination is only one piece. The broader regulatory framework includes obligations to check the register, report, and keep records. Non-compliance with those underlying obligations can result in enforcement that dwarfs the levy itself.