James Browne (Wexford, Fianna Fail) | Oireachtas source

I move amendment No. 91:

In page 115, to delete lines 24 to 32 and substitute the following:

“Offering inducement to gamble

148. (1) Subject to subsections (2) and (3), a licensee to whom this Chapter applies may offer the general public a benefit or advantage, the intent or effect of which is, either directly or indirectly, to encourage participation in gambling (in this section referred to as an “inducement”).

(2) A licensee may not offer a person or specific group of persons an inducement.

(3) A licensee shall comply with regulations (if any) made under subsection (4) in offering an inducement to the general public.

(4) Subject to subsection (5), the Minister may, following consultation with the Authority, make regulations— (a) imposing conditions on the manner in which an inducement or a class of inducements is offered by licensees,

(b) imposing conditions on an inducement or a class of inducements, or both, that may be offered by licensees, and

(c) prohibiting the offering by licensees of an inducement or a class of inducements. (5) The Minister shall, in making regulations under subsection (4) have regard to whether the inducement or class of inducements concerned would encourage or contribute to— (a) excessive or compulsive gambling, or

(b) an increase in the level of participation in gambling in the State contrary to public policy. (6) Without prejudice to the generality of subsection (4), the Minister may, in making regulations under that subsection, impose different conditions in relation to different inducements or different classes of inducements.

(7) A person who contravenes subsection (2) or regulations made under subsection (4) is guilty of an offence and is liable— (a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months, or both, or

(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years, or both.”.

This amendment relates to inducements and promotions. On Committee Stage, I noted that I was planning to revisit sections Nos. 148 and 151 to address the matter of promotions and inducements. As published, section 148 prohibits a licensee from offering an inducement to a person to participate or continue to participate in a relevant gambling activity. The intention behind this section was to stop gambling operators from offering targeted incentives to individuals to encourage them to start gambling or to continue to gamble. Section 151 provides that regulations may be made to impose conditions, restrict or prohibit promotions that encourage a person to participate in a gambling activity. The intention behind this section is to regulate but not prohibit promotional offers made to the public at large. In summary, the policy intention was, and still is, to prevent targeted and individualised incentives to encourage people to gamble, but to permit in a regulated manner offers that are open to everybody. As published these provisions are similar and have been a consistent cause for concern and requests for clarity from affected stakeholders including the gambling sector, horse racing sector, media companies both print and broadcasting, and those in the advertising sector.

It is apparent that the policy intention as expressed in the sections in question has become unclear. This has given rise to confusion both with regard to their meaning and application. The predominant concern from stakeholders is that these sections are ambiguous and lack legal certainty in distinguishing between what is prohibited in section 148 and what is permissible but may also be the subject of regulations under section 151. The concept of what constitutes a promotion is, for example, causing confusion in the immediate advertising sectors in the context of advertisements, particularly in the context of who would or could be held liable for publishing an advertisement intended to comply with the Bill for fear of it being interpreted as a regulated, restricted promotion or prohibited inducement. Furthermore, my officials and the Office of the Attorney General having reviewed these provisions agree that they lack clarity as to their purpose, application and detail as to what constitutes a promotion and what constitutes an inducement. This uncertainty will hinder the ability to take or conduct prosecutions, or both, as a court or jury will be obliged to determine in any circumstance whether the matter of a case before them is to be considered a prohibited inducement or a regulated but permissible promotion. Given that breaches of these measures carry the possibility of custodial sentences, it is important that the position in the legislation, when enacted, will be clear.

Taking these considerations into account, I am of the view that the approach in the Bill should be clarified. I want to ensure people are protected from predatory practices and give the authority and the courts the tools necessary to address such practices unhindered. I also want to provide certainty to all parties affected by the legislation, and I do not want to inhibit licensees from continuing to engage in common market practices such as offering promotions to the public. On that basis, I have tabled amendment No. 91 to introduce a new section 148 on offering inducements to gamble. This will replace sections 148 and 151.

Subsection (1) of the amendment provides that a licensee may offer the public a benefit or advantage to encourage them to gamble. These offers are to be known as inducements for the purposes of the Bill, and, as an example, could involve a special offer or promotional activity when someone opens a new account with a licensee. The key here is that the offer is open to everybody and is not specifically targeted to take advantage of an individual's particular circumstances.

Subsection (2) prohibits the offer of an inducement that is targeted at an individual or seeks to target a specific group of people. An offer targeted, for example, on the basis of gender, age, ethnicity or at supporters of a specific sports team would be prohibited.

Subsection (4) provides that the Minister, following consultation with the authority will make regulations to impose conditions on how inducements may be offered, conditions on any particular inducement or types of inducements offered by licensees, or may make regulations to prohibit particular inducements or to prohibit types of inducements offered by licensees.

As per subsection (5), where making any such regulations, the Minister must have regard to whether an inducement or type of inducements concerned would encourage or contribute to excessive or compulsive gambling, or to an increase in the level of participation in gambling in the State contrary to public policy.

Subsection (6) provides that any regulations may be tailored to impose different conditions and different types of inducements.

Subsection (3) provides that licensees shall be obliged to comply with any regulations made under this section, and subsection (7) provides that any person who contravenes the prohibition of targeted or individualised inducements under subsection (2) or any regulations made under this section shall be guilty of an offence and shall be liable to convictions - to a fine, up to five years' imprisonment, or to both at the discretion of the courts.

It is my belief that the revised approach reflects both mine and the Government's policy intention. It will provide certainty and clarity to all affected stakeholders and will enable the authority and courts to effectively regulate and deal with predatory practices to ensure people are properly protected when they choose to gamble.

Amendment No. 92 is consequential to amendment No. 91 and deletes section 151. The matters regulated by section 151 will be addressed by the amended section 148.

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