Overview of Australian Wagering or Bookmaking Law
28 November, 2021
Regulation of wagering operators or bookmakers is complex and fluid – with regulation at both the national and state levels, and multiple regulators, racing and sporting bodies, and other stakeholders. Some key court cases have shaped the current regulatory and taxation landscape.
A single exclusive off-course retail and totalisator (parimutuel) wagering license exists in each state and territory. This licence is currently held by ASX-listed Tabcorp (under its TAB brand) in all jurisdictions except for Western Australia.
In WA the exclusive retail and totalisator licensee remains government owned but as at the date of writing, the WA government is conducting a process to sell the WA TAB (with similar processes having occurred previously without a transaction resulting.)
The current Victoria retail and totalisator licence expires in 2024 and the Victorian government has commenced a process for the awarding of the next licence. It is possible that the Victorian government may consider a structure with more than one totalisator or retail licensee.
The concept and extent of ‘retail exclusivity’ has been challenged through the courts, albeit unsuccessfully. There remains scope for practical and legal disruption of retail exclusivity.
Other types of bookmaking licenses are available within each state and territory. Corporate or online fixed-odds bookmakers can seek a licence in jurisdictions including the Northern Territory, New South Wales or Victoria. Each jurisdiction has different probity requirements, licence levies and requirements, including approved premises in that jurisdiction.
Most corporate and online bookmakers offer tote-derivative products, with customer payouts determined by reference to the TAB-declared dividend) in competition with the TAB.
All bookmakers must hold approvals from each racing and approved sporting bodies to accept bets on that racing code or sport and pay an information fee to that racing or sporting body. The fee base and fee rate differ between each body from 5% of gross revenue to 3.5% of turnover.
Point of consumption taxes apply in each state and territory, with the tax base and tax rate again differing between each state and territory – up to 15% of gross revenue.
Other taxes include income tax, goods and services tax, and payroll tax. The effective overall tax rate for bookmakers is high. Planning and analysis of taxation implications is recommended for a business entering or operating in the Australian market.
A digital or crypto currency betting product has not come to market yet. This would seem almost inevitable.
Certain regulation applies at the national level. These include a prohibition against unlawful gambling (including online in-play betting on sports) and credit betting (except in limited circumstances) regulated by the Australian Communications and Media Authority (ACMA). Anti-money laundering is regulated by a stand-alone regulator (AUSTRAC) with state-level gambling regulators gradually becoming more involved in this. Certain consumer protections (including a prohibition against misleading marketing and advertising) and competition law are regulated by the ACCC. Limited aspects of gambling advertising law are regulated at the national level.
Most gambling advertising law is a complex web of state-based law. Some states or territories regulate gambling advertising at the point of supply (eg. Queensland and Tasmania) and other states or territories regulate it at the point of consumption (eg. New South Wales). Victoria has a hybrid model. This has resulted in overlap, gaps, anomalies and regulatory burden on business.
Harm minimisation regulation follows a similar complex web of state-based law. The 2019 ‘National Consumer Protection Framework’, although a national policy, was implemented at the state level but by some states and territories at the point of supply, and by others at the point of consumption or with a hybrid model.
For further information, please contact Pat Brown.