Author: Kieran Goodall, Senior Associate
Gaming machines represent a major investment and element of the offering for many clubs and pubs across Australia, and it is no surprise that they want consumers to know about their gaming machines on offer.
However, all states and territories impose strict requirements in respect of gaming machine advertising including any marketing communications sent to loyalty members or the public which reference gaming machines (over and above standard advertising laws).
This article discusses the general prohibitions against gaming machine advertising in New South Wales and Victoria, as well as the limited exceptions available to venues who still wish to disseminate gaming marketing and promotional materials.
1. General prohibition against gaming machine advertising in NSW and VIC
In the context of New South Wales and Victoria, gaming machine advertising is generally prohibited save for a limited number of exceptions, which we discuss in section 2 below.
In Victoria, the general prohibition is found in section 3.5.34AA(1) of the Gambling Regulation Act 2003 (Vic) (Victorian Act), which provides:
A venue operator must not publish or cause to be published any gaming machine advertising outside the gaming machine area of an approved venue.
The penalty for breaching this section is currently ~A$23,077.
The general prohibition in New South Wales is found in section 43(1) of the Gaming Machines Act 2001 (NSW) (NSW Act), which provides:
A person (whether or not a hotelier or club) must not publish or cause to be published any gaming machine advertising.
The penalty for breaching this section is currently A$11,000.
The prohibitions also apply to any persons purporting to publish gaming machine advertising on behalf of a venue or other person, such as the publishers of newspapers or magazines engaged by a pub or club.
“Gaming machine advertising” is defined very broadly in both the Victorian and NSW Acts and essentially includes any form of advertising that promotes (or gives publicity to) gaming machines or which contains any information associated with gaming machines.
2. Exceptions which allow gaming machine advertising in NSW and VIC
There are some limited exceptions to the general prohibitions against gaming machine advertising in Victoria and New South Wales.
In Victoria, the exceptions include the following:
a. Direct marketing to loyalty scheme customers: A venue operator who provides a loyalty scheme can disseminate gaming machine advertising to a participant in the loyalty scheme (provided they have not been suspended or removed from the loyalty program): section 3.5.34AA(5)(a) of the Victorian Act.
b. Person who expressly consent to advertising: A venue operator can also disseminate gaming machine advertising to a person who has requesting, in writing, gaming machine advertising from the operator: section 3.5.34AA(5)(b) of the Victorian Act.
c. Responsible gambling signs: A venue operator must display a responsible gambling sign outside every entrance to a gaming machine area (i.e. regardless of whether it could technically constitute ‘gaming machine advertising’): section 3.5.34AA(6)(ba) of the Victorian Act.
d. Crown Casino symbols: Advertising that contains any prescribed term, expression or symbol. The currently prescribed terms and symbols relate to Crown Casino logos and the like: section 3.5.34AA(6)(c) of the Victorian Act.
e. Signage exceptions: Various types of signage can be displayed which contain gaming machine advertising subject to nuance rules (e.g. font size, dimensions and colour etc). The various types of excepted signs include:
i. in-gaming machine area signage;
ii. on-approved venues signage;
iii. directional signage; and
iv. various other types of signage including convention signs, corporate logos and problem gambling signs.
In New South Wales, the exceptions include (but are not limited to) the following:
a. Trade journals and conventions: In a gaming machine industry trade journal that is not ordinarily available to the general public, at a trade convention, or in a publication for a trade convention involving the gaming machine industry: sections 41(a), (c) and (d) of the Gaming Machines Regulation 2019 (NSW).
b. Person who expressly consent to advertising: Any promotional material provided by a registered club to a member of the club provided the member has expressly consented to such advertising and it contains a range of mandatory statements: section 41(b) of the Gaming Machines Regulation 2019 (NSW).
c. State problem gambling campaign: Advertising which is part of an advertising campaign conducted by or on behalf of the State in relation to problem gambling section 41(e) of the Gaming Machines Regulation 2019 (NSW).
d. Public exhibitions: In a publication advertising a public exhibition held at a State-owned museum or similar public institution section 41(g) of the Gaming Machines Regulation 2019 (NSW).
e. Other limited exceptions: For example, advertising which:
i. is not on public display (e.g. within the gaming area); or
ii. is directed at a person or body in the gaming machine industry; or
iii. appears in a corporate logo on staff clothing; or
iv. appears in a telephone or internet directory.
3. Key takeaways
The advertising of gaming machines is a highly regulated activity and there are many differences between the laws applying in each State and Territory.
Any venue that wishes to publish gaming machine advertising should ensure that any such advertising falls within at least one of the exceptions (for NSW and VIC) and otherwise complies with the myriad of rules which govern gambling advertising in other jurisdictions.
We strongly recommend that venue operators seek legal advice if they are unsure about whether a proposed gaming machine advertisement is lawful, or if they have any questions about the compliance of their gaming machine operations generally.
In addition to the considerations discussed in this article, venue operators should also be cognisant when conducting promotional activities of their obligations under privacy laws, the Australian Consumer Law, their membership terms, the conditions of their relevant State or Territory licences and any relevant codes of conduct applying to their services.
To have a discussion about this article or find out more please contact Kieran Goodall - 0408 769 785 or kieran@senetlegal.com