National Gambling Amendment Bill [B31D-07]: Adoption of NCOP Amendments

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Trade and Industry

08 May 2008
Chairperson: Mr B Martins (ANC)
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Meeting Summary

The Law Advisers of the Department of Trade and Industry had already briefed the Committee on the amendments proposed by the NCOP to the National Gambling Amendment Bill. The D version of the Bill was placed before the Committee, incorporating those amendments made by the Select Committee. The major change related to Clause 15 of the Bill, amending Section 15 of the National Gambling Act (the principal Act), which dealt with advertisement, in particular advertisement of interactive gambling. The Select Committee had firstly suggested that the word "or web site" be added. Secondly, instead of supporting the Portfolio Committee’s total ban on interactive gambling advertising (imposed because of concerns about minors being exposed to gambling) the Select Committee had instead proposed that the Minister be given the power to prescribe the manner and form for interactive gambling advertising. The Department’s advisers pointed out that Section 15 of the principal Act already contained some restrictions on advertising. They suggested that the amendments proposed by the Select Committee were less open to challenge on the basis that they were discriminatory. Members accepted this comment, and made the point that although it was desirable to limit interactive gambling and its advertising, the reality was that such forms of gambling would be readily available to minors, and that implementation of bans would be problematic. It was pointed out that the existing regulations provided some further restrictions, and the Department would make these available to all Committee Members. The law advisers then summarised and explained the remainder of the amendments effected by the Select Committee, which were largely of a technical nature. The Committee resolved unanimously to adopt the D version of the Bill, which would be placed before the House the following week.

Meeting report

National Gambling Amendment Bill (the Bill): Deliberation on amendments proposed by NCOP
Mr Johan Strydom, Law Adviser, Department of Trade and Industry, noted that after the last meeting he had been asked to look again at certain of the clauses with which the Committee had a problem. He recapped that the D version of the Bill incorporated the amendments by the Select Committee. He had drawn up a table of all the amendments effected by the Select Committee, with a response or explanation of the motivation for those amendments.

At the previous meeting, only the amendment dealing with Section 15 of the National Gambling Act (the principal Act) had been dealt with. He suggested that at this meeting all the amendments proposed by the Select Committee should thus be covered.

Mr Strydom summarised the amendments being proposed to Section 15 of the principal Act. He would not repeat all the arguments, save to say that the Department of Trade and Industry (dti) and the Office of the Chief State Law Adviser (CSLA) had held further consultations, and had also discussed the matter with Ms K Beja, a Parliamentary Legal Advisor.

Mr Strydom referred the Committee to Section 15 of the Act as currently worded. This dealt with advertising of all forms of gambling. The heading referred to "restrictions on advertising and promotion of gambling activities". Section 15(1) set out that a person must not advertise in a false or misleading manner, nor advertise a gambling activity, other than an amusement game, in a manner targeted to attract minors. Subsection (2) provided that any advertisement must include a statement warning against the dangers of addictive and compulsive gambling. This was an important restriction. The Amendment Bill should not be seen in isolation and must be read together with what was already in this section.

The amendments proposed to Section 15 by the NCOP were contained in Clause 15 of the D version. The Portfolio Committee and NA had previously passed an amendment to the effect that, irrespective of Section 15 of the principal Act, advertising in respect of interactive gambling (IG) would be banned altogether. The Select Committee had added in the words "or web site" in respect of gambling activity. However, instead of agreeing to the total ban on interactive gambling, the Select Committee had decided to insert a clause to provide that the Minister may "prescribe the manner and form for interactive gambling advertising". This was limited to this type of gambling only and no such Ministerial power would apply in respect of other forms of gambling, which would then be dealt with under the normal course, in terms of Section 15 of the Act. During the extensive debate, one of the main arguments advanced by dti was that if Parliament were to pass a ban on interactive gambling only, then this was liable to challenge on the basis that it would be discriminatory; without sufficient justification, as there was no substantial difference between interactive and other gambling. Even this amendment as proposed by the Select Committee might be questioned, although it certainly did not go as far as the original clause in the B version of the Bill. Mr Strydom suggested, with respect, that it would be ill-advised to pursue the ban only on interactive gambling, and that the "middle road" now proposed by the Select Committee was the preferable option. In the future, advertising in respect of gambling in general was likely to be revisited, and the Department would have to come up with a policy stance.

Mr Strydom asked that Mr Mongameli Kweta, State Law Adviser, CSLA, also be permitted to address the issue as his Office had considered the matter.

Mr Kweta said that advertising was not prohibited in the principal Act, but was subject to certain conditions. The Amendment Bill gave certain powers to the Minister. If this Select Committee amendment were not to be approved, then his Office was concerned that there would be full advertising allowed for one type of gambling, whereas there would be restrictions on other forms. He agreed, on the other hand,  that there could be a constitutional challenge to the clause as agreed to by the NA. The Constitution stated that all had a right to freedom of trade and free economic activity, as well as having provisions on fair labour practices. He warned that the Committee must be careful not to interfere with this. He believed that the provision suggested by the Select Committee was preferable.

Discussion
Mr D Oliphant (ANC) asked why the amendments were being proposed. This new amendment was much less restrictive than the initial amending clause. In previous engagements it was stressed that this was in fact an amendment only, not a new Act. The focus fell on minors. He wondered how this process would be monitored and controlled. The fact was that, despite restrictions in the legislation, minors were succeeding in  buying and using cigarettes and alcohol. Children were using computers and were easily able to connect to wireless connections and gamble. He called for a realistic approach. No matter what constraints were in the law, the monitoring would be a problem. He did not think that it was possible to soften this amendment any further. Even with this proposed amendment, there was a possibility of legal challenge. He was not sure that anything further could be done.

Dr P Rabie (DA) concurred. "Gambling was gambling" and there was a need to be pragmatic and realise that minors had access to computers. However, there was the need to have some oversight and sense of responsibility. It was not fair to select interactive gambling as the only form in which abuse could occur. He did not think that this type of gambling be selected for a ban on advertising at the expense of others.

Mr J Maake (ANC) asked if there were any other options to deal with this. He asked if the Committee had essentially reached a dead end or if there were other suggestions.

Mr Strydom commented that there were not many permutations. Either there could be advertising with no strings attached, or a total ban on advertising, or it should be accepted that advertising in respect of gambling was regarded as undesirable, and therefore should have restrictions attached to it. The Select Committee was of the view that the restrictions currently contained in the principal Act and regulations remain, and that there be restrictions (through Ministerial prescription) applied also to interactive gambling advertising. Clause 15 of the D version of the Bill should, in his view, be adopted.

Mr Evelyn Masotja, Director: Regulated Industries, dti, said that there were current National Gambling Regulations in place. In particular he noted that Regulation 3 related to advertising, and this contained about 11 restrictions, in particular that gambling should not target the under 18s. The provincial legislation also said that each advertisement relating to gambling had to be approved by a Provincial Licensing Authority, who could use its discretion in applying additional measures if there were likely to be negative consequences. He believed that the restrictions did cover the concerns.

The Chairperson asked that a copy of the Regulations be provided to the Committee. Mr Strydom undertook to do so.

Mr Oliphant then referred to the remaining amendments proposed by the Select Committee and asked if these related to the advertising.

Mr Themba Marasha, Chief Operating Officer, National Gambling Board, said that they referred to the different types of licenses.

Mr Strydom said that Clause 1 was to be altered. In the B version, the definition of an interactive gambling licence had been restricted to operator and employment licences. It had been necessary to broaden this to capture all licences in the field, and these were now contained on page 12 of the D version, in clause 26. 
He confirmed that all forms of licences were now encompassed.

The two amendments in Clauses 3 and 4 of the C version contained the same principle; so that clause 3 of the D version now stated that "this Act applied to all gambling activities". Previously there had been an oversight, in that the wording had referred only to licensed activities. The dti would clearly like the Bill to apply to all forms of gambling activities.

Mr Strydom noted that in Clause 10 there was insertion of the word "facilitate", because the previous reference only to "engage in" did not encompass the facilitation of engagement. Both were to be regarded as an offence.

Mr Strydom said that the amendments in respect of clauses 19, 26, 27, 28, 29 and 30 were consequential amendments relating to the wording around licences. It was not necessary to deal with them in depth.

Mr Strydom noted that the remaining amendments to clause 33 and 34 were purely technical. The wording had appeared in the previous Bill but the additional wording being added had not been underlined. This was now being corrected so that the amendments were now appear with underlining.

The Chairperson noted that there were now sufficient Members present to constitute a quorum.

The Chairperson read out the Motion of Desirability.

The Committee resolved unanimously to adopt the D version of the Bill.

The Bill would be placed before the House for adoption in the following week.

The meeting was adjourned.

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