- Australia's Federal Government says it will arrest the operators of overseas casinos offering gambling services to Australians if they enter Australian territory. The Feds are also looking at options such as banning online advertising of gambling services to Australians.
The potential initiatives were outlined in an interview for IT newspaper Computerworld (Australia), with Communications minister Richard Alston. The minister says similar arrest provisions existed in the US under the Wire Act.
"The US Wire Act makes it an offense to offer a service from the Caribbean into the US and you are liable to prosecution if you set foot in the US and people have gone to jail. So you can do the same here. Someone who offers a service offshore won't be able to come to Australia. Now that's pretty significant if you are trying to offer those services from Vanuatu or New Zealand."
Legal specialists contacted by The Industry Standard (Australia) agreed that the Government possesses the power to make such laws, although there may be limits to this power. Adrian Lawrence, a senior associate at Baker McKenzie, says, "We feel the Government does have the ability to make the law."
Laws currently relating to drug importation and child sex tourism offenses are examples of the practice as it operates today. At issue: whether the effect of the action of the offender is within the Australian jurisdiction.
The Government has made its intentions clear already under section 14 of the proposed Internet Gambling Act 2001, clearly outlining that the law applies to acts outside Australia.
It appears, however, that the minister may be on slightly shakier ground with his references to the US Wire Act. While it's true that the Wire Act has been applied to people outside of the US, these have generally been US citizens and residents.
Liong Lim, another associate at Baker McKenzie, says that any proposal by the Government to extend such a law to non-residents would be "brave and controversial".
Moves in The Hague to change the laws about international jurisdiction could also prove problematic for the Government if they are ratified. The draft Hague convention removes the so-called "tag and transit" jurisdiction provisions whereby governments can claim jurisdiction over individuals transiting through their territory, according to Ben Cameron, solicitor, e-commerce, at Gadens Lawyers.
As to the suggestion that it appeared the Government was advocating more censorship, Alston said, "There are always legitimate social constraints on freedom."
He quoted Oliver Wendell Holmes as saying, "Freedom of speech does not give you the right to cry 'Fire!' in a crowded room."
According to Alston, "I don't have the right to defame you, I don't have the right to sexually harass you, I don't have the right to racially vilify you."
Alston acknowledges that technological solutions to restraining online consumer behavior are a moving target, but suggested it was still appropriate for the Government to regulate. "It's a bit like content regulation. We were universally ridiculed by the Labor Party, who are soft on drugs, weak on gambling, basically laissez-faire on pornography on the internet.
"As it turns out we've been able to issue over 100 take-down notices for what is essentially paedophilia, which is Australian-generated. Now does anyone seriously say we should not do that. And similarly, if you have bomb recipes on the net, if you've got hate-mail lists – if you can do something about it, should you just sit back and not even bother?"
Sandra van Dijk of Computerworld Australia contributed to this report.