AUSTRALIA Law and Practice Contributed by: Jamie Nettleton, Samuel Gauci and James Dommett, Addisons
licensee. In this scenario, if the share sale exceeds a certain threshold (usually 5% or 10% of the issued shares), the purchaser will need to notify and obtain approval from the relevant regulator. In NSW, for example, the purchaser must disclose all information required for the regulator to investigate the suitability of the purchaser. Online lottery and wagering licences cannot be transferred. Another company may, however, acquire shares in the licensee. If the transfer of shares exceeds a certain threshold (usually 5% or 10% of the issued shares), the purchaser will need to notify and obtain regulatory approval in the relevant jurisdiction. The licensee and the purchaser in any transfer of shares that exceeds the threshold (eg, 10%) must disclose the information that the regulator needs to consider whether approval should be granted for the transfer of shares in the licensed company. The inquiries into the suitability of persons associat- ed with licensed land-based casino operators across Australia have introduced a heightened threshold to satisfy gambling regulators that individuals are suit- able to hold a licence and/or be associated with the licensed company. 10.2 Change of Corporate Control Triggers Generally, an acquisition of shares (directly or indi- rectly) that exceeds 5% or 10% of the issued shares in the licensee will trigger change-of-interest provi- sions that require the notification to or approval of the relevant gambling regulator for the purchaser and associated persons. 10.3 Passive Investor Requirements Passive investors will not usually be excluded from the requirements relating to change of control if they exceed the percentage threshold. 11. Enforcement 11.1 Powers The ACMA has broad investigative and enforcement powers under the IGA, including powers for: • issuing formal warnings;
• issuing infringement notices; • notifying the Department of Home Affairs (Aus- tralia’s immigration and border protection agency) of the names of directors to be included on the Movement Alert List; • pecuniary penalties; • directions; • cease-and-desist orders; • notifying foreign regulators of the operator’s breaches of the IGA; and/or • seeking an order from the Federal Court of Austral- ia for the imposition of substantial civil penalties. The regulatory bodies’ enforcement powers vary between states and territories. In general, state and territory regulators have broad investigatory and enforcement powers and can: • commence civil and criminal proceedings (where relevant); • conduct licence reviews; and • where required, vary licence conditions, or sus- pend or cancel the licence. 11.2 Sanctions Regulators are vigilant about ensuring that opera- tors comply with the applicable laws, and will take enforcement action when required. When considering whether to impose sanctions (eg, suspending or revoking a licence, or varying licence conditions), regulators will consider the administrative and legislative tools that they have at their disposal for implementing and enforcing these sanctions. 11.3 Financial Penalties All state-based regulators have the authority to under- take enforcement action against wagering operators. The NSW regulator, the LGNSW, is the most active regulator when it comes to taking enforcement action regarding advertising breaches. When determining the penalty, a court will take into consideration various factors, such as: • the medium of the publication; • the intended audience and context of the adver- tisement;
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