Saturday, July 02, 2022

Macau's self-exclusion sees success, some tweaks needed


One of the small but significant developments introduced by Law 10/2012 of 28 August 2012 was the addition of a novel legal provision that allowed for the voluntary self-exclusion of persons from casino venues in Macau. The law is viewed as having met with moderate success, though some changes may improve the legislation.

The regulation for the self-exclusion of problem gamblers was enacted under article 6 of Law 10/2012, which approved the new framework on the Conditions of Entering, Working and Gaming at Casinos and revoked for the first (and so far only) time three articles of the casino gaming law approved by Law 16/2001 of 24 September 2001, in the following terms:

1. The Director of the Gaming Inspection and Coordination Bureau may prohibit a person from entering all or some of the casinos, for a maximum period of two years, upon the application of an individual to exclude himself from casinos, or upon the confirmation of an exclusion request made by his spouse, ascendant, descendant or a family member related to him within the second degree of kinship by blood.

2. The excluded person may apply for revocation of the exclusion order mentioned in the previous paragraph at any time [within the exclusion period], but such revocation will only come into effect 30 days after a request for revocation of the exclusion order is submitted.

3. The exclusion order mentioned in paragraph 1 may be extended, after the exclusion order has expired or the revocation of an exclusion order, by means of a new self-exclusion application or after the applicant has confirmed a new third-party exclusion application.

As such, the model of exclusion adopted by the Macau lawmaker is strictly voluntary, but the exclusion procedure may be initiated by certain third parties, who need to be immediate family members of the excluded person. In that case, however, the excluded person will need to offer his consent to the request made by such third parties, without which the application made by these third parties will not be successful.

Family limitations

This point raised some doubts at the time of the approval of Law 10/2012, as it severely limits the ability of spouses, children, parents and siblings to force a problem gambler to be excluded from casinos, as happens currently in Singapore, where a person may be excluded if the gambling behavior of the excluded person has caused serious harm to his family. The Macau lawmaker decided not to follow the Singaporean model of Family Exclusion, which would require an adversary administrative procedure to allow for the Gaming Inspection and Coordination Bureau to hear all interested parties, in particular to offer opportunity for the person to be excluded to make a written representation in relation to the application, and decide, in each case, whether there are sufficient facts and evidences to warrant the exclusion of a problem gambler. This decision could then be challenged by judicial review.

Further, there was a broader and fundamental objection to individuals being prohibited from entering casinos against their will, restricting their freedom to dispose of their own assets and property as they see best fit, solely or chiefly to preserve the inheritance or other property interests of immediate family members. Hence, Law 10/2012 appears to assume that each individual is free and capable to decide if he wishes to be excluded from the local casinos, and offer his consent freely, even if he is suffering from a gaming addiction, which is obviously disputable.

The self-exclusion scheme set under Law 10/2012 is extremely flexible in terms of both cancellation and renewal of an exclusion order. With regards to the cancellation, there is no minimum period that needs to expire; an excluded person can make an application for revocation of the exclusion order at any time; and such cancellation will come into effect after 30 days, to allow sufficient time for the Gaming Inspection and Coordination Bureau to process the request and notify all casino operators. There are no substantial requirements that need to be fulfilled by the excluded person for this purpose. It would be preferable that the exclusion order have a minimum exclusion period (of six months or a year) and that an individual should not be allowed to leave the scheme before the exclusion period expired, to increase the protection of problem gamblers.

Flexible terms

In terms of the renewal of an exclusion order, the law does not allow for an open-ended exclusion but dictates that the exclusion order should be valid for a maximum period of 2 years. The model allows the excluded person to request one or more extensions of the exclusion order, potentially allowing for its continuous renewal.

The exclusion order may apply to all casinos in Macau, or only to certain casino venues, which appears to be designed to allow for casino employees to enter their working premises, and request to be excluded from all other casino venues. It should be noted that, as a general rule, under article 4/3 of Law 10/2012, casino employees are not allowed to gamble in the casino they work, or in any other casinos operated by his employer, so it would be sufficient for a problem gambler employed in a casino to apply for the self-exclusion of the remaining casino properties in Macau. There is anecdotal evidence that suggests that certain casino employees in Macau, namely the table games dealers, are particularly prone to become problem gamblers, and that a sizeable number of the current applicants to the self-exclusion scheme are employed in the local gaming industry.

The official data on the casino exclusion applications, made available by the Gaming Inspection and Coordination Bureau, suggests that the self-exclusion scheme is modestly successful, while the number of applications remains low if one considers the overall number of gamblers, mostly tourists, in the Macau casino gaming market. It can also be concluded that the exclusion initiated by third parties, while consisting of approximately only 10 percent of the self-exclusion requests, has been consistently utilized, which indicates that there are indeed a number of cases in which the excluded person does not submit an application for an exclusion order by himself, but does offer his consent when he is informed that an immediate family member has submitted an application for exclusion.

The current self-exclusion scheme does suffer from a number of obvious shortcomings, namely that it does not require that an excluded person is removed from the marketing databases of the casinos and is not contacted during the period of self-exclusion. There is also no specific regulation on the protection of personal data that is submitted for the purpose of the self-exclusion program, to ensure the privacy of the excluded persons. While general data protection laws will apply, it would be advantageous to have a number of specific regulations. The self-exclusion scheme currently only covers the casino operators, while other gaming suppliers are not included in the exclusion order, which could allow for an excluded person to gamble outside of casinos, namely in the Macau Jockey Club or in venues offering Pari-mutuels or sports betting. There is no clear reason why a self-exclusion scheme should apply only to casino gaming, and it appears obvious that a problem gambler could divert from casino to other forms of gambling.

Draconian consequences

Moreover, in surprising fashion, and in all likelihood unintentionally, under article 12 of Law 10/2012 the failure to comply with an exclusion order constitutes a crime of disobedience punishable by up to one year in prison or with a fine of 120 days. That means that if a self-excluded person does not comply with an exclusion order he will not only be asked to leave or conceivably forfeit all winnings or chips, tokens and vouchers in his possession or control at the time, but that the self-excluded person may be prosecuted for a criminal offense. One fails to see why a problem gambler, that breaches an exclusion order while battling his gambling addiction, should be subjected to criminal prosecution. This clearly unreasonable legal provision has not, at least as far as we are aware, ever been applied to cases of self-exclusion. One assumes that the apparent lack of enforcement is a living testament to the fact that the enforcement agencies do not consider it reasonable to pursue criminal charges for the simple breach of an exclusion order in these types of cases.

*Luís Pessanha is a part-time lecturer at the Faculty of Law of the University of Macau, where he lectures in tax and administrative law. He is a Senior Legal Adviser at the Legislative Assembly of the Macau SAR. He earned his L.L.B. from the New University of Lisbon, has a postgraduate from the Catholic University of Lisbon and obtained his L.L.M. from the University of Macau. He may be reached via e-mail at [email protected].

 

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