Pok­ies gi­ants in court.

Vic­to­ria’s Fed­eral Court will de­cide whether a poker ma­chine has been il­le­gally de­signed to en­trap users, in the first case of its kind in the coun­try. By Martin McKenzie-Mur­ray.

The Saturday Paper - - The Week | Contents - Martin McKenzie-Mur­ray

In Mel­bourne’s Fed­eral Court this week, a “David and Go­liath” trial be­gan. The suit was brought by Shon­ica Guy, a for­mer gam­bling ad­dict, against in­dus­try gi­ants Aris­to­crat Leisure and Crown Mel­bourne Lim­ited. Guy’s lawyers al­leged that the poker ma­chine Dol­phin Trea­sure, which was man­u­fac­tured by Aris­to­crat and sold to Crown, is de­signed to un­law­fully en­trap its users.

It is a fas­ci­nat­ing, po­ten­tially in­dus­try-al­ter­ing trial in that it will con­sider what is nor­mally fas­tid­i­ously pro­tected in­tel­lec­tual prop­erty – the de­sign of a poker ma­chine. Never be­fore has this been so con­sid­ered by an Aus­tralian court. “There are two as­pects of con­sumer law in this law­suit,” Tony Mohr, a spokesman for the As­so­ci­a­tion for Gam­bling Re­form, tells me. “Mis­lead­ing and de­cep­tive con­duct, and un­con­scionable con­duct.”

The suit con­cerns three spe­cific al­leged char­ac­ter­is­tics of the ma­chine.

The first is that the fi­nal “reel” of the game is weighted dif­fer­ently – that the odds of se­cur­ing a win­ning com­bi­na­tion of sym­bols is much greater than the pre­vi­ous four, in­duc­ing a mis­lead­ing sense of op­ti­mism. The sec­ond is that sound ef­fects sug­gest­ing suc­cess are mis­lead­ingly de­ployed when a player is los­ing. The last is that the “re­turn to player” – its pay­out to users – is in­ad­e­quately ex­plained. Reg­u­la­tions stip­u­lat­ing the de­sign of poker ma­chines man­date a “re­turn” to the player, which varies be­tween 85 and 90 per cent de­pend­ing on the ju­ris­dic­tion. As­sum­ing an 85 per cent re­turn-to-player ra­tio, this means a player will, on av­er­age, lose 15 per cent of their wa­ger per game. This loss is ac­cu­mu­la­tive. “If a user in­serts $10 and wa­gers $1 each spin,” ex­plains a re­cent re­port from the Aus­tralian Gam­bling Re­search Cen­tre, “even if the game per­forms ex­actly as pre­dicted (and this is ex­tremely un­likely), the user would ex­haust their funds in a lit­tle more than five min­utes (at the rate of one wa­ger ev­ery five sec­onds).”

Lawyers for the plain­tiff ar­gue that Dol­phin Trea­sure’s users do not grasp this, be­liev­ing that the re­turn-toplayer ra­tio ap­plies to their to­tal bets. “Con­sumer law is, in some ways, a ver­sion of the pub test,” Mohr tells me. “You ask some­one what a 90 per cent re­turn to player means, and the an­swer will be that for ev­ery $100 you put in, you’ll on av­er­age get $90 back. And this is very far from the truth.”

Lawyers for Aris­to­crat and Crown ar­gue that the ma­chine con­formed to reg­u­la­tion, and that – via an in­for­ma­tion page ac­ces­si­ble on the game – the re­turn-to-player func­tion was ad­e­quately ex­plained.

In Jan­uary 1960, four years af­ter New South Wales joined Ne­vada as one of

Shon­ica Guy (right) and Jen­nifer Ka­nis, Mau­rice Black­burn’s head of so­cial jus­tice, out­side the Fed­eral Court in Mel­bourne this week.

the world’s few ju­ris­dic­tions to le­galise pok­ies, an episode of The Twi­light Zone aired in the United States. In “The Fever”, Mr and Mrs Gibbs win a paid trip to Las Ve­gas. Mr Gibbs ab­hors gam­bling and is re­luc­tant to go, but ac­cedes to his wife’s en­thu­si­asm for a hol­i­day. Given a buck by a drunk on the casino floor, Gibbs de­posits it into a slot ma­chine – hours later, still fu­ri­ously de­posit­ing his money to win back his losses, he has be­come ter­ri­fy­ingly, ir­re­vo­ca­bly hooked. Be­liev­ing the ma­chine has be­come sen­tient, and is now lit­er­ally pur­su­ing him, Gibbs leaps fa­tally from his ho­tel’s win­dow to es­cape it. The Twi­light Zone’s cus­tom­ary endof-episode nar­ra­tion in­toned: “Franklin Gibbs, vis­i­tor to Las Ve­gas … lost his money, his rea­son, and fi­nally his life to an inan­i­mate, metal ma­chine, var­i­ously de­scribed as a ‘one-armed ban­dit’, a ‘slot ma­chine’, or, in Mr Franklin Gibbs’ words, a ‘mon­ster with a will all of its own’.”

The ques­tion of will is cen­tral to the pok­ies de­bate – and is ar­guably im­plied, if ab­stractly, in the trial in the Fed­eral Court. In 1938, the psy­chol­o­gist B.F. Skin­ner pub­lished one of his most fa­mous books, The Be­hav­ior of Or­gan­isms, in which he ar­gued that be­hav­iour that is re­in­forced is strength­ened, and that which is not will be weak­ened, if not ex­tin­guished. Skin­ner would be­come the chief ex­pli­ca­tor of “op­er­ant con­di­tion­ing”, which The New York Times ex­plained in its 1990 obit­u­ary of the psy­chol­o­gist as a the­ory that “holds that any be­hav­ior, from a rat’s press­ing a bar to a hu­man’s com­pos­ing a sym­phony, is se­lected and re­in­forced by cer­tain pos­i­tive con­se­quences in the en­vi­ron­ment”.

Op­po­nents of pok­ies, tac­itly or oth­er­wise, ac­cept Skin­ner’s premise that, like an­i­mals, we can be eas­ily primed for de­struc­tive be­hav­iour and that a poker ma­chine is art­fully de­signed for the op­er­ant con­di­tion­ing of its user. Even al­low­ing for vari­a­tions of per­son­al­ity – com­pul­siv­ity is not evenly dis­trib­uted among the pop­u­la­tion – the ar­gu­ment may strike you as ei­ther de­press­ingly pa­tro­n­is­ing or merely re­al­is­tic.

The in­dus­try’s po­si­tion is clear.

Its peak body in Aus­tralia, the Gam­ing Tech­nolo­gies As­so­ci­a­tion, has pub­lished a player in­for­ma­tion book­let with the stated aim of help­ing “gam­ing ma­chine play­ers in­crease their un­der­stand­ing of the ma­chines”. The doc­u­ment opens: “Peo­ple who play gam­ing ma­chines to in­crease their in­come are ei­ther mis­in­formed about the na­ture of the ma­chines, or just plain fool­ish. Gam­ing ma­chines are not de­signed to en­able peo­ple to sup­ple­ment their in­comes. Gam­ing ma­chines are de­signed as recre­ational amuse­ment de­vices on which peo­ple can spend money. Play­ers are not forced to play ma­chines, nor are ma­chines de­signed to be ad­dic­tive. They are de­signed to be en­ter­tain­ing and at­trac­tive.”

The Aus­tralian Gam­bling Re­search Cen­tre, es­tab­lished in 2012 by the

Gil­lard govern­ment, re­leased a pa­per in July this year called “How elec­tronic gam­ing ma­chines work: Struc­tural char­ac­ter­is­tics”. It was writ­ten by Dr Charles Liv­ing­stone, a se­nior lec­turer in public health at Monash Univer­sity, and a man who will be called as an ex­pert wit­ness in the cur­rent trial. Re­gard­ing the struc­ture of pok­ies, Liv­ing­stone wrote: “The goal of game de­sign­ers is to max­imise rev­enue per avail­able cus­tomer and ‘time on de­vice’. For the most part, de­sign­ers utilise struc­tural char­ac­ter­is­tics to do so. Struc­tural char­ac­ter­is­tics de­fine the ca­pac­ity of [poker ma­chines] to in­duce sub­stan­tial ex­pen­di­ture in users. They may also have an ad­dic­tive or ha­bit­u­at­ing ef­fect on users.”

The pa­per ar­gued that Skin­ner’s “op­er­ant con­di­tion­ing” was fun­da­men­tal to a ma­chine’s de­sign. “It has been re­peat­edly demon­strated that an­i­mals (in­clud­ing hu­mans) de­velop ha­bit­ual be­hav­iour when ex­posed to an un­pre­dictable pat­tern of re­wards in re­sponse to spe­cific ac­tiv­i­ties ... Op­er­ant con­di­tion­ing is a key el­e­ment of [poker ma­chine] de­sign and is in­cor­po­rated in [poker ma­chine] games via their ‘game maths’ – the in­ter­play of ran­dom out­comes and the re­ward sched­ule of the game.”

There’s a dif­fer­ence in lan­guage be­tween the pokie mak­ers and its crit­ics. Public health ex­perts pre­fer “ma­chines” and “users”. The in­dus­try al­most uni­formly uses “games” and “play­ers” – flat­ter­ing words, in­vok­ing in­no­cence and thought­ful en­gage­ment. But Aris­to­crat Leisure’s founder, Len Ainsworth, of­ten uses more hon­est lan­guage, phrases that haven’t been mar­ket-tested. In a 2000 episode of Four Cor­ners on gam­bling, Ainsworth was asked what he thought had con­trib­uted to his com­pany’s suc­cess. His re­sponse has be­come no­to­ri­ous: “Build­ing bet­ter mouse traps.”

Ap­proach­ing his 100th birth­day, Ainsworth does not seem given to pained re­flec­tion. In 2013, and still far from re­tire­ment, he was in­ter­viewed again by the ABC. Asked for his thoughts on on­line gam­bling, he said: “It re­ally means the way it func­tions that any kid can sit at home with a com­puter, and I don’t think they make too many in­quiries as to who or what you are, as long as you’re pre­pared to gam­ble. Another view­point, of course, is that they’re prob­a­bly train­ing these peo­ple to gam­ble and they’ll end up in a casino or a club or a ho­tel play­ing our ma­chines, wher­ever it might be. So per­haps it’s a pos­i­tive.”

Ainsworth founded Aris­to­crat Leisure in NSW in 1953, just three years be­fore poker ma­chines were legally recog­nised by the state. This en­cour­aged in­tense in­vest­ment in, and sub­se­quent in­no­va­tion of, gam­ing ma­chines. Be­cause of the early le­gal recog­ni­tion for this ex­otic form of gam­bling, Aus­tralia be­came and still is pre-em­i­nent in ma­chine de­sign. “It’s a fas­ci­nat­ing, if galling his­tory,” Tony Mohr says. “Aus­tralian com­pa­nies, es­pe­cially Aris­to­crat, have be­come world pi­o­neers in gam­bling ma­chines.”

In­no­va­tion and state ac­cep­tance mean Aus­tralia has al­most 200,000 pok­ies – the high­est per capita in the world, ex­clud­ing casino-dom­i­nated economies such as Ma­cau. Ac­cord­ing to the Queens­land Trea­sury, they ac­count for $14 bil­lion in gam­blers’ losses. Un­sur­pris­ingly, Len Ainsworth be­came a bil­lion­aire, but a ter­mi­nal can­cer prog­no­sis in 1994 – when he was 71 – forced his di­vesti­ture from the com­pany. As part of his sev­er­ance, he de­manded a pres­tige car ev­ery three years un­til he died.

He’s still re­ceiv­ing them. The prog­no­sis was wrong, and Ainsworth es­tab­lished a ri­val com­pany that bore his name. It has yielded al­most another bil­lion dol­lars. While not a house­hold name, Ainsworth is an in­dus­try leg­end and he re­mains at the helm of his com­pany.

It’s a suc­cess­ful firm, al­though not as dom­i­nant as his orig­i­nal – Aris­to­crat is now the sec­ond-largest man­u­fac­turer of pok­ies in the world. De­spite the law­suit, its share price for the past five years de­scribes a moun­taineer’s as­cent.

Tony Mohr be­lieves that, re­gard­less of the Fed­eral Court case’s out­come, there is grow­ing op­po­si­tion to the ma­chines. “The trial is part of a big­ger, longer prob­lem for the in­dus­try,” he says. “In Aus­tralia to­bacco is the best par­al­lel. It’s sold for big prof­its, de­signed to ad­dict and bad for your health. Smok­ing was once so com­mon to­day’s world-lead­ing laws were un­think­able. It’s not go­ing to be easy, but pok­ies will be the next to­bacco. The cam­paign won’t wither away and die on an ad­verse out­come in the trial. We’re build­ing a con­stituency of peo­ple who are pas­sion­ate about this. There aren’t many, but there are some MPs who have spo­ken out about this – and in these cases it’s likely that they’ve wit­nessed the suf­fer­ing. Nick Xenophon is a case in point. We’re do­ing work now with AFL clubs, many of whom profit from pok­ies. We’re work­ing with AFL fans and clubs be­cause every­one wants footy to be fam­ily friendly and pok­ies and gam­bling are the op­po­site of that. That’s why North Mel­bourne got rid of their pok­ies and why Gee­long are now do­ing the same.”

The trial is ex­pected to run for three weeks. There are a few pos­si­ble out­comes, and as many minds work­ing on them as there are on the many mil­lions of

• prob­a­bil­i­ties on a one-dol­lar bet.

MARTIN McKENZIEMU­RRAY is The Satur­day Pa­per’s chief cor­re­spon­dent.

Newspapers in English

Newspapers from Australia

© PressReader. All rights reserved.