Compliance & Strategic Recommendations

Comprehensive and compliant Terms and Conditions (T&Cs) are fundamental to any trade promotion. Even in jurisdictions where no permit is required for businesses (Victoria, Queensland, Western Australia, Tasmania), the T&Cs serve as the primary document outlining the rules of the promotion and demonstrating adherence to mandatory legislative conditions. In these "no permit" states, the T&Cs effectively become the key evidence of compliance should any queries or complaints arise. Therefore, meticulous drafting that accurately reflects all applicable state-specific rules is paramount.

Key elements that should generally be included in T&Cs are:

• Promoter Details: Full name and address of the business conducting the promotion.
• Eligibility Requirements: Clearly defined criteria for who can enter, such as age restrictions (e.g., 18+ for alcohol prizes), residency requirements, and exclusions (e.g., employees of the promoter and their immediate families).
• Entry Method: Detailed instructions on how to enter the promotion, including any purchase requirements (and the condition that goods/services are at normal retail value).
• Promotion Period: Specific start and end dates and times for entry.
• Prize Details: A full description of each prize, including its recommended retail value (RRV).
• Winner Determination:
  • For games of chance: The date, time, and location of the prize draw(s).
  • For games involving skill: Clear judging criteria and the process for selecting winners.
• Winner Notification: How winners will be contacted (e.g., phone, email, mail) and within what timeframe.
• Winner Publication: Details of where and when winner information (e.g., name, suburb/postcode) will be published, especially for prizes exceeding certain values as mandated by state laws.
• Unclaimed Prize Handling: Procedures for dealing with prizes that are not claimed within a specified period, including details of any redraw dates and methods.
• Permit/Authority Numbers: Inclusion of relevant permit or authority numbers for jurisdictions where these are required and have been issued.
• Privacy Statement: Information on how entrants' personal data will be collected, used, and protected, in line with privacy legislation.

All advertising and marketing materials related to a trade promotion must be truthful and not misleading or deceptive, aligning with the overarching principles of the Australian Consumer Law. Specific states may have additional prohibitions:

• NSW, for example, prohibits advertising that encourages a breach of the law, depicts children participating in the gaming activity (unless appropriate and an age limit is set), suggests winning will be a definite outcome, or implies guaranteed financial improvement from participation. SA has similar restrictions.
• Where permits or authorities are issued, the relevant numbers must typically be included in advertising materials.
• If there are entry costs via specific methods (e.g., premium rate phone calls), these must be clearly disclosed, as required in QLD.

There is a notable degree of consistency across Australian states and territories regarding prizes that are prohibited in trade promotions. This uniformity simplifies one aspect of planning national campaigns. Commonly prohibited items include:

• Tobacco products, smoking products, or vaping products.
• Firearms, ammunition, imitation firearms, and other prohibited weapons.
• Explosives.

Other common restrictions include:

• Cosmetic surgery or similar medical/surgical procedures primarily for improving personal appearance (prohibited in SA, WA; also generally restricted in VIC, QLD, TAS).
• Liquor as a principal prize (specifically noted in NT).
• Offering alcohol as a prize if the promotion is open to minors (persons under 18 years of age) is generally restricted or requires specific conditions, such as responsible consumption messages.

Random and Equal Chance: For games of chance, a fundamental principle is that each valid entry must have a random and equal chance of being drawn.

Draw Procedures: Draws must be conducted according to the specified dates, times, and locations outlined in the T&Cs. For promotions with high-value prize pools, the presence of an independent scrutineer may be mandatory (e.g., in SA for prizes over $30,000).

Winner Notification: Timelines and methods for notifying winners are often prescribed. For example, ACT requires written notification within 21 days. SA requires written notification within 7 days if the winner is not present at the draw. VIC mandates that prizes be paid or transferred within 28 days of the draw.

Winner Publication: Many jurisdictions require the publication of winner details (typically name and suburb or postcode) for prizes exceeding a certain value. For instance, in VIC and ACT, this applies to prizes over $1,000. In SA, it's for prizes over $250. The method of publication (e.g., newspaper, promoter's website) is also often specified.

Businesses are required to maintain records related to their trade promotions for varying periods, depending on the state or territory:

• ACT: 12 months for records including entry forms, receipts, etc.
• South Australia: At least 3 months after the draw for ticket butts, entry forms, and other lottery records.
• Northern Territory: Full records for at least 2 years, including entries, prizes, winner publication, and evidence of prize awarding.
• Victoria: Records providing accurate financial accounting, entry accounting, and prize distribution reporting for 3 years after the lottery is finalized.
• Queensland: General gaming records (draw details, prize details, winner names; entries not required) for 5 years.
• Western Australia: Records relating to the lottery for 12 months.
• (NSW and Tasmania: Specific durations for general trade promotion records by businesses are not explicitly detailed in the provided materials, but adherence to best practice, aligning with other states for national promotions, is advisable.)

For national promotions, it is prudent for businesses to adhere to the longest record-keeping period mandated by any state in which the promotion is open (e.g., 5 years if open in Queensland). This approach ensures comprehensive compliance and simplifies administration. Records typically include copies of T&Cs, all entries received (where feasible or required), details of winner selection, correspondence with winners, proof of prize distribution, and advertising materials.

Terms and Conditions should clearly outline the procedure for handling prizes that are not claimed by winners within a reasonable timeframe.

• Holding Period: Unclaimed prizes are usually held for a specified period, often 3 months, if not otherwise detailed in the T&Cs or specific state regulations.
• Redraw Mechanics: The T&Cs should detail if and how a redraw for unclaimed prizes will be conducted. Some states mandate redraws (e.g., Queensland requires a redraw, typically 3 months after the original draw unless an earlier date is specified in the T&Cs; ACT also requires an unclaimed prize draw).
• In the Northern Territory, non-perishable prizes that remain unclaimed after 3 months must be surrendered to the Director of Gaming Control.