Trade Promotion Lawyers Adelaide: Competitions, Giveaways, Lottery Rules and Terms and Conditions
Trade promotions and competitions in South Australia
When a business runs a giveaway or competition and chance plays any part in who wins, the promotion is usually a trade promotion lottery under the Lotteries Act 2019 (SA), which decides whether it needs a licence and which rules it must follow. Talon Legal drafts and reviews terms and conditions for Adelaide businesses running competitions and giveaways, and for the agencies that run promotions for them. Book a same-day free 30-minute consultation or call (08) 7094 2021.
Trade promotion key facts
| Issue | Position in South Australia |
|---|---|
| Trade promotion lottery | A scheme, competition or game that distributes property to promote goods or services, with free entry or entry by purchase, where chance plays a part at any stage (Lotteries Act 2019 (SA) section 4). |
| No licence needed | Prizes of $5,000 or less in total, drawn prizes only, run under Schedule 5 (Lotteries Regulations 2021 (SA) regulations 3 and 9). |
| Licence needed | Prizes over $5,000 in total, or any instant prizes (regulations 3 and 18). |
| Interstate promoters | The Act applies if South Australians can enter, wherever the lottery is run (section 9(1)). |
| Unlawful lottery | Conducting or assisting: maximum $10,000 (section 10(1)). Advertising: maximum $5,000 (section 12(1)). |
| Dishonest or misleading conduct | In connection with any lottery: maximum $50,000 or 2 years imprisonment (section 30). |
| Prizes | Must be provided as offered (ACL section 32(2)). |
| First step | Same-day free 30-minute consultation. Call (08) 7094 2021. |
Need a trade promotion lawyer in Adelaide?
Our trade promotion lawyers in Adelaide act for businesses running competitions, giveaways, prize draws, instant win and refer-a-friend promotions, and for the agencies that run them. The Lotteries Act 2019 (SA) and the Lotteries Regulations 2021 (SA) decide whether a promotion needs a licence and what its terms and advertising must say. The Australian Consumer Law (ACL), in Schedule 2 of the Competition and Consumer Act 2010 (Cth), requires prizes to be provided as offered. This page states the law current to 6 November 2026.
This guide is part of our marketing and advertising practice. Related guides cover agency and PR agreements, sponsorship agreements and testimonial and image consents.
Free Consultation. Send us the promotion mechanics and draft terms before anything is advertised. Book a same-day free 30-minute consultation or call (08) 7094 2021.
On this page
- What should the terms and conditions cover?
- When is a competition a trade promotion lottery?
- Does South Australian law apply to a national promotion?
- Does the promotion need a licence?
- What do the minor promotion rules require?
- What do licensed promotions add?
- What rules apply while the promotion runs?
- How must prizes be awarded?
- What can the advertising claim?
- Who commits an offence?
- Can entrants' details be used for marketing?
- How similar matters tend to play out
- How we act on trade promotions
- Case law
- Frequently asked questions
What should the terms and conditions cover?
Everything the entrant needs and the rules require: the promoter and trader, who can enter, how and when, entry limits, any qualifying purchase, each prize and its value, the date, time and place of each draw, how winners are told and paid, and unclaimed prizes. A trade promotion lawyer will also add rights to disqualify fraudulent entries and substitute a prize of equal value, a privacy collection statement and a separate marketing consent.
Terms work only if entrants agree to them. A person who signs a document known to contain contractual terms is bound by them, read or not, absent a vitiating element or a claim for equitable or statutory relief (Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 at [57]). An online form should show the terms, and record acceptance, before entry.
Overseas templates often disclaim all warranties. If that misstates entrants’ rights, it risks contravening ACL section 29(1)(m), which covers false or misleading representations about the existence, exclusion or effect of a guarantee, right or remedy. In ACCC v Booktopia Pty Ltd [2023] FCA 194, Booktopia accepted that a term requiring customers to report faulty items within 2 business days represented that they had to do so to have a remedy ([15], [18]). A $6,000,000 penalty was ordered.
When is a competition a trade promotion lottery?
When it meets all three limbs of section 4 of the Lotteries Act 2019 (SA). It is a scheme, competition, game or device for distributing property:
- where the distribution depends, at any stage, on an element of chance, even if it also involves a genuine or purported display of knowledge or skill;
- conducted with a view to promoting goods or services; and
- where entry is free, except that it may depend on buying the promoted goods or services, and entry by phone, SMS or other electronic means may cost up to 50 cents plus GST (regulation 24), or by post up to normal postage.
“At any stage” catches most promotions. A random draw, a random pick of finalists or a tie-break draw can each bring chance in. A competition decided only by skill, with no element of chance at any stage, does not meet the definition, though the ACL rules on prizes and advertising still apply.
A scheme with an entry fee beyond those exceptions is not a trade promotion lottery. If chance plays a part at any stage, it can still be a lottery under section 6(1)(a), and one that is neither licensed nor permitted is unlawful (section 4).
Templates citing the Lottery and Gaming Act 1936 are out of date. The Lotteries Act 2019, in force since 10 December 2021, removed the lottery provisions from that Act.
Does South Australian law apply to a national promotion?
Yes, if South Australian residents can enter. The Act applies to a lottery in which people resident in South Australia can participate, whether it is conducted within or outside the State (section 9(1)). A national promotion must also be checked against the rules of every other State and Territory it is open to.
Does the promotion need a licence?
It depends on the prizes. There are three kinds (regulation 3(1)):
| Kind | Prizes | Licence |
|---|---|---|
| Minor trade promotion lottery | Total value $5,000 or less, drawn prizes only | Not needed if Schedule 5 is followed (regulation 9(1)) |
| Major trade promotion lottery | Total value over $5,000, or both instant and drawn prizes of any value | Major trade promotion lottery licence (regulation 18(a)) |
| Trade promotion (instant prize) lottery | All prizes are instant prizes | Instant prize lottery licence (regulation 18(b)) |
An instant prize is won on a ticket that can be realised immediately after it is acquired, without a draw, such as a prize found in the packaging of the promoted goods. Value means the retail price, or a reasonable estimate of it, with auction prices used for antiques, artwork, collectibles and second-hand items (regulation 3(1)).
A minor promotion is permitted only if it involves no instant prizes and no prohibited goods or services, as prizes, inducements or the product promoted, and it follows Schedule 5 (regulation 9(1)). The Commissioner, a term defined by the Gambling Administration Act 2019 (SA), may prohibit goods or services by notice in the Gazette (section 7(1)).
What do the minor promotion rules require?
Schedule 5 sets them. Breaching them is an offence by the person conducting the lottery: maximum $5,000, expiation fee $315, with a defence of all reasonable steps (regulation 12). The rules are:
- the promotion runs for no more than 12 months (rule 2);
- every ad states the trader’s name, how to enter, the nature and value of the prizes, and how and where to get the full terms (rule 3);
- subject to any test of knowledge, skill or judgment, each ticket has an equal chance of winning the major prize (rule 4(1));
- a ticket is void if the holder could not lawfully buy the prize or promoted product because of their age (rule 4(2));
- electronic draws use a random number generator, winners are drawn by lot, and each draw happens at the date, time and place in the terms (rules 4(3), 4(5), 4(6) and 5);
- the list of prizes and winners is displayed or published for at least 7 days after the draw (rule 4(7));
- a winner not handed the prize at the draw is told in writing within 7 days how to get it, and terms on unclaimed prizes allow a reasonable opportunity to claim (rule 6); and
- winning entries and the prize list are kept for at least 3 months after the final draw (rule 7).
Information in an ad counts only if it is clearly visible, having regard to the ad’s nature, size or length (regulation 3(5)). A detail behind a “more” link may fail that test.
What do licensed promotions add?
More disclosure and oversight. A major promotion follows Schedule 11 (regulation 20(1)), which requires:
- the licence number in every ad, with how to enter, the nature and value of the prizes, and where to get the full terms (rule 3);
- each draw at the date, time and place specified in the licence (rule 4(6));
- an independent scrutineer, such as a justice of the peace, at any draw with total prizes of $30,000 or more, or where the Commissioner directs (rule 4(7); regulation 3(1));
- publication of the last name, first initial and postcode of each winner of a prize over $250 within 30 days of the final draw, in the location the terms and conditions specify, unless the winner asks otherwise (rule 4(9)); and
- records of entries, prizes and draws kept for at least 3 months (rule 7).
An instant prize promotion follows Schedule 12. Its ads show the trader’s name, licence number, duration, prizes and their value and where to get the full terms, and, except on television, radio or cinema, the licensee’s name and address (rule 3). Winning tickets must be undetectable before they are acquired (rule 4(3)), and winners of prizes over $250 are published within 30 days of the close unless they ask otherwise (rule 4(4)).
What rules apply while the promotion runs?
Four rules catch promoters out.
Prices must not rise. Where entry depends on a purchase, the trader must not charge more than its normal price while the lottery is open: maximum $2,500, expiation fee $315 (regulation 29(1)).
The trader answers for its agency. If a person conducting the lottery for the trader breaches Schedule 5, 11 or 12, the trader is guilty of an offence: maximum $2,500, expiation fee $315 (regulation 29(2)). Its defence is that the offence did not result from any failure on its part to take reasonable care (regulation 29(3)). It should approve the terms, ads and draw process, and keep a record.
Insiders cannot enter. A person involved in conducting or promoting the lottery, as principal, agent or employee, must not enter it: maximum $5,000, expiation fee $315 (regulation 31(2) and (3)).
The advertising rules apply throughout. Ads must not appear to a reasonable observer to be directed at minors, portray minors gambling, or imply that the lottery improves a person’s personal or financial position or social, sexual or employment prospects. They must not exaggerate the prizes or the chances of winning, present the chances falsely, misleadingly or unverifiably, suggest that skill can influence the outcome, or link the lottery with excessive alcohol consumption (regulation 34(1)). Ignoring the Commissioner’s direction to stop, remove or change an ad carries a maximum penalty of $5,000 (regulation 34(2) and (3)).
How must prizes be awarded?
As offered, and on time. A prize offered in connection with the supply or promotion of goods or services must be provided as offered, within the time stated or, if none, within a reasonable time (ACL section 32(2)). That does not apply if the failure was due to another person’s act or omission, or another cause beyond the promoter’s control, and it took reasonable precautions and exercised due diligence (section 32(3)). Nor does it apply if the winner agrees to a replacement (section 32(4)).
For a body corporate, the maximum penalty is the greater of $100,000,000 and three times the benefit or, if that cannot be determined, 30% of adjusted turnover during the breach turnover period. For anyone else it is $2,500,000 (section 224(3) and (3A)).
A cash prize over $1,000 must be offered by cheque or by deposit to an account with an authorised deposit-taking institution, and paid as soon as reasonably practicable after the winner is determined (regulation 32).
Unclaimed prizes are dealt with as the terms provide, subject to the regulations (regulation 33(1)). Otherwise a prize must be delivered unless the winner cannot be contacted after reasonable attempts and it stays unclaimed at the end of the relevant period. It is kept for at least 2 months after the draw for a licensed lottery, or 1 month for a permitted one, then redrawn unless the Commissioner approves another disposal (regulation 33(2), (4) and (6)).
What can the advertising claim?
Only what is accurate about the prizes and the odds. A false or misleading representation that goods are of a particular value contravenes ACL section 29(1)(a), which can catch an overstated prize value, and attracts the section 224 maximums. A misleading claim about the odds or the number of prizes is caught by the prohibition on misleading or deceptive conduct (section 18(1)).
The Lotteries Act adds a criminal offence. A person involved in the conduct or promotion of any lottery, as principal, agent or employee, who acts in a dishonest, deceptive or misleading manner in connection with it faces a maximum penalty of $50,000 or 2 years imprisonment (section 30).
In ACCC v Employsure Pty Ltd [2021] FCAFC 142, the Full Court said many readers absorb an ad’s general thrust fleetingly, and the first impression will often decide what it represents ([98]). It accepted that a reasonable business owner may read such an ad fleetingly, even more likely where the service advertised is free, and that a call to action encourages an immediate response ([153]).
Who commits an offence?
Anyone who conducts, assists in, advertises or takes part in an unlawful lottery. A trade promotion lottery that needs a licence and runs without one is neither licensed nor permitted, so it is unlawful (section 4; regulations 9 and 18).
| Conduct | Maximum penalty | Section |
|---|---|---|
| Conducting, or assisting in the conduct of, an unlawful lottery | $10,000 | 10(1) |
| Agreeing to pay money or provide goods or services in connection with an unlawful lottery | $5,000 (expiation fee $315) | 10(2) |
| Participating in an unlawful lottery | $2,500 (expiation fee $210) | 11(1) |
| Advertising or promoting an unlawful lottery, or a proposal for one | $5,000 (expiation fee $315) | 12(1) |
Advertising means taking any action to publicise or encourage participation (section 12(2)), so the agency running the ads can be exposed alongside the trader. A supplier who agrees to provide the prizes can be caught by section 10(2). It is a defence to prove a belief on reasonable grounds that the lottery was licensed or permitted (section 14), so an agency should see the licence before publishing.
Can entrants’ details be used for marketing?
Only with the right consents. An organisation bound by the Australian Privacy Principles must not use or disclose personal information it holds for direct marketing, subject to the exceptions in APP 7 (APP 7.1). APP 7 does not apply to the extent the Spam Act 2003 or the Do Not Call Register Act 2006 applies (APP 7.8).
Under the Spam Act 2003 (Cth), a message is a commercial electronic message if a purpose of it is to offer, advertise or promote goods or services or their supplier (section 6(1)). A person must not send, or cause to be sent, one with an Australian link, other than a designated commercial electronic message, without the recipient’s consent (section 16(1) and (2)). Consent is express, or reasonably inferred from the conduct and the business and other relationships of the individual or organisation concerned (Schedule 2 clause 2). A separate, unticked consent box on the entry form is the clearest evidence of consent.
Refer-a-friend promotions need care. The business usually holds no consent from the friend, whose address came from someone else, so a promotional message to the friend risks contravening section 16(1). A person knowingly concerned in a contravention, such as the agency running the promotion, also contravenes the Act (section 16(9)).
The small business exemption in the Privacy Act 1988 (Cth) may not help. A small business has annual turnover of $3,000,000 or less for the previous financial year (section 6D(1)), but a business that provides a benefit, service or advantage to collect personal information from anyone else is not a small business operator (section 6D(4)(d)). Extra entries for other people’s details may fall within that exception. The data protection and privacy guide covers privacy notices, and the BPO and call centre agreements guide covers telemarketing.
How similar matters tend to play out
Illustrations of how the law on this page combines on ordinary facts, not predictions. Outcome depends on the documents, the evidence and the court.
Lower range. An Adelaide hair salon runs a social media giveaway: comment to enter, one winner drawn at random, prize $400 of products. With prizes under $5,000 and none instant, it is a minor trade promotion lottery, permitted without a licence if Schedule 5 is followed (regulation 9(1)). The post must name the trader, say how to enter, describe the prize and its value, and say where the full terms are (rule 3).
Middle range. A homewares retailer offers entry into a draw for a $15,000 travel prize with every purchase over $50, so it needs a major trade promotion lottery licence (regulations 3 and 18). The agency running it posts ads without the licence number (Schedule 11 rule 3). The retailer is guilty of an offence for that failure, subject to the reasonable care defence (regulation 29(2) and (3)), and must not lift prices while the promotion runs (regulation 29(1)).
Upper range. An interstate subscription business runs a national refer-a-friend promotion with instant win prizes and a $20,000 final draw but no South Australian licence. With both instant and drawn prizes, it is a major trade promotion lottery whatever the value (regulation 3(1)), and the Act applies because South Australians can enter (section 9(1)). Conducting it carries a maximum penalty of $10,000 (section 10(1)), and its agency faces the advertising offence (section 12(1)). Emails to referred friends who never consented risk contravening the Spam Act (section 16(1)).
How we act on trade promotions
Our trade promotion lawyers act for businesses running promotions and for the agencies that run them. For a business, the aim is a lawful promotion with terms that protect it. For an agency, it is a clear split of responsibility.
| Stage | What happens | What we do |
|---|---|---|
| Mechanics | The promotion is designed. | Advise whether it is a lottery or a game of skill, and whether it needs a licence. |
| Terms | The terms and conditions are drafted. | Draft terms that meet Schedule 5, 11 or 12, with privacy and marketing consents. |
| Advertising | Ads and posts are prepared. | Check the required details, prize and odds claims, and regulation 34. |
| Running | Entries close and winners are drawn. | Advise on draws, exclusions, winner notices and unclaimed prizes. |
| Problems | A prize falls through or a complaint is made. | Advise on substitutes, redraws, regulator inquiries and ACL exposure. |
We cannot promise an outcome, and no lawyer can. We can make sure the promotion is checked before the first ad runs.
Every hour matters. Book a same-day free 30-minute consultation, or call (08) 7094 2021 now.
Trade promotion case law
None of the decisions below concerned a trade promotion; each decided a point that applies to one.
| Case | Court | Principle | Pinpoint |
|---|---|---|---|
| ACCC v Employsure Pty Ltd [2021] FCAFC 142 | Full Federal Court | Ads are judged by their first impression on the audience | [98], [153] |
| Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 | High Court | A signed contractual document binds, read or not | [57] |
| ACCC v Booktopia Pty Ltd [2023] FCA 194 | Federal Court | A term misstating consumers' rights contravened section 29(1)(m) | [15], [18] |
Case notes
ACCC v Employsure Pty Ltd [2021] FCAFC 142
The Full Court held that search ads conveyed a government affiliation the advertiser did not have ([6]), and that the first impression will often decide what an ad represents ([98]).
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52
The joint reasons stated the general rule that a person who signs a document known to contain contractual terms is bound by them, read or not ([57]).
ACCC v Booktopia Pty Ltd [2023] FCA 194
Booktopia accepted that its 2 business day notification term represented that consumers had to notify within that time to have a remedy ([15], [18]). Burley J ordered a $6,000,000 penalty for the section 29(1)(m) contraventions.
Frequently asked questions
Do I need a permit to run a giveaway in South Australia?
Only if the prizes total more than $5,000 or include instant prizes (Lotteries Regulations 2021 (SA) regulations 3 and 18). Drawn prizes worth $5,000 or less need no licence if Schedule 5 is followed (regulation 9(1)).
Is a social media giveaway a trade promotion lottery?
Usually. If it promotes a business, entry is free or by purchase, and chance plays any part in picking the winner, it meets the section 4 definition.
Is a game of skill a lottery?
Not if it is decided only by skill, with no element of chance at any stage. Chance at any stage makes it a lottery, even with skill involved (section 4).
Can a business charge an entry fee for a competition?
Not for a trade promotion lottery, where entry must be free apart from a purchase and capped entry costs (section 4). A paid-entry game of chance is another kind of lottery, unlawful unless licensed or permitted (sections 4 and 6(1)(a)).
Does South Australian law apply to a promotion run from another State?
Yes, if South Australian residents can enter (section 9(1)). It must also be checked against each other State’s and Territory’s rules.
What must a competition advertisement include?
For a minor promotion: the trader’s name, how to enter, the nature and value of the prizes, and where to get the full terms (Schedule 5 rule 3). A licensed major promotion’s ads must show the licence number (Schedule 11 rule 3).
Can staff or agency staff enter?
No. A person involved in conducting or promoting a trade promotion lottery must not enter it (regulation 31(2)).
What happens if a winner cannot be contacted?
The terms decide, if they deal with it (regulation 33(1)). Otherwise the prize is kept at least 1 month after the draw, or 2 months if licensed, then redrawn unless the Commissioner approves another disposal (regulation 33(4) and (6)).
Can a business add entrants to its marketing list?
Only with consent. Marketing emails and texts need the recipient’s consent (Spam Act section 16 and Schedule 2 clause 2), and direct marketing use of personal information is restricted (APP 7.1).
Do I need a trade promotion lawyer?
For any promotion over $5,000, with instant prizes, open nationally or collecting data for marketing, yes. A trade promotion lawyer can check the mechanics, terms and advertising before launch. A free 30-minute consultation will tell you where you stand.