In short
Competition and promotion terms need to identify whether the mechanic is a game of chance requiring a state or territory trade promotion permit (still required in the ACT, NSW and South Australia, though NSW has moved to a lower-touch notification regime), set out entry conditions, eligibility exclusions and the prize draw or judging process in enough detail to survive a dispute, and comply with the Spam Act 2003 (Cth) and Privacy Act 1988 (Cth) where entry involves collecting personal information or subscribing entrants to marketing.
Permits still matter — even though the rules have changed
Trade promotion permit requirements have been progressively wound back across Australia, but they haven't disappeared everywhere. A promotion that is a genuine game of chance (as opposed to a game of skill, such as a 'best answer in 25 words or less' competition, which generally doesn't require a permit anywhere) can still require a permit or notification in the ACT, NSW and South Australia depending on the total prize pool value, while other states and territories have abolished their permit schemes. We check the mechanic and total prize value against the current requirements in every jurisdiction the promotion is open to, because running a national promotion without checking each applicable state's current position is one of the most common — and most avoidable — compliance gaps we see.
Skill versus chance and why the distinction is drafted deliberately
Where a permit is a genuine risk, we sometimes structure the mechanic as a game of skill rather than pure chance — requiring a judged answer or creative entry rather than a random draw — which removes the permit requirement in jurisdictions that still apply it. This isn't a loophole so much as a real structural choice: the judging criteria need to be genuine and applied consistently, because a 'skill' competition that's actually decided by random selection dressed up with a token skill question can be found not to be a genuine skill-based promotion at all.
Entry conditions, eligibility and exclusions
We draft eligibility criteria (age, residency, exclusion of employees and their immediate families, one entry per person unless otherwise stated) and entry mechanics precisely enough to prevent disputes about who actually entered validly, and we build in the promoter's right to disqualify fraudulent, automated or otherwise invalid entries. Ambiguous entry conditions are the single biggest source of post-draw disputes, particularly on social media promotions where entries can be manipulated through bulk or bot activity.
Draw, judging and prize fulfilment terms
The terms need to specify exactly when and how the draw or judging occurs, who conducts it, how the winner is notified and the timeframe for claiming the prize, what happens if a prize is unclaimed, and whether a redraw is available. Where permits apply, some jurisdictions prescribe minimum requirements for these mechanics (such as independent verification of the draw), and we build the terms to meet those requirements rather than relying on generic language that might not satisfy the specific permit conditions.
Spam Act and Privacy Act overlay
Where entry requires providing an email address or phone number, and especially where entrants are automatically opted into marketing communications as a condition of entry, the terms need to be consistent with the Spam Act 2003 (Cth) consent requirements (consent to entry into a competition is not automatically consent to ongoing marketing) and the Privacy Act 1988 (Cth) notification obligations about how entrant information will be collected, used and disclosed, including to any promotion partner or sponsor. We draft a clear, separate opt-in for marketing rather than bundling it into the entry mechanic, since the ACCC and OAIC both treat bundled consent as a live enforcement issue.
What the fixed fee covers
- Assessment of skill versus chance and applicable state permit requirements
- Permit application preparation where required (ACT, NSW, South Australia)
- Drafting of entry conditions, eligibility criteria and disqualification rights
- Draw, judging and prize fulfilment terms
- Spam Act and Privacy Act compliant consent and data handling clauses
Mistakes we see
- Running a national chance-based promotion without checking each state's current permit position
- Bundling marketing opt-in into the competition entry mechanic as a single non-severable consent
- Leaving disqualification and fraudulent entry rights out of the terms
- Dressing up a chance-based draw as a 'skill' competition with a token, non-genuine question
- Failing to specify an unclaimed prize process, leaving the promoter without a clear fallback
Who this is for
- Retail and consumer brands running social media giveaways
- Businesses running a national promotion across multiple states
- Marketing agencies drafting promotions on behalf of clients
- Franchisors coordinating a promotion across franchise networks
Frequently asked questions
- Do I need a permit for a giveaway on Instagram?
- It depends on the prize value, the jurisdictions the promotion is open to, and whether it's a game of chance or skill. A pure random-draw giveaway open to NSW, ACT or South Australian residents can still trigger permit or notification obligations depending on current thresholds, even though most other states have abolished the requirement.
- Can I make marketing sign-up a condition of entering a competition?
- You can make entry conditional on providing contact details, but bundling automatic marketing consent into entry without a separate opt-in is inconsistent with the Spam Act's consent requirements and creates enforcement risk, so we draft these as distinct steps.
- What's the difference between a game of skill and a game of chance for permit purposes?
- A game of skill requires a genuine judged element (such as answering a question or submitting creative content assessed against criteria) that determines the winner, rather than a random draw. Genuine skill-based competitions generally don't require a trade promotion permit anywhere in Australia.
- What happens if a winner doesn't claim their prize?
- This should be dealt with expressly in the terms — typically a claim period after which the prize can be redrawn or forfeited, and where a permit applies, some jurisdictions prescribe how unclaimed prizes must be handled.
- Can I exclude international entrants or require Australian residency?
- Yes, eligibility criteria including residency and age can be set as the promoter chooses, provided they're clearly disclosed in the terms before entry and applied consistently.
Related