Fair Trading Amendment (Ticket Scalping and Gift Cards) Act 2017 No 52

An Act to amend the Fair Trading Act 1987 with respect to the supply of tickets to sporting or entertainment events and expiry dates for gift cards.

1 Name of Act

This Act is the Fair Trading Amendment (Ticket Scalping and Gift Cards) Act 2017.

2 Commencement

This Act commences on a day or days to be appointed by proclamation.

Schedule 1 Amendment of Fair Trading Act 1987 No 68 relating to ticket scalping

[1] Part 4A

Insert after Part 4:

  

Part 4A Regulation of event ticket transactions

Division 1 Preliminary

58A Definitions

In this Part:

authorised seller, in relation to an event or a ticket for an event, means:

(a)  if the event organiser has authorised a person to supply the ticket on behalf of the event organiser, or to resupply the ticket after acquiring it from the authorised seller—that person, or

(b)  in any other case—any event organiser for the event.

event organiser—see section 58C.

resale restriction—see section 58B.

58B Tickets to which Part applies

(1)  This Part applies to tickets to sporting or entertainment events in New South Wales that are subject to a resale restriction.

(2)  A resale restriction is a term or condition of a ticket that limits the circumstances in which the ticket may be resold or prohibits resale of the ticket.

(3)  A term or condition that limits the circumstances in which a ticket may be resold or prohibits resale of the ticket includes a term or condition that provides for the ticket to be cancelled or rendered invalid if the ticket is resold, or if the ticket is resold in certain circumstances.

58C Event organisers

(1)  The event organiser, in relation to an event, is the person who authorises the first supply of tickets for the event, whether or not that person is also the performer, the promoter of the event or the operator of the event venue.

(2)  The regulations may declare any other person (or class of persons) to be the event organiser in relation to the event or in relation to any class of events to which the event belongs.

Division 2 Resale of tickets

58D Definitions

In this Division:

first purchaser, in relation to a ticket, means the person to whom the ticket is first supplied by an authorised seller.

original acquisition cost—see section 58E.

original supply cost—see section 58E.

prohibited advertisement—see section 58F.

sell includes offer or advertise for sale.

supply includes offer to supply and advertise for supply.

ticket resale advertisement means an advertisement for the sale of a ticket by any person other than the authorised seller.

transaction cost—see section 58E.

58E Original supply cost and original acquisition cost—meaning

(1)  The original supply cost of a ticket is the amount for which the ticket was sold to the first purchaser by an authorised seller.

(2)  The original acquisition cost of a ticket is the original supply cost of the ticket, plus the transaction cost.

(3)  The transaction cost is the cost (not exceeding 10% of the original supply cost) of any commission, booking fee, payment surcharge or ticket delivery fee incurred by the first purchaser of the ticket in connection with the purchase of the ticket.

(4)  If no amount was paid by the first purchaser of the ticket in consideration for the acquisition of the ticket, the original supply cost and the original acquisition cost are each $0.

58F Prohibited advertisement—meaning

(1)  A prohibited advertisement is a ticket resale advertisement that does not comply with this section.

(2)  A ticket resale advertisement must not specify an amount for the sale of the ticket that is more than 110% of the original supply cost of the ticket.

(3)  A ticket resale advertisement must specify the following particulars:

(a)  the original supply cost of the ticket,

(b)  details of the location from which the ticket holder is authorised to view the event (including, for example, any bay number, row number and seat number for the ticket).

58G Prohibition on ticket resale profit

(1)  The first purchaser of a ticket must not sell the ticket to any other person for an amount that exceeds the original acquisition cost of the ticket.

Maximum penalty: 1,000 penalty units (in the case of a corporation) or 200 penalty units (in the case of an individual).

(2)  A person (other than the first purchaser) must not sell a ticket to any other person for an amount that the person knows, or ought reasonably to know, exceeds the original acquisition cost of the ticket.

Maximum penalty: 1,000 penalty units (in the case of a corporation) or 200 penalty units (in the case of an individual).

58H Supply of tickets not to be made contingent on other purchases

(1)  A person (the supplier) must not supply a ticket to any other person (the recipient) under an agreement that makes the liability of the supplier to supply the ticket to the recipient contingent on payment by the recipient to the supplier of any amount in consideration for the provision to the recipient of any other goods or services.

Maximum penalty: 1,000 penalty units (in the case of a corporation) or 200 penalty units (in the case of an individual).

(2)  This section does not apply to the supply of a ticket under an agreement authorised by the event organiser or under any other agreement of a kind prescribed by the regulations.

58I Ticket resale advertising

(1)  The owner of an advertising publication must ensure that no prohibited advertisement is published in the publication.

Maximum penalty: 1,000 penalty units (in the case of a corporation) or 200 penalty units (in the case of an individual).

(2)  It is a defence to a prosecution for an offence of failing to ensure that no prohibited advertisement is published in an advertising publication if the defendant establishes that:

(a)  the agreement between the defendant and the person placing the ticket resale advertisement was subject to terms or conditions prohibiting the publication of prohibited advertisements, and

(b)  the defendant, as soon as practicable after becoming aware that the prohibited advertisement had been published in the publication, took reasonable steps to ensure that the advertisement was removed from the publication, and

(c)  the defendant took such other steps as were reasonable in the circumstances to ensure that no prohibited advertisement was published in the publication.

(3)  The regulations may exclude an advertisement or publication of a kind described by the regulations from the application of this section.

(4)  In this section:

advertisement means any advertisement, whether paid or not.

advertising publication means any website, newspaper, magazine or other publication containing advertisements to which members of the public have access (whether or not a member of the public is first required to pay a fee or subscription, register or become a member).

owner, of an advertising publication, includes any person who conducts the business or undertaking of the advertising publication (but does not include any person of a class prescribed by the regulations).

58J Certain resale restrictions void

A resale restriction is void to the extent that it provides for the ticket to be cancelled or rendered invalid if the ticket is resold for an amount not exceeding 110% of the original supply cost of the ticket.

Division 3 Online purchase of tickets

58K Prohibited conduct in relation to use of ticketing websites

(1)  A person must not engage in any prohibited conduct in relation to the use of a ticketing website.

Maximum penalty: 1,000 penalty units (in the case of a corporation) or 200 penalty units (in the case of an individual).

(2)  A person engages in prohibited conduct in relation to the use of a ticketing website if the person uses any software to enable or assist the person to circumvent the security measures of the website and to purchase tickets in contravention of the terms of use of the website that are published on the website.

(3)  The security measures of a website include any measures of a kind prescribed by the regulations.

Division 4 Public disclosure of ticketing information

58L Minister may require notification of number of tickets available for general public sale

(1)  The Minister may, by order published on the NSW legislation website, require a specified event organiser (or a specified class of event organisers) to give public notice of the total number of tickets for the event that are to be made available by authorised sellers for general public sale.

(2)  The notice must be given within the time and in the manner specified in the order.

(3)  The total number of tickets specified in a notice required under this section must be a number that the event organiser believes, on reasonable grounds, is not more than 10% greater or less than the total number of tickets that are to be made available for general public sale before the day on which the event is held (including any number of tickets made available before the notice is given).

(4)  A ticket is not made available by an authorised seller for general public sale if the authorised seller requires a person to do either of the following in order to acquire the ticket:

(a)  pay a fee (in addition to the price of the ticket and any transaction cost such as a commission, booking fee, payment surcharge or ticket delivery fee),

(b)  register for access to any pre-sale, publication, competition or other special offer.

(5)  The regulations may make further provision for the circumstances in which a ticket is, or is not, made available for general public sale for the purposes of this section.

(6)  The Minister may not make an order under this section unless:

(a)  the Minister is satisfied that each event organiser for an event to which the proposed order applies has been notified (whether by public notice or otherwise) of the Minister’s intent to make the order, and

(b)  the event organiser has been given a reasonable opportunity to make submissions in relation to the proposed order, and

(c)  the Minister has considered any such submission, and

(d)  the Minister is satisfied that it is in the public interest to make the order.

(7)  An event organiser must not fail to comply with a requirement made under this section.

Maximum penalty: 1,000 penalty units (in the case of a corporation) or 200 penalty units (in the case of an individual).

[2] Section 61 Interpretation

Insert “, Part 4A” after “Part 4” in the definition of local contravention in section 61 (1).

[3] Schedule 5 Savings and transitional provisions

Insert at the end of the Schedule, with appropriate Part and clause numbering:

  

Part Provision consequent on enactment of Fair Trading Amendment (Ticket Scalping and Gift Cards) Act 2017 —ticket scalping amendments

Application of amendments

Section 58G, 58H, 58I or 58J (as inserted by the Fair Trading Amendment (Ticket Scalping and Gift Cards) Act 2017) does not apply to a ticket sold or otherwise supplied to a first purchaser by an authorised seller before the commencement of the section.

Schedule 2 (Repealed)

sch 2: Rep 1987 No 15, sec 30C.