Major Events (Aerial Advertising) Act 2009

“aerial advertising” is defined broadly in s 3 to include skywriting or sign-writing by an aircraft; banners or signs towed by or attached to an aircraft; advertising on an aircraft other than normal manufacturer’s markings; advertising on hang gliders, parachutes, paragliders or similar devices, or on banners attached to such devices or to a person suspended from them; and laser or digital projection of an advertisement into the sky. This covers nearly any method of putting a commercial message into the air above or near an event. “Aircraft” includes airships, blimps, hot-air balloons, helicopters, and ultra-light aircraft. “Advertising” itself means bringing to public attention the availability of goods or services, a brand, or the provider of goods or services.

“event order” is the legal instrument that activates the prohibition. It must specify the day or days, the venue, the start and finish time for each day, the organiser, how the organiser must publicise that the event is covered, and any conditions (s 5(3)). Failure to publicise in accordance with the order does not void the order (s 5(4)), meaning the public may be unaware of the restriction even though the order remains legally effective. The order takes effect on publication in the Gazette or a later specified day (s 9).

“within sight” is a critical but undefined term. It does not use a fixed distance (e.g. 3 nautical miles); it depends on the physical line of sight from the venue. In clear weather, this could extend many kilometres, potentially covering flight paths, neighbouring suburbs, or rural areas. The breadth of the zone is a significant source of uncertainty for aircraft operators and advertisers.

“specified time” means the start and finish time for each day of the event, set out in the event order.

“variation order” (s 8) allows the Minister to change the venue, the times, or the organiser without a fresh application, though the Act does not specify whether the Minister may vary on his or her own initiative or only on application. The variation takes effect on Gazette publication.

“event organiser” is the person or body named in the order. That party has the exclusive power to grant written authorisations for advertising and is the aggrieved party for injunctions and damages.

The concepts are tightly defined, but the crucial term “within sight” is left to judicial interpretation, creating compliance risk.

The Act directly affects event organisers, commercial aerial advertisers, aircraft operators, and the event’s sponsors and broadcast partners. Event organisers must apply for an order, meet the Minister’s criteria, and then manage authorisations. If they fail to publicise, the order remains valid but compliance by third parties becomes harder. Aerial advertisers who typically operate banner-towing aircraft, skywriting planes, blimps, or parachute rigs must check each day whether an event order covers the area they intend to fly over. A breach results in a $250,000 fine and potential civil liability. Aircraft operators who fly for non-advertising purposes (e.g. private flights, sightseeing, cargo) are not directly caught unless they also display advertising, but they may need to avoid the “within sight” zone to prevent allegations that they are causing advertising to be displayed if a passenger or client is engaged in advertising. The Act’s civil remedies affect third parties: any person who suffers loss, injury, or damage from a contravention (including loss of sponsorship) can sue not just the direct advertiser but also aiders, abettors, procurers, and conspirators (s 14). This expands the circle of potential defendants to include advertising agencies, media buyers, and even lessors of aircraft if they are knowingly concerned. Sponsors of rival events or brands that might want to engage in ambush marketing are the primary target. The Minister and the CEO of the administering department are affected as decision-makers and enforcers. The State Administrative Tribunal may review a refusal to make an order (s 7). Lawyers, insurance brokers, and compliance officers for aviation companies must advise on the scope of “within sight” and the likely enforcement approach. The general public is indirectly affected: residents near a venue may have less aerial advertising overhead but also less notice; the taxpaying public funds the administration of the scheme without receiving direct compensation for the restriction on airspace use.

The primary duty is in s 11(1): a person must not display or cause to be displayed aerial advertising within sight of a specified venue during the specified time for a specified event unless the display is authorised in writing by the event organiser, permitted by a condition in the order, or covered by another event order for a different venue. This duty is subject to two exceptions: (a) an emergency; (b) an aircraft used for or in the provision of emergency services (s 11(2)). Additionally, s 11(2A) (inserted by the Major Events Act 2023) exempts aerial advertising displayed in relation to a major event under that Act if authorised in writing by the major event organiser. The duty does not require proof of intention or recklessness; the offence appears to be one of strict liability, though the Criminal Code s 39 (applied to this Act by s 16) makes officers of a body corporate liable if they authorised or permitted the offence.

The event organiser has the right to grant written authorisations. That right is exclusive during the event period; no other entity may licence aerial advertising in the zone except the organiser. The organiser also has the right to apply for an injunction to restrain a contravention (s 12) and to sue for damages (s 14). The Minister has the right to grant, refuse, or vary event orders; to waive or refund the application fee after considering economic benefit (s 10); and to bring proceedings (s 15). An applicant whose order is refused has the right to seek review by the State Administrative Tribunal (s 7). Any person who suffers loss, injury, or damage from a contravention of s 11 has a right to recover damages from the wrongdoer and from secondary parties (s 14). The limitation period for a damages action is three years from the date the cause of action accrued (s 14(4)). The court may award damages for future losses resulting from potential loss of sponsorship (s 14(2)). These rights are powerful: a single banner-tow flight could trigger criminal fines and a damages claim for lost sponsorship that exceeds the fine.

The criminal penalty for an offence under s 11(1) is a fine of $250,000. There is no term of imprisonment. Proceedings are dealt with summarily by a court constituted by a magistrate (s 11(3)). The maximum fine is high relative to the cost of a typical banner-tow operation (often a few thousand dollars) and is designed to deter ambush marketing at high-value events. The offence is likely one of strict liability; the Act does not require proof of knowledge or intent, though the defendant could raise an honest and reasonable mistake defence under common law if not excluded. The burden of proof is on the prosecution to show the act of displaying advertising within sight during the prohibited period. Defences are limited to emergency, emergency services use, and authorisation under the Major Events Act 2023.

Enforcement may be brought by the CEO or a person authorised in writing (s 15(1)). In proceedings, it is presumed that the person bringing them was authorised unless the contrary is proved (s 15(2)). This facilitates enforcement without requiring the prosecution to prove delegation. The Act also creates liability for officers of bodies corporate via s 16, which applies Criminal Code s 39. That provision makes an officer liable if they authorised or permitted the commission of the offence. This means a company director or manager who approves an ambush marketing campaign can be personally fined up to $250,000.

Civil enforcement is separate and can run concurrently with criminal proceedings. The Minister or event organiser may apply to the Supreme Court for an injunction (including an interim injunction) restraining a person from engaging in conduct that contravenes s 11 or related conduct (attempt, conspiracy, aiding, abetting, inducing, being knowingly concerned) (s 12). The court may grant an injunction even if it appears the person will not reoffend, or even if there is no imminent danger of substantial damage. This is a low threshold for an injunction. The court may also grant an interim injunction pending final determination (s 12(3)). Injunctions can be rescinded or varied (s 13).

Damages can be recovered in any court of competent jurisdiction, up to three years after accrual (s 14). A damages award may include future losses from potential loss of sponsorship, which could be substantial for a major event. The availability of both criminal penalty and civil damages creates a double deterrent.

The Act operates alongside the Commonwealth Civil Aviation Act 1988 and regulations under it, which control aircraft operations in Australian airspace. A person who flies a banner-tow in breach of this Act may also breach airspace restrictions imposed by Airservices Australia, but the two regimes are separate; compliance with one does not excuse non-compliance with the other. The Act does not displace or override aviation safety laws; the “emergency” defence in s 11(2) aligns with pilot safety obligations.

The Major Events Act 2023 (WA) s 66 creates a similar but broader regime for “major events” as defined in that Act. Section 11(2A) of this Act provides an exemption: aerial advertising displayed in relation to a major event under the 2023 Act, during a period that s 66 applies, within sight of an area it covers, and authorised in writing by that event’s organiser, is not an offence under this Act. This avoids double prohibition where both Acts apply. The 2023 Act is the later, more comprehensive statute; but this Act remains in force for events not declared under the 2023 Act (e.g. events that do not meet the 2023 Act’s criteria). A single event could be declared under both Acts, but the exemption means only one authorisation system governs.

The Directors’ Liability Reform Act 2023 amended this Act by inserting s 16, which applies Criminal Code s 39 to the s 11(1) offence. That section imposes liability on officers of a body corporate who authorise or permit the offence. This reform standardises director liability across WA statutes.

The State Administrative Tribunal Act 2004 (WA) provides for review of a decision to refuse an event order (s 7). This is a merits review, so the SAT can substitute its own decision for the Minister’s.

The Criminal Code (WA) generally applies to all offences. Section 39 is specifically applied. Other provisions, such as those on attempt and conspiracy, may also apply, but the Act creates separate civil liability for those involved (s 12(1)(b)-(e) and s 14(1)(a)-(d)). The interaction between criminal attempt and civil accessory liability is not addressed, but both could be pursued.

Local government by-laws and planning laws may also restrict aerial advertising or aircraft operations; the Act does not override them. An advertiser may need multiple approvals.

The Act was originally assented to on 21 September 2009 and commenced on 18 January 2010 (except sections 1 and 2). Two later amendments have been made.

The Directors’ Liability Reform Act 2023 (No. 9 of 2023) inserted s 16, which applies Criminal Code s 39 to the s 11 offence. This commenced on 5 April 2023. This change was part of a broader reform across many WA statutes to standardise officer liability. It significantly increased the personal exposure of directors and managers of companies that engage in unauthorised aerial advertising.

The Major Events Act 2023 (No. 12 of 2023) amended s 3 (definitions) (by s 99 of that Act) and amended s 11 by inserting paragraph (2A) to exempt advertising authorised under the new Major Events Act. This commenced on 23 May 2023. The amendment ensures no conflict between the two Acts and clarifies that the newer regime governs its own events. The definitional amendment (not specified in the Act text but noted in s 99) likely added or updated defined terms to align with the 2023 Act.

The compilation table shows no other amendments. The Act has been in force for over a decade with only two amendments, both relatively recent and both expanding liability or altering the interaction with other laws. The core offence and event-order system remain as originally drafted.

The Act itself contains no references to any court decisions, and no reported judgments interpreting its provisions are listed in the compilation or notes. As of the compilation date, there is no publicly recorded litigation history under this Act in Western Australian courts. This does not mean no cases have been brought; minor infringement proceedings in the Magistrates Court may not be reported, and injunction applications in the Supreme Court are not always published. The civil damages provision (s 14) has apparently not produced any published appellate decision. The absence of case law means key terms such as “within sight” have not been judicially defined, leaving uncertainty for practitioners. The State Administrative Tribunal may have reviewed refusal decisions but those are not widely reported. The lack of litigation may indicate that the Act is rarely enforced, or that the compliance rate is high because the penalty is sufficiently deterrent. Alternatively, the cost of litigation relative to the fine may discourage defendants from contesting. Practitioners should note that the Act’s provisions are largely untested, and any significant prosecution or civil action will be a test case that could define the scope of the prohibition.

“Within sight” is undefined and potentially vast. On a clear day, an aircraft can be seen from a venue many kilometres away. Advertisers cannot rely on a distance limit; they must assess whether the advertisement would be visible to someone at the venue. A banner flown 20 km away but still within line of sight of the venue may be caught. The Minister could specify conditions in the order that limit the zone (e.g. “within 5 km of the venue”), but is not required to do so. Without such condition, the default is line of sight.

No automatic public notice. The event order must specify how the organiser must publicise the order (s 5(3)(e)), but failure to publicise does not void the order (s 5(4)). An advertiser could be prosecuted even though the organiser buried the notice in a minor newspaper or failed to issue any press release. The only guaranteed publication is in the Gazette, which is not widely read by aircraft operators. Checking the Gazette daily is the only safe way to know if an order has been made or varied.

No requirement for the advertiser to have knowledge. The offence wording does not include any mental element such as “knowingly” or “intentionally.” It is a straightforward prohibition: “must not display.” Unless the court implies a defence of honest and reasonable mistake of fact (which is possible for strict liability offences), an operator who did not know an order existed still commits the offence. Given the high penalty, this is a serious risk.

Authorisation must be in writing. Oral or implied permission from the event organiser is not a defence. A text message or email may suffice, but s 11(1)(a) uses “written authorisation,” which likely means a signed document or at least a clear written communication. The organiser should provide a formal letter or certificate.

Variation orders may be made without notice. Section 8 does not require the Minister to consult or notify affected parties before varying the venue, times, or organiser. An order in the Gazette can take effect immediately (s 9). An advertiser who checked the order yesterday may be caught by a variation published today.

Officer liability is personal. Section 16, inserted in 2023, exposes individual directors to the full $250,000 fine for a body corporate’s offence. This is a significant expansion of personal risk for executives of aviation or marketing companies.

Damages for future sponsorship loss. Section 14(2) explicitly permits recovery of future losses resulting from potential loss of sponsorship. This means a single unauthorised banner flight could trigger a civil claim for millions of dollars if the event’s main sponsor renegotiates or withdraws. The causal link may be hard to prove, but the legislative intent is clear.

Limitation period for damages is three years, not six. Section 14(4) sets three years from the date the cause of action accrued. Plaintiffs must act quickly. Practitioners should calendar the limitation date.

Parallel proceedings. Criminal and civil actions can run concurrently. A person may be fined $250,000 and also ordered to pay damages in a separate civil suit for the same conduct.

For advertisers and aircraft operators: maintain a daily check of the Western Australian Government Gazette for event orders and variation orders. Subscribe to alerts if available. Before each flight that will be within visible range of any major venue (sports stadium, outdoor concert venue, racecourse, etc.), verify whether an event order is in force for that location and date. If an order exists, obtain written authorisation from the event organiser before displaying any advertising. If authorisation is not possible, avoid the area entirely during the specified times. Plan flight paths to stay out of line of sight. Keep a record of all checks and authorisations. Consider using GPS tracking to show the aircraft did not enter the zone.

For event organisers: apply for an event order well in advance of the event. Complete the application in the form and manner approved by the CEO and pay the prescribed fee (s 4). Provide the Minister with evidence that the event is major at the international/national level, that commercial arrangements exist that could be harmed, and that operations could be adversely affected by aerial advertising. Also provide data on attendance, media coverage, economic benefit, and contribution to the State’s profile (s 5(2)). In the application, specify a clear mechanism for publicising the order (e.g. press release to aviation industry bodies, notice to relevant aerodromes, online posting) and ensure it is carried out. Draft conditions for the order that define the “within sight” zone more precisely if desired (s 5(3)(f)). For example, limit the zone to a radius of 5 km or to altitudes below 5000 feet. Prepare a written authorisation form for sponsors and partners to use. Keep a register of all authorisations granted. Consider obtaining an injunction quickly if unauthorised advertising appears; the Minister may also apply.

For lawyers advising clients: note the absence of case law on “within sight”. Advise clients to adopt a conservative interpretation: if a person at the venue could see the advertisement with the naked eye, it is likely caught. If the client intends to fly near a venue during an event, seek a private ruling from the CEO if possible, or apply for a variation to the order to exclude the flight. For body corporate clients, ensure the board and senior management understand the personal liability exposure under s 16. Implement a compliance procedure that requires pre-flight clearance for any aerial advertising near a likely event venue. Review insurance policies to confirm coverage for both fines and civil damages.