Ticket Scalping Act 2021

The Act’s central operative term is “ticket scalping”, defined in s 3 as selling a ticket for an amount exceeding 110% of the “original ticket price”. The original ticket price is not simply the face value; s 3 defines it as the amount for which the ticket was first offered at retail by the event organiser or an authorised ticket seller, and includes any booking fee or commission paid. This means a reseller must know not only the advertised price but also any ancillary fees charged at the point of first sale. The 10% margin operates net of those fees: if the face price was $100 with a $10 booking fee ($110 original), the maximum resale price is $121.

The Act’s application is conditional. Section 6(1) states the Act applies only to tickets that are “subject to a resale restriction”. Section 5 defines a resale restriction broadly as any term or condition that limits the circumstances in which the ticket may be resold, including terms providing for cancellation, surrender or invalidation on resale. This creates a significant structural point: if an event organiser does not impose any restriction on resale, the Act does not apply to that ticket at all , no price cap, no advertising requirements, no anti-bot provisions. An organiser could theoretically opt out of the entire regime by simply not including any resale limitation in the ticket terms. However, doing so would also surrender any contractual control over resale, including the ability to cancel tickets sold on secondary markets at any price.

The term “event” (s 3) covers a wide range of gatherings: sporting, entertainment (concert, theatre, opera, dance), festivals, cultural events, arena events, and any other form of public performance, exhibition, display or public gathering. The “event organiser” is the person who authorises the first supply of tickets, and may be prescribed by regulation for particular classes. “Authorised ticket seller” includes both the organiser’s appointed agent and, where no agent is appointed, the organiser itself.

Section 12 introduces the concept of “security measures” of a website, which may be prescribed by regulation. The offence under s 12 is using software to circumvent those measures to purchase tickets in breach of the website’s published terms of use. The terms must be published on the site; unpublished or hidden terms will not support a prosecution.

The Act primarily affects individuals and entities that resell tickets for WA events. That includes casual ticket holders who decide after purchase that they cannot attend, as well as professional scalpers and secondary ticket platforms. The 10% margin above the original ticket price (including booking fees) is a hard cap; reselling at a higher price is a strict liability offence subject to a $20,000 fine. Resellers must also refrain from packaging tickets with unrelated goods or services (s 9), other than where the event organiser authorises the bundle. This directly affects businesses that operate travel-and-ticket packages, hotel-and-event bundles, or memberships that include ticket priority.

Advertising platforms are distinctly affected. Section 11 imposes a positive obligation on the “owner” of any “advertising publication” , defined broadly to include websites, online facilities, newspapers, magazines and any service containing advertisements accessible to the public , to ensure that no prohibited advertisement appears. This includes marketplaces like eBay, Gumtree, Facebook Marketplace, Ticketmaster Resale, and classifieds in print media. The defence in s 11(2) is narrow and cumulative, requiring the platform to have a contractual prohibition on prohibited ads, to take reasonable steps to remove ads promptly upon becoming aware, and to take other reasonable steps to prevent publication. Compliance burdens will fall heavily on smaller operators who lack automated screening tools.

Event organisers and authorised ticket sellers are affected in two ways. First, s 8 invalidates any resale restriction that would penalise a resale at or below 110% of the original price. An organiser cannot cancel a ticket merely because it was resold within that price band, even if the terms of sale purported to prohibit resale entirely. Second, s 9(2)(a) allows organisers to authorise bundled ticket sales, giving them a carve-out not available to other resellers. Organisers may also be subject to complaints and investigation by the Commissioner under s 13.

Software developers and users of automated purchasing tools are directly targeted by s 12. Anyone who uses software to bypass a ticketing website’s security measures to buy tickets in breach of the site’s published terms commits an offence punishable by a $100,000 fine. This affects not only commercial scalpers but also hobbyists using browser automation for personal convenience, though prosecutorial discretion may limit enforcement to systematic abuse.

The Commissioner for Consumer Protection (defined by reference to the Fair Trading Act 2010) acquires expanded functions under s 13, including educational activities, receiving complaints, investigating potential breaches, and publishing warnings that identify persons if satisfied it is in the public interest. The Commissioner’s investigatory and enforcement powers are drawn from the Fair Trading Act 2010 via s 14, which incorporates provisions on powers, search and seizure, criminal and civil proceedings, and miscellaneous matters.

Duties. Section 7 imposes a duty on any person not to sell a ticket for more than 110% of the original ticket price. This is an offence punishable by a $20,000 fine. The duty applies regardless of whether the seller is aware of the original price; there is no knowledge requirement. Section 9 imposes a duty not to make the supply of a ticket contingent on payment for other goods or services, unless the arrangement is authorised by the event organiser or prescribed by regulation. This prohibits tying a ticket sale to, for example, membership fees, merchandise, or accommodation. Section 10 requires that a ticket resale advertisement not specify a price above 110% of the original, and must state the original price and the seat location. Section 11 imposes a duty on owners of advertising publications to ensure no prohibited advertisement appears. Section 12 prohibits using software to circumvent website security measures to purchase tickets in contravention of published terms.

Rights. The Act confers a statutory right on a ticket holder to resell a ticket at up to 110% of the original price without the ticket being cancelled, surrendered or invalidated by the event organiser solely because of that resale. Section 8 voids any resale restriction to the extent it would otherwise allow such consequences. This does not, however, prevent an organiser from imposing other conditions on entry (e.g., photo ID matching requirements) that are not triggered by the price of resale. The holder also has the right to advertise the ticket at a compliant price and to include the required disclosure information without fear of prosecution, provided the price is within the cap.

The defence available to advertising platforms under s 11(2) is a right in a qualified sense: it is a defence to a charge, not an exemption. The platform must prove on the balance of probabilities that four elements are met: (a) the advertisement was received in the ordinary course of business; (b) the publishing agreement prohibited prohibited advertisements; (c) as soon as practicable after becoming aware of the ad, the platform took reasonable steps to remove it; and (d) the platform took other reasonable steps to prevent publication in the first place. Any failure on one element leaves the platform convicted.

The Act does not create a private right of action for a buyer who overpays. Enforcement is public only: through the Commissioner’s investigation and prosecution powers, infringement notices under s 15, and criminal proceedings under the Criminal Procedure Act 2004. A buyer who pays more than 110% of the original price cannot recover the excess under this Act; recourses may lie in other areas of law such as the Australian Consumer Law for misleading conduct (if the seller misrepresented the original price), but that is outside the text.

The Act establishes a tiered penalty structure. Offences under s 7 (selling above 110%), s 9(1) (bundling) and s 11(1) (publishing prohibited advertisements) each carry a maximum fine of $20,000. The most serious penalty attaches to s 12: using software to circumvent website security measures carries a maximum fine of $100,000. Regulations made under s 16 may prescribe offences with penalties not exceeding $5,000. All penalties appear to be expressed as maximum fines payable on conviction; there is no imprisonment term provided for any offence.

Enforcement is primarily the responsibility of the Commissioner for Consumer Protection, whose functions under s 13 include receiving complaints, investigating potential breaches, and taking “any action … considered to be appropriate by the Commissioner”. The Commissioner also has the power to publish statements identifying and warning about conduct or practices in breach of the Act, including naming specific persons where satisfied it is in the public interest (s 13(2)). This naming power is a significant reputational enforcement tool alongside formal proceedings.

The procedural machinery for enforcement is incorporated from the Fair Trading Act 2010 via s 14. That Act’s provisions on powers of the Commissioner (ss 60, 61), investigation and enforcement (Part 6, excluding ss 64, 65 and Division 4A), criminal and civil proceedings (Part 7, with exclusions), and miscellaneous matters (Part 8, excluding s 116) are applied as if they were part of this Act, with specified modifications. This means the Commissioner can exercise powers of entry, search and seizure, require production of documents, and obtain court orders such as injunctions, enforceable undertakings, and compensation orders (though the latter would be limited to losses caused by contraventions). The incorporated provisions also include the power to accept enforceable undertakings and to seek civil penalties in some contexts, though the Act itself does not specify civil penalties for its own offences , likely the $20,000 criminal fines are the only monetary penalty.

Section 15 provides for infringement notices (on-the-spot fines) as an alternative to prosecution. The notice must be served within 21 days after the authorised officer forms the opinion that sufficient evidence exists, and within six months of the alleged offence. This short window for issuing notices (21 days from forming the opinion) may limit the practical use of infringement notices in complex investigations. The Criminal Procedure Act 2004 Part 2 is modified to give effect to this.

The practical enforcement burden falls on the Commissioner’s resources. Only events in Western Australia with resale restrictions are within jurisdiction, but conduct outside the state is captured (s 6(2)). This extra-territorial reach means the Commissioner could theoretically pursue a reseller based overseas who sells a ticket to a WA event online, though practical enforcement against foreign persons is limited.

The Act does not operate in a vacuum. Section 14 expressly incorporates parts of the Fair Trading Act 2010 (WA) for investigation, enforcement and court procedure. This means that the Commissioner’s powers to gather evidence, apply for search warrants, and commence proceedings are those found in the Fair Trading Act, adapted for the Ticket Scalping Act. The interaction ensures consistency in enforcement machinery across consumer protection and trading laws in Western Australia.

The Act’s relationship with the Australian Consumer Law (ACL) as applied in WA (through the Fair Trading Act 2010) is relevant but not explicitly addressed in the source text. For example, a reseller who advertises a ticket at a price above 110% of the original commits an offence under s 10 and may also engage in misleading or deceptive conduct under the ACL if the advertisement misrepresents the price or the ticket’s characteristics. The Commissioner could pursue both offences. Similarly, a reseller who uses software to circumvent a ticketing website’s security may also breach the Competition and Consumer Act 2010 (Cth) provisions on anti-competitive conduct or the Criminal Code provisions on unauthorised access to computer systems. The Act does not purport to exhaust the field; other laws continue to apply.

The interaction with contract law is nuanced. Section 8 renders void certain resale restrictions, but only to the extent they would penalise a resale at or below 110% of the original price. Other contractual restrictions on resale , such as a requirement that the ticket be used only by the original purchaser, or a ban on resale altogether where the resale price is above 110% , may remain enforceable. For example, an event organiser could still lawfully cancel a ticket resold for $500 if the original price was $100 (a 400% markup), because s 8 only voids restrictions as they apply to resales within the 110% band. The Act does not create a right to resell; it merely removes a contractual penalty for reselling within a defined price range.

For advertising publications, s 11 creates a potential conflict with the implied freedom of political communication in the Commonwealth Constitution, as it requires platforms to remove ticket resale advertisements that do not comply with price and disclosure requirements. A platform could be fined for publishing an advertisement that expresses political dissent about event pricing, if that advertisement is a ticket resale ad that does not comply. However, the Act’s narrow application to tickets with resale restrictions likely limits any constitutional challenge.

National coordination is absent. The Act applies only to events in Western Australia. Other states (e.g., New South Wales, Victoria) have their own ticket scalping laws with different caps and provisions. A national secondary ticket platform must comply with multiple, potentially conflicting regimes for events in different states. The extra-territorial reach in s 6(2) may also create jurisdictional overlap and confusion for online marketplaces.

The Ticket Scalping Act 2021 is a single enactment: Act No. 17 of 2021, assented on 9 September 2021. Part 1 (preliminary) commenced on the date of Royal Assent (9 September 2021), and the remainder of the Act commenced on 10 September 2021 (s 2). The compilation table in the Act shows no subsequent amendments as at the date of publication. There is no amendment history recorded in the source text. The Act contains a mandatory review provision in s 17: the Minister must review the operation and effectiveness of the Act as soon as practicable after the fifth anniversary of the commencement of that section, with a report to be laid before Parliament within 12 months of that anniversary. That review, due around 2026, must specifically address whether sections 7, 9 and 12 have been effective in reducing ticket scalping. No review has been published yet, and no amending legislation appears in the source.

The source text contains no references to any litigation under or concerning the Ticket Scalping Act 2021. As the Act commenced only in September 2021 and applies to a relatively narrow class of tickets (those for events in Western Australia with resale restrictions), it is plausible that no reported judicial decisions have yet been handed down. The lack of litigation history may reflect limited enforcement, the recency of the Act, or the fact that most contraventions are resolved by infringement notices or without court proceedings. However, potential areas of future litigation include: constitutional challenges to the price control as an acquisition of property on unjust terms (s 51(xxxi) of the Constitution, though the Act is a state law and the limitation runs only against Commonwealth acquisitions) or as an impermissible burden on interstate trade and commerce (s 92); challenges to the extra-territorial reach (s 6(2)) as beyond state legislative power; challenges to the validity of the publisher liability provision (s 11) as imposing unreasonable obligations on intermediaries; and disputes over what constitutes “reasonable steps” under the s 11(2) defence. No such cases have been reported as of the date of this analysis.

Several provisions contain traps for the unwary. The most significant is the conditional application of the entire Act. Section 6(1) provides that “This Act applies to tickets for admission to events in Western Australia that are subject to a resale restriction.” This means that if an event organiser decides not to impose any resale restriction , for example, by issuing tickets with no terms at all about resale, or by expressly permitting unlimited resale , then the Act does not apply to those tickets. The price cap in s 7, the advertising prohibitions in s 10, the publisher liability in s 11, and the anti-bot provision in s 12 would all be inoperative for those tickets. An organiser could effectively opt out of the entire regulatory regime simply by omitting any resale limitation. However, the cost of doing so is that the organiser would have no contractual basis to cancel any ticket resold at any price, even at huge markups. The Act thus creates a perverse incentive for organisers to carefully calibrate their terms.

A second trap lies in the definition of “original ticket price”. Section 3 includes “any booking fee or other commission payable to an authorised ticket seller”. A reseller who only knows the face value of the ticket may unwittingly price above the legal limit if the original sale included a substantial fee. For example, if a concert ticket had a face value of $100 but the authorised ticket seller charged a $20 booking fee, the original ticket price is $120, and the maximum resale price is $132. A reseller who sells for $130 may assume they are within the 10% margin on $100 ($110) but in fact exceed the 110% of the true original price.

A third trap is that s 8 voids resale restrictions only “to the extent that” they provide for cancellation if the ticket is resold at or below 110% of the original price. The residual power to cancel for resale above that threshold remains. Also, s 8 does not void other restrictions that are not triggered by the price of resale. For instance, a ticket term that says “this ticket is non-transferable” is a resale restriction under s 5, but s 8 only voids it if it would cancel the ticket for a resale at ≤110%. The term may still be enforceable to cancel a ticket resold at a higher price, or to deny admission even if the resale price is within the cap (though s 8 prevents cancellation “if the ticket is resold” at that price, arguably covering the entire act of resale). Careful reading: s 8 voids the restriction to the extent it provides for cancellation etc. “if the ticket is resold for an amount not exceeding 110%”. So if the restriction says “ticket is non-transferable and will be cancelled if resold”, it is void only insofar as it applies to resales at ≤110%. That still leaves a potential claim by the organiser that the resale itself is a breach of contract, even if they cannot cancel. The interplay remains uncertain.

A fourth gotcha: the anti-bundling provision in s 9 applies even if the ticket is sold at a price below the 110% cap. A seller cannot make the supply of a ticket contingent on purchasing other goods or services, regardless of the price. The exception for event organisers means that only the primary seller (or its agents) can legitimately offer a ticket package. A secondary seller who bundles a ticket with a hotel booking commits an offence even if the total price is under 110% of the ticket’s original price.

Fifth, the publisher defence in s 11(2) requires the platform to have an agreement with the advertiser that “prohibited the publication of prohibited advertisements”. The platform must impose a contractual ban. If the platform’s terms of service merely state that sellers must comply with all applicable laws, that may not be sufficient , it must specifically prohibit prohibited advertisements. Further, the platform must take “other steps as were reasonable in the circumstances to ensure that no prohibited advertisement was published”. A platform that does not proactively screen ads (e.g., by automated keyword checks or manual review) may fail this element.

Sixth, the anti-bot provision in s 12 prohibits using software to circumvent security measures “to purchase tickets in contravention of the published terms of use of the website”. This means that if the website’s terms permit automated purchases (e.g., by authorised resellers), using software would not contravene the terms and thus would not be an offence. Conversely, if the terms are silent on automated purchases, is there a contravention? The phrase “in contravention of the published terms” suggests the terms must specifically prohibit the use; an omission does not constitute a contravention. This leaves room for ticketing platforms to define their own rules.

For individual resellers. Before reselling a ticket for a WA event with a resale restriction, determine the original ticket price including all booking fees and commissions paid by the first buyer (s 3). If that figure is not known, the reseller cannot safely set a price. The maximum sale price is 110% of that amount. Advertisements must state the original price and the seat location (bay, row, seat number) (s 10). Do not bundle the ticket with any other goods or services, unless the event organiser has authorised the bundle in writing (s 9). Do not use any bot or automation software to purchase tickets from a ticketing website if the website’s published terms prohibit automated purchasing (s 12). Even if the resale price is within the cap, all advertisement and bundling rules apply. Keep records of the original ticket price and the resale advertisement to demonstrate compliance in the event of an investigation.

For advertising platforms and publishers. Implement a terms-of-service clause that expressly prohibits the publication of ticket resale advertisements that do not comply with s 10 (i.e., ads that either list a price above 110% of the original price, or fail to state the original price and seat location). The prohibition must be specific to “prohibited advertisements” as defined , a general “comply with all laws” clause may not satisfy s 11(2)(b). Establish a procedure for reviewing advertisements before publication where practicable, or deploy automated screening tools that flag ads containing ticket-related keywords and check for price and disclosure information. Designate a person or team responsible for handling complaints and notifications. Upon becoming aware of a non-compliant advertisement, remove it “as soon as practicable” (s 11(2)(c)). Maintain logs of all steps taken, including the time of notification and removal. The defence is cumulative; all four elements must be met. Publishers should also train staff and monitor emerging patterns (e.g., scalpers using coded language in ads) to satisfy the “other reasonable steps” requirement in s 11(2)(d).

For event organisers and authorised ticket sellers. Decide whether to include a resale restriction in the terms of the ticket. If no restriction is included, the Act does not apply to those tickets, but the organiser then has no contractual basis to cancel or invalidate tickets resold at any price. If a restriction is included, note that s 8 will void it insofar as it would penalise resales at or below 110% of the original price. The organiser may still enforce restrictions on resale above that threshold, and may impose other conditions not related to price (e.g., photo ID requirements) that do not amount to a resale restriction. Authorised ticket sellers should clearly communicate the original ticket price including all fees on the original sale, so that resellers can comply with the price cap. If the organiser wishes to authorise a bundled ticket offer (s 9(2)(a)), provide written authorisation to the seller.

For users of ticketing software. Before using any software to assist in purchasing tickets from a website, check the website’s published terms of use. If those terms prohibit circumventing security measures or using automated purchasing tools, do not use such software. The $100,000 penalty in s 12 applies to “any software” that enables or assists circumvention, not merely sophisticated bots. Browser extensions that auto-fill forms or refresh pages may fall within the prohibition if they circumvent security measures (such as CAPTCHAs) in breach of terms. The safest approach is to purchase tickets only through the website’s manual interface, or to obtain explicit permission from the website operator.