Stop Ticket Scalping in Australia

Go in the Poll to say how much you would pay for a Ticket – click on "Worldwide Polls" on the left. Report ticket scalping yourself.

The Law – part two

Stop Ticket Scalping in Australia wrote to the Department of Commerce in Western Australia this year, to ask the following question, relevant to the Australian Consumer Law (ACL) which is a law that became effective across Australia in 2011.

Please advise me what the “right” to sell the ticket means legally, and if the ACL provisions prevent people from selling tickets to shows on eBay using the “Buy-it Now” mechanism at prices above their purchase price.

A satisfactory answer was not received.  Instead of actually directly answering the actual question, of which wouldn’t you say the question is pretty clear cut, the person whom responded wrote a huge amount about the summary findings of the “Ticket Scalping Report 2010” which was quite unnecessary, as the sender of the question had read the report, and being able to read for comprehension, did understand what was read, so didn’t need parts of it to be regurgitated.

To read the response of the Department of Commerce, Western Australia, go to   THIS   post here please.

What does the Australian Consumer Law cover?

The ACL includes:

  • a new national unfair contract terms law covering standard form contracts;
  • a new national law guaranteeing consumer rights when buying goods and services, which replaces existing laws on conditions and warranties;
  • a new national product safety law and enforcement system;
  • a new national law for unsolicited consumer agreements, which replaces existing State and Territory laws on door-to-door sales and other direct marketing;
  • simple national rules for lay-by agreements; and
  • new penalties, enforcement powers and consumer redress.

This page   here   has the Law in a “nutshell” – i.e. as a PDF brochure, right at the very bottom of the page.

The Trade Practices Act 1974 (TPA) has been re-named the Competition and Consumer Act 2010, and the ACL is set out in Schedule 2 of the C&C Act.   The C&C Act can be read online at the ComLaw site by clicking    here.

You can download the 3 volumes of the Act by clicking on the Download tab.  Schedule 2 is in Volume 3.   Chapter 3 begins on page 115 and covers specific protections for consumers. Page 125 talks about having the right to accept payment for unsolicited goods or services.

If Stop Ticket Scalping in Australia is correct in understanding the intent of provision 40 of the Act, Ticket Scalpers DO NOT HAVE THE RIGHT to receive payment above the selling price by an authorised ticket vendor, that states amongst its terms and conditions, that tickets must NOT be onsold above their purchase price.

40 Assertion of right to payment for unsolicited goods or services

40 Assertion of right to payment for unsolicited goods or services
(1) A person must not, in trade or commerce, assert a right to payment
from another person for unsolicited goods unless the person has
reasonable cause to believe that there is a right to the payment.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(2) A person must not, in trade or commerce, assert a right to payment
from another person for unsolicited services unless the person has
reasonable cause to believe that there is a right to the payment.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(3) A person must not, in trade or commerce, send to another person
an invoice or other document that:
(a) states the amount of a payment, or sets out the charge, for
supplying unsolicited goods or unsolicited services; and
(b) does not contain a warning statement that complies with the
requirements set out in the regulations;
unless the person has reasonable cause to believe that there is a
right to the payment or charge.
Note: A pecuniary penalty may be imposed for a contravention of this
subsection.
(4) In a proceeding against a person in relation to a contravention of
this section, the person bears the onus of proving that the person
ComLaw Authoritative had reasonable cause to believe that there was a right to the
payment or charge.

However, Clause 69 on page 150, states in part, about the definiton of “unsolicited consumer agreements”, the following.

69 Meaning of unsolicited consumer agreement

(1) An agreement is an unsolicited consumer agreement if:
(a) it is for the supply, in trade or commerce, of goods or
services to a consumer; and
(b) it is made as a result of negotiations between a dealer and the
consumer:
(i) in each other’s presence at a place other than the
business or trade premises of the supplier of the goods
or services; or
(ii) by telephone;
whether or not they are the only negotiations that precede the
making of the agreement; and
(c) the consumer did not invite the dealer to come to that place,
or to make a telephone call, for the purposes of entering into
negotiations relating to the supply of those goods or services
(whether or not the consumer made such an invitation in
relation to a different supply); and
(d) the total price paid or payable by the consumer under the
agreement:
(i) is not ascertainable at the time the agreement is made;
or
(ii) if it is ascertainable at that time—is more than $100 or
such other amount prescribed by the regulations.

However, tickets are a right to entry, and if a buyer looks for them and buys them from a seller that advertises them, such as on eBay, then the tickets are NOT unsolicited services, rather they are advertised “items” offered for sale, so they are not covered by the clause above.

Page 30 of the Ticket Scalping Report 2010 clearly states that the ACL contains certain protection for consumers, including the following.

it provides statutory guarantees for purchases of goods and services — for example, a seller will be required to guarantee they will supply a ticket with reasonable care and skill, they have they have a right to sell the ticket and that the ticket will be fit for purpose, free from defects and match its description;

Clause 151 on page 210 of the ACL states

151 False or misleading representations about goods or services

(1) A person commits an offence if the person, in trade or commerce,
in connection with the supply or possible supply of goods or
services or in connection with the promotion by any means of the
supply or use of goods or services:
(a) makes a false or misleading representation that goods are of a
particular standard, quality, value, grade, composition, style
or model or have had a particular history or particular
previous use; or
(b) makes a false or misleading representation that services are
of a particular standard, quality, value or grade; or
(c) makes a false or misleading representation that goods are
new; or
(d) makes a false or misleading representation that a particular
person has agreed to acquire goods or services; or
(e) makes a false or misleading representation that purports to be
a testimonial by any person relating to goods or services; or
(f) makes a false or misleading representation concerning:
(i) a testimonial by any person; or
(ii) a representation that purports to be such a testimonial;
relating to goods or services; or
(g) makes a false or misleading representation that goods or
services have sponsorship, approval, performance
characteristics, accessories, uses or benefits; or
(h) makes a false or misleading representation that the person
making the representation has a sponsorship, approval or
affiliation; or
(i) makes a false or misleading representation with respect to the
price of goods or services; or

(j) makes a false or misleading representation concerning the
availability of facilities for the repair of goods or of spare
parts for goods; or
(k) makes a false or misleading representation concerning the
place of origin of goods; or
(l) makes a false or misleading representation concerning the
need for any goods or services; or
(m) makes a false or misleading representation concerning the
existence, exclusion or effect of any condition, warranty,
guarantee, right or remedy (including a guarantee under
Division 1 of Part 3-2); or
(n) makes a false or misleading representation concerning a
requirement to pay for a contractual right that:
(i) is wholly or partly equivalent to any condition,
warranty, guarantee, right or remedy (including a
guarantee under Division 1 of Part 3-2); and
(ii) a person has under a law of the Commonwealth, a State
or a Territory (other than an unwritten law).

Stop Ticket Scalping in Australia would like to know if (m) above means that sellers whom do not advertise the original purchase prices of tickets which they want to on-sell for a profit at Buy-it Now prices, at the time they are trying to onsell the tickets, are in contravention of the ACL, and committing an offence under the above provision.  In our opinion, they are making a false representation about the term of the original ticket sale by misleading the buyer into thinking they have the right to sell the ticket for a price in excess of the original selling price.

By not doing this, are they misleading would-be buyers of the tickets into thinking or believing that they, the ticket scalper, have the right to onsell the ticket at whatever prices they list them for at Buy-it Now prices (way above their original purchase prices)?

If you can help interpret the law in the context of STSA, please write to STSA.  Thank you.  See the page   “Law Students wanted – Help STSA”   also.  Positive and constructive comments only will be regarded.

Too bad, that the Department of Commerce did not answer the question “what does the right to sell the ticket mean legally?”   Stop Ticket Scalping in Australia is now looking for a law student or a practicing lawyer to help answer this question.

Stop Ticket Scalping in Australia has also written to both eBay Australia and to Ticketek about concerns with ticket scalping, and will share their responses in the next two posts.

 

UPDATE – APRIL 2014

The Australian Senate Economics Reference Committee published an enquiry into Ticket Scalping in March.

http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Economics/Ticket_scalping_2013/Report/index

Chapter 4 states in part:

4.51 The Act specifically prohibits conduct liable to mislead the public as to the nature, characteristics, suitability for their purpose or the quantity of services.65

This provision means that it is ‘unlawful for an unauthorised on-seller of tickets to, among other things, misrepresent whether the tickets they on-sell are authorised or will provide entry to a particular event’.66 The Treasury noted further:

Consumer guarantees exist to ensure that consumers get what they pay for.

Under the Australian Consumer Law all goods purchased by consumers are covered by statutory consumer guarantees. Under these provisions, a supplier must ensure, among other things, that goods and services they supply in trade or commerce, are fit for purpose. Ordinarily, tickets for events are acquired for the purpose of facilitating access to certain events.

This means a ticket scalper offering a ticket for more than its face value or selling it thus, of which the ticket sale or agreement was dependent upon the term/condition not to resell the ticket for a premium, IS misrepresenting that they have the right to sell the ticket, AND

can be PROSECUTED under the AUSTRALIAN CONSUMER LAW.

The problem is the WILL of the Event Organisers in taking measures to be able to make such prosecutions.  They can contact the owners of online selling platforms like eBay and ask them to remove listings in contravention of the ACL, but often do not wish to invest the time and money to do so and to cancel the tickets and then have the problem of potential empty seats, if those tickets are not then used or re-sold at face value.

The Football Federation of Australia ( FFA ) has said that its hands are tied if it does not know the exact seat number in order to cancel a ticket.

NSW has a Bill in place at the time of this update, which will make it compulsory for sellers other than authorised sellers to advertise or show tickets with exact seat numbers.

Breaches of the ACL should be reported to both the Event Organiser and the:

Australian Competition and Consumer Commission

South Australian Senator Nick Xenophon made a submission to the Committee –

While the Australian Consumer Law provides some protection to consumers at a federal level in the form of prohibitions against misleading and deceptive conduct and representations, it is apparent these provisions are not acting as deterrents to scalpers. As noted by the Coalition of Major Professional and Participation Sports Inc (COMPPS):

 

The Australian Consumer law has provided a framework of general principles for consumers to uphold but it fails to provide and effective mechanism to prevent or punish ticket scalping. Without clearly defined regulations within the Competition and Consumer Act it is difficult to pursue ticket scalping as on offence under the Australian Consumer Law.

The lack of workable and effective regulation is allowing ticket scalpers to act with relative impunity in the Australian market. Victoria has had anti-scalping legislation in place for over three years, however during that time only five individuals and one operator of a ticket selling website have been found guilty of offences pursuant to the legislation.

Senator Xenophon made the following recommendation –

1.14 That there be federal laws amending the Australian Consumer Law to outlaw ticket scalping and to empower consumers on the basis set out in paragraphs a) to f) above   [ see the Report at the Link above ]

However, the Senate’s findings were to make 6 recommendations which do not include amending the ACL or further regulatory controls. Therefore, breaches of the ticket holder’s agreement not to scalp a ticket can be reported to the ACCC under the ACL.

See  THE  unhelpful response from the Australian Competition and Consumer Commission also, on Consumer Guarantees relating possibly to tickets.

 

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Information

This entry was posted on 28/07/2012 by in Legislation and tagged , , , , .

Categories

Blog Stats

  • 23,386 hits

Go to a Month for previous posts

July 2012
S M T W T F S
    Oct »
1234567
891011121314
15161718192021
22232425262728
293031  

Enter your email address to follow this blog and receive notifications of new posts by email.

Join 14 other followers

%d bloggers like this: