Does Australian law require affiliates to disclose their relationship with the merchant?

Yes. Australian affiliates who are paid to promote a merchant's products or services are required to clearly disclose their commercial relationship with the merchant, both under the Australian Consumer Law (ACL) and the Australian Association of National Advertisers (AANA) Code of Ethics. Under s 18 of the ACL, conduct (including omissions) that creates a false impression about the nature of content — for example, presenting a paid promotional post as an independent review — is misleading or deceptive and is prohibited. The AANA Code of Ethics similarly requires that advertising and marketing communications be clearly distinguishable from editorial, journalistic, or organic content. In practice, Australian affiliates who publish blog posts, social media content, YouTube videos, podcasts, or email newsletters containing affiliate links must include a clear and prominent disclosure — such as 'This post contains affiliate links. I may earn a commission if you purchase through my link' or the hashtags '#ad' or '#sponsored' on social media. The ACCC (the regulator for the ACL) has specifically flagged influencer and affiliate disclosures as an enforcement priority. Affiliates who fail to make adequate disclosures risk ACCC investigation, infringement notices, and reputational damage.

What are the Spam Act 2003 requirements for affiliate email marketing in Australia?

The Spam Act 2003 (Cth) imposes three primary requirements on commercial electronic messages (CEMs) sent by or on behalf of Australian affiliates. First, consent: CEMs (including marketing emails, SMS messages, and direct messages) must only be sent to recipients who have given express or inferred consent to receive them. Express consent requires the recipient to have actively opted in to receive commercial messages. Inferred consent arises where a person has an existing business relationship with the sender and would reasonably expect to receive such messages. Second, identification: CEMs must clearly identify the individual or organisation responsible for sending the message and provide accurate contact details. An affiliate who sends emails on behalf of a merchant must identify both themselves (as the sender) and the merchant (whose products are being promoted). Third, unsubscribe: CEMs must include a functional unsubscribe mechanism that allows the recipient to opt out of receiving future messages. The unsubscribe request must be processed within 5 business days, and no further messages may be sent to that address after opt-out. The Australian Communications and Media Authority (ACMA) administers the Spam Act and may issue infringement notices and seek civil penalties for systemic breaches, with maximum penalties of AUD $2.1 million per day for bodies corporate.

How does cookie tracking work and what happens if the cookie expires?

Cookie tracking is the primary method used to attribute sales to a specific affiliate in an online affiliate program. When a user clicks on an affiliate's unique tracking link, the merchant's website (or a third-party affiliate platform) places a cookie — a small data file — on the user's browser. The cookie stores a record of which affiliate referred the user. If the user subsequently visits the merchant's website and completes a purchase within the cookie's validity period (the 'cookie duration'), the purchase is attributed to the affiliate and a commission is generated. If the user does not complete the purchase before the cookie expires, or if the user clears their browser cookies, deletes the cookie, or switches to a different browser or device, the affiliate receives no credit for any subsequent purchase. Cookie duration is a key commercial term negotiated between the merchant and affiliate — longer durations (60–90 days) favour the affiliate, while shorter durations (7–14 days) favour the merchant. The Affiliate Agreement should clearly state the agreed cookie duration and the method of resolving attribution disputes (typically, the merchant's tracking system is authoritative).

Is an affiliate commission subject to GST in Australia?

Yes, affiliate commissions are generally subject to GST in Australia if the affiliate is registered (or required to be registered) for GST under the A New Tax System (Goods and Services Tax) Act 1999 (Cth). An affiliate whose annual GST turnover is AUD $75,000 or more is required to register for GST. Where the affiliate is GST-registered, the commission payable by the merchant is consideration for a taxable supply of marketing services, and the affiliate must charge GST at 10% on top of the agreed commission and issue a valid tax invoice. Merchant and affiliate may agree to a recipient-created tax invoice (RCTI) arrangement, under which the merchant issues the tax invoice on behalf of the affiliate for each commission payment — this is particularly convenient where commission payments are made monthly and the affiliate runs a high volume of small transactions. The commission relates to promoting Australian-based products or services to Australian consumers, so all supplies are generally taxable supplies (GST is not zero-rated for domestic transactions). Parties should seek advice from a registered tax agent about their specific GST obligations and whether an RCTI arrangement is appropriate.

Affiliate Agreement (Australia) — Australia

Create an Australian Affiliate Agreement for performance-based marketing arrangements. Covers commission structure (percentage or fixed per sale), cookie duration and tracking attribution, approved channels, brand guidelines and IP licence, prohibited conduct (Spam Act 2003, Australian Consumer Law, AANA Code compliance), GST treatment, payment schedule, and termination. Suitable for e-commerce, SaaS, and online businesses across all Australian states and territories. Affiliate marketing is one of Australia's fastest-growing digital marketing channels. An affiliate arrangement allows a Merchant (a business selling products or services online) to partner with Affiliates (publishers, content creators, influencers, comparison websites, cashback platforms, or email marketers) who promote the Merchant's products to their audiences in exchange for a performance-based commission on sales generated. Unlike traditional advertising, the Merchant pays only for results — commissions are payable only when a qualifying sale is completed through the Affiliate's unique tracking link. Australian affiliate marketing is subject to a layered regulatory framework. The Competition and Consumer Act 2010 (Cth) (CCA) and the Australian Consumer Law (ACL) are the most significant regulatory instruments. The ACL prohibits misleading or deceptive conduct (s 18), false representations (s 29), and unconscionable conduct (s 21). Affiliates who make false or misleading representations about a Merchant's products — for example, by fabricating reviews, making unsubstantiated claims, or creating a false impression about product performance — may be liable under the ACL. Both the Affiliate and the Merchant can face liability if the Merchant knew of or permitted the misleading conduct. The Spam Act 2003 (Cth) applies to all commercial electronic messages (including email marketing, SMS marketing, and direct messages) sent by Affiliates promoting the Merchant's products. The Spam Act prohibits sending unsolicited commercial electronic messages, requires messages to include accurate sender identification and a working unsubscribe facility, and applies to messages sent to Australian addresses regardless of where the sender is located. Affiliates who conduct email marketing campaigns must comply with the Spam Act or risk civil penalties of up to AUD $2.1 million per day for systemic breaches. The Privacy Act 1988 (Cth) and the Australian Privacy Principles (APPs) apply where Affiliates collect, use, or disclose personal information about consumers (such as email addresses, browsing behaviour, or purchase history). Affiliates operating websites, apps, or email lists must maintain a compliant Privacy Policy and handle personal information in accordance with the APPs. The Australian Association of National Advertisers (AANA) Code of Ethics requires that sponsored or affiliated content be clearly identified as advertising. Affiliates who create blog posts, social media content, or reviews promoting the Merchant's products without disclosing the commercial relationship may breach the AANA Code and the ACL's prohibition on misleading conduct. Common disclosure practices include labelling content as '#ad', '#sponsored', or 'This post contains affiliate links' in a clear and conspicuous location.

What Is a Affiliate Agreement (Australia)?

An Australian Affiliate Agreement is a contract between a Merchant (a business that sells products or services online) and an Affiliate (a publisher, content creator, website operator, influencer, comparison site, or email marketer) that governs the terms on which the Affiliate promotes the Merchant's products and earns a commission on sales generated through the Affiliate's unique tracking links. Affiliate marketing is a performance-based channel: the Merchant pays for results, not for clicks or impressions. A commission is earned only when a qualifying sale — a completed purchase by a customer who clicked the Affiliate's tracking link within the agreed cookie duration — is confirmed.

Affiliate marketing in Australia has grown significantly alongside the expansion of e-commerce, social media marketing, and content publishing. Common affiliate arrangements include: retail e-commerce affiliates (comparison websites, cashback platforms, and deal sites that earn commissions on product sales); SaaS and subscription affiliates (bloggers, YouTubers, and newsletter publishers who earn recurring commissions on software or subscription sales); financial product affiliates (comparison websites that earn commissions for product applications and sign-ups — though these are subject to additional AFSL requirements); travel and hospitality affiliates (travel bloggers, booking aggregators, and accommodation comparison sites); and health and fitness affiliates (content creators who promote supplements, gym memberships, or coaching programs).

The legal framework governing Australian affiliate marketing is primarily the Competition and Consumer Act 2010 (Cth) (including the Australian Consumer Law), the Spam Act 2003 (Cth), the Privacy Act 1988 (Cth), and the AANA Code of Ethics. All affiliates operating in Australia must ensure their marketing conduct complies with these frameworks — including making adequate disclosures of commercial relationships, avoiding misleading or deceptive representations, and complying with spam and privacy laws.

A written Affiliate Agreement protects both the Merchant (by establishing brand guidelines, prohibited conduct, and commission forfeiture rights) and the Affiliate (by clearly defining the commission structure, payment schedule, and attribution methodology).

When Do You Need a Affiliate Agreement (Australia)?

An Affiliate Agreement is needed whenever a Merchant operates an affiliate marketing program and wishes to formally engage individual affiliates. Common scenarios where an Affiliate Agreement is essential include the following.

E-commerce and retail: An online retailer engaging bloggers, deal sites, cashback platforms, and comparison websites to promote its product range, paying a commission on each sale generated through tracking links.

SaaS and software: A software company engaging content creators, technology bloggers, and YouTube reviewers to promote its subscription products, paying a recurring commission on monthly or annual subscription revenue.

Digital products: An online course creator, author, or digital download seller engaging email marketers and affiliate networks to promote their products, paying a percentage commission on each sale.

Travel and hospitality: A hotel group, tour operator, or travel booking platform engaging travel bloggers, social media influencers, and booking aggregators to drive bookings, paying a commission on confirmed reservations.

Health, wellness, and fitness: A supplement brand, gym chain, or coaching platform engaging health influencers and content creators to promote its products and services.

Financial comparison: A financial comparison website engaging affiliates to drive traffic and applications for financial products — noting the additional AFSL licensing requirements that may apply in this sector.

In all these scenarios, a written Affiliate Agreement is essential to establish the tracking methodology, commission structure, payment terms, brand usage rules, prohibited conduct standards, and termination rights.

What to Include in Your Affiliate Agreement (Australia)

A comprehensive Australian Affiliate Agreement should address the following key elements.

Products and Approved Channels — The agreement must specify which of the Merchant's products or services the Affiliate is authorised to promote, and on which channels (websites, email lists, social media accounts). The Merchant should have the right to approve or reject new channels.

Commission Structure — The commission rate or amount (fixed per sale or percentage of sale value), whether commission is calculated inclusive or exclusive of GST, and any tiered or bonus commission arrangements must be clearly specified.

Tracking and Cookie Duration — The tracking methodology (unique affiliate links, promo codes, pixel tracking), the agreed cookie duration (commonly 30, 60, or 90 days), and the rules for resolving attribution disputes must be clearly defined.

Qualifying Sale Definition — The agreement must define exactly what constitutes a qualifying sale that triggers a commission — including any exclusions for refunded, reversed, or fraudulently generated sales.

Payment Schedule and Minimum Threshold — When are commissions paid (monthly, fortnightly)? What is the minimum payment threshold (e.g. AUD $50)? How are payments made (bank transfer)?

Brand Guidelines and IP Licence — The Merchant should grant a limited, non-exclusive licence to use its trade marks and Brand Assets, subject to brand guidelines. The Affiliate must use Brand Assets only as directed and must include all required disclosures.

Prohibited Conduct — The agreement must specify prohibited marketing methods (spam, cookie stuffing, fake reviews, bidding on brand keywords, advertising on inappropriate platforms) and the consequences of breach (commission forfeiture and immediate termination).

Compliance with Australian Laws — The agreement must require the Affiliate to comply with the Australian Consumer Law (no misleading representations), the Spam Act 2003 (consent-based email marketing), the Privacy Act 1988 (handling customer data), and AANA Code disclosure requirements.

Termination — Either party should have the right to terminate on notice, with the Merchant having the right to immediately terminate for brand guideline breaches or prohibited conduct.

Frequently Asked Questions

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