The Law Handbook 2024

698 Section 7: Consumers, contracts, the internet and copyright * In relation to the third element, an invitation to quote a price for a good or service is not taken to be an invitation to enter negotiations (s 69(2) ACL). Also, a consumer who provides their contact details other than for the predominant purpose of entering into negotiations, or contacts the dealer in connection with an unsuccessful attempt by the dealer to contact the consumer, is not taken to have invited the dealer to enter negotiations (s 69(1A) ACL). This provision overcomes a loophole where consumers are taken to have invited a salesperson to visit them in their home, even where the invitation was engineered by the seller (e.g. when consumers give their contact details to the seller for another reason, such as a competition entry form filled out at a shopping centre). The Treasury Laws Amendment (Australian Consumer Law Review) Act 2018 (Cth) amended the ACL to clarify that unsolicited agreements may be made in a public place, even though a consumer has not invited the dealer to come to that place. This overcomes some court decisions that found that the definition of ‘unsolicited consumer agreement’ would not cover sales in a public place. A dealer can be, but need not be, a supplier; however, a supplier will be liable for the actions of a dealer in circumstances where the dealer is not the supplier (ss 71, 77 ACL). There is also a rebuttable presumption (taken to be true unless proved otherwise) that an agreement or a proposed agreement is an unsolicited consumer agreement (s 70 ACL). Obligations and rights Approaching consumers The ACL sets out the permitted hours for calling on (as opposed to telephoning) a consumer: Monday to Friday, 9 am to 6 pm and Saturday, 9 am to 5 pm. Dealers are prohibited from calling on a consumer on a Sunday or a public holiday. The permitted hours specified in the ACL are default times and may be varied by individual states and territories by regulation under their respective application laws (s 73 ACL). A dealer who calls on a consumer must, prior to commencing negotiations, clearly advise their purpose for calling, and provide information about their identity (s 74 ACL). A dealer who calls at any premises must leave immediately if so requested by the occupier, any person acting with the occupier’s authority, or the prospective consumer. If such a request is made by the prospective consumer, that consumer must not be contacted for a similar purpose for at least 30 days after the request was made, but only in relation to that supplier (s 75 ACL). The Federal Court has held that a clearly displayed ‘do not knock’ sign amounts to a request to leave under the ACL (s 75). Prior to making an agreement with a consumer, a dealer must give the consumer information about: • the consumer’s right to terminate the agreement during the termination periods; and • the way in which the person can exercise that right (s 76 ACL). Disclosure The ACL sets out the express disclosure obligations and other obligations about the making of agree­ ments. A dealer must give the consumer either: • if the agreement was made in person – a copy of the agreement after the agreement has been signed by the consumer; or • if the agreement was made by telephone – a document evidencing the agreement, within five days after the agreement was made (or a longer period agreed by the parties). This document can be given personally, by post, or with the consumer’s consent, by email (s 78 ACL). There are also formal requirements for a valid agreement. The documents that are required to be given to the consumer must comply with the following requirements: • it must be printed clearly or typewritten, setting out the full terms of the agreement, the total consideration and postal or delivery charges; • on the front page, it must have a notice advising of the cooling-off period; • it must be accompanied by a notice that the consumer can use to cancel the agreement; • it must state the full name, business address, email address and fax number of the supplier; and • it must be transparent (s 79 ACL). If an agreement was made in person (i.e. not over the telephone), the agreement must comply with additional requirements: • it must be signed by the consumer; • if it is signed by a person on the supplier’s behalf, it must state that person’s name, business address and email address (s 80 ACL).