The Law Handbook 2024

Chapter 7.2: Consumer protection laws 699 If there are any amendments to the agreement, they must be signed by both parties (s 81 ACL). Consumer cancellation rights The ACL contains express consumer rights, including a 10-day cooling-off right and the right to terminate an agreement after the 10-day cooling- off period in various circumstances. It also contains provisions outlining how consumers may exercise their termination rights and the effect of termination. Consumers have a right to terminate the agreement during four time periods. 1 The consumer can cool-off on their decision to enter into the agreement within 10 business days. 2 If the supplier contravenes its obligations relating to the permitted hours for negotiation, disclosure of purpose and identity, or ceasing to negotiate on request, the consumer can terminate the agreement within three months. 3 If the supplier contravenes its obligations relating to informing the consumer of the cooling-off period or the required contents of an unsolicited consumer agreement, the consumer can terminate the agreement within six months. 4 The consumer can terminate the agreement within a period stated by the agreement (s 82 ACL). A consumer can terminate the agreement in each of the circumstances outlined above by giving oral or written notice of termination to the supplier by using: • the termination notice that the consumer is required to be given; or • another form of written notice, regardless of its form or content. A consumer can give the supplier written notice personally or by post, fax or email (s 82 ACL). A consumer needs to produce evidence to prove that they have sent a written notice of termination (e.g. a post office receipt, a fax transmission, record, a copy of the email and/or a copy of the written notice of termination). An agreement that is terminated is deemed to have been rescinded by mutual consent and any related contract or instrument is void. The agreement is terminated even if the supplier has not received the notice of termination, or the consumer has used or consumed the goods and services (s 83 ACL). Post-contractual rights and obligations A supplier must not supply goods or services to a consumer under an unsolicited consumer agreement or accept or require any payment during the 10-day cooling-off period (s 86 ACL). Goods can be supplied under an unsolicited consumer agreement within the 10-day cooling-off period if the total price payable for the goods under the agreement is $500 or less (reg 95 Competition and Consumer Regulations 2010 (Cth)). If an unsolicited consumer agreement is terminated: • the supplier must immediately return or refund any money or payment; • the consumer must return to the supplier any goods that the consumer has not already consumed, or notify the supplier of the place where the supplier may collect the goods. If the supplier does not collect the goods within 30 days after termination of the contract, the goods become the property of the consumer (s 85 ACL). Case example ACCC v AGL Sales Pty Ltd [2013] FCA 1030 The ACCC alleged that Mr Kansagara (a sales representative for AGL Sales’s subcontractor) contravened section 75 of the ACL (s 75) by starting to negotiate with Ms Plant (the consumer) despite the presence of a ‘do not knock’ sign on Ms Plant’s front door. The court noted that: • section 75 does not provide expressly the manner in which the requestmust bemade; therefore a ‘request’ can be made orally, in writing or by conduct; • the provision should be construed broadly as it is directed at unsolicited visits by salespersons to consumers in their homes and is designed to protect consumers due to the inherent vulnerability of the relationship; • a ‘do not knock’ sign could constitute a request, even if the request was not made in the context of face-to-face communication between the consumer and sales representative; and • a ‘do not knock’ sign does not contain an express request to leave the premises but, depending on the facts, it could constitute an implied request. AGL Sales was ordered to pay a $1.55 million penalty for its conduct, and its sub-contractor was ordered to pay $200 000.