Areas regulated by the Australian Consumer Law
The Australian Consumer Law (ACL) also regulates the following areas:
- bait advertising (s 35): a person must not trick customers by offering only a few items at a low price;
- offering gifts and prizes (s 32): a person who offers rebates, gifts, prizes or other free items in connection with the sale of goods or services must honour that offer;
- wrongfully accepting payments (s 36): a person must not accept payment for goods or services if they do not intend to supply the goods or services, or know they cannot supply the goods or services, or cannot supply the goods or services in a timely manner;
- pyramid selling (ss 44–46): this is outlawed as a scheme, except where there is an exemption order because the goods or services supplied under the scheme bear a reasonable relationship to the payments made under the scheme;
- liability for unsolicited goods and services (ss 41–42): in general, a person does not have to pay for unsolicited goods or services;
- unsolicited cards (s 39): credit or debit cards should only be sent to people if they have specifically requested them;
- asserting right to payment (s 40): a person must not assert a right to payment for unsolicited goods or services, or unauthorised entries or advertisements;
- multiple pricing (s 47): if a supplier displays multiple prices for goods at the same time, they must sell the goods for the lowest price or withdraw the goods from sale until the pricing is corrected;
- referral selling (s 49): inducing purchases by promising future commissions for subsequent sales is prohibited in certain circumstances; and
- harassment and coercion (s 50): a person must not harass or coerce another person in connection with a supply of goods or services (this provision has primarily been used in relation to debt collection).
A proof of transaction must be given to a consumer for supplies of goods or services valued at or above $75 or, if below that value, on request. Also, an itemised bill must be provided to a consumer who has been supplied with services at their request (s 100). Tax invoices provided under the GST law meet the requirements of a proof of transaction under the ACL (s 101).
The ACL also contains the new consumer guarantees regime that provides rights to consumers when suppliers breach a range of consumer guarantees.
For a detailed discussion, see Chapter 7.3: Consumer guarantees.
Fair debt collection laws
In addition to the prohibition against harassment and coercion in the ACL, additional fair debt collection provisions are in the Australian Consumer Law and Fair Trading Act 2012 (Vic).
These ban anyone collecting debt in Victoria from engaging in certain practices, including:
- entering or threatening to enter a private residence without lawful authority; using any threat, deception or misrepresentation to obtain consent to enter a private residence; and refusing to leave a private residence or workplace when asked to do so;
- exposing or threatening to expose a person or a member of that person’s family to ridicule or intimidation;
- using a document that looks like an official document but is not;
- impersonating a government employee or agent;
- attempting or threatening to possess any property to which they are not entitled (e.g. when collecting a debt, you must not say you are going to seize a home or other property that you cannot legally take);
- disclosing or threatening to disclose debt information, without the debtor’s consent, to any person without a legitimate interest in the information;
- making a false or misleading representation regarding the nature or extent of a debt, or the consequences of not paying a debt (e.g. falsely representing that a debt is a fine or other penalty imposed by law, or that a person has committed an offence);
- threatening to make a false or misleading credit report;
- contacting a person by a method that they have asked not to be used, unless there is no other means available (e.g. you must not contact a debtor at their workplace when they have asked to be contacted only at home, or directly when they have asked that all communications be handled by their lawyer or financial counsellor);
- contacting a person about a debt after they have advised in writing that no further communication should be made about that debt (this applies unless the debt collector contacts the debtor through an action issued by a court or VCAT or are threatening the debtor with court or VCAT action that the creditor intends to take. This provision is helpful for those without assets and of a low income to prevent ongoing harassment by debt collectors. The Consumer Action Law Centre has a sample letter that can be used for people in this situation to request not to be contacted;
- communicating with a person under 18 about a debt, if the person is not the debtor;
- demanding payment of a debt from someone without having a reasonable belief that they are the debtor (e.g. demanding payment from every ‘J Smith’ who resides in a suburb in an attempt to collect a debt owed by John Smith);
- communicating with a person in a manner that is unreasonable in its frequency, nature or content (the ACCC debt collection guidelines provide information on appropriate hours and frequency of contact).
VCAT may award damages of up to $10 000 where a person has experienced humiliation or distress:
- due to a course of conduct (conduct that occurs on at least two occasions);
- in contravention of the above prohibited debt collection practices; and
- where the debt is a consumer debt (a debt that was incurred wholly or predominantly in connection with personal, domestic or household purposes).
Other remedies may be available under the ACL.