The 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 that 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 the person does not intend to supply the goods or services, know they cannot supply the good or service or cannot supply the goods or services in a timely manner;
- pyramid selling (s.44-46), outlawing it as a scheme, save where there has been an exemption order given 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, it must either sell the goods for the lowest price or they can 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.
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 provide rights to consumers when suppliers breach a range of consumer guarantees. For detailed discussion, see: Chapter 12*2 Consumer Guarantees.
In addition to the prohibition against prohibition and coercion in the ACL, new fair debt collection provisions in the Fair Trading Act 1999 (Vic) came into effect on 1 January 2011. 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.
For example, 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.
For example, 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.
For example, 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 the Victorian Civil and Administrative Tribunal (VCAT) or are threatening the debtor with court or VCAT action that the creditor intends to take.
- 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.
For example, 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 Australian Competition and Consumer Commission’s (ACCC) debt collection guidelines provide information on appropriate hours and frequency of contact.
The Victorian Civil and Administrative Tribunal (VCAT) may award damages of up to $10,000 where a person has experienced humiliation or distress:
- due to a course of conduct (conduct which 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 which was incurred wholly or predominantly in connection with personal, domestic or household purposes).
Other remedies may be available under the ACL.
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OTHER PROVISIONS OF THE ACL :: Last updated: Thu Jul 1st 2010