Can I still cold call? The Impact of the Australian Consumer Law...
The Australian Consumer Law (ACL) is designed to be an Australian-wide consumer protection and fair trading scheme. From 1 January, 2011 it replaces provisions in 20 national, state and territory laws.
Restrictions on Unsolicited Contact
- door-to-door selling
- telephone sales
- other forms of direct selling that do not occur in a retail context.
- restricted hours for contact with consumers (door-knocking, telemarketing)
- disclosure requirements when making an agreement
- criteria for the sales agreement, including that it must be in writing
- restrictions on supply and requesting payment during the cooling-off period
Agents have additional obligations under the ACL where there is an unsolicited consumer agreement. This term is defined in section 69 of the ACL. An
agreement to appoint an agent to sell a property will be an unsolicited consumer agreement where:
- you approach or telephone a consumer (person selling property) without invitation from that person
- the agreement results from negotiations by telephone or at a location other than your business premises, and
- the total value of the goods or services is more than $100, or the value was not established when the agreement was made.
Cooling off and termination requirements
Consumers who agree to unsolicited agreements have 10 business days to reconsider. During those 10 business days, consumers can cancel the agreement
During the cooling-off period, an agent cannot
- provide services or
- receive payment for services
Be careful to comply with the rules about unsolicited contact and informing consumers of their termination rights. If you do not, then the consumer
has an extended time frame for terminating the contract.
- visited outside permitted selling hours
- did not disclose the purpose of the visit
- did not produce identification, or
- did not leave the premises upon request.
- did not provide information about cooling-off rights
- breached requirements for unsolicited consumer agreements (such as failing to provide a written copy or not including required information)
- supplied goods or services during the 10 business days of the cooling-off period, or
- accepted or requested payment during the cooling-off period.
If an agent approaches a seller in person, or telephones them to negotiate an unsolicited consumer agreement then:-
- the agent must inform the seller of their termination rights before the agreement is made;
- the seller must be given a written copy of the agreement that meets specific criteria;
- both parties must sign the agreement and any amendments.
- attached to the agreement
- expressed in plain language, legible and clear, and
- the most prominent text in the document, other than the text setting out the dealers or suppliers name or logo.
- the agent cannot enforce the unsolicited agreement; and
- there may be civil and criminal penalties imposed of up to $50,000 for a body corporate and $10,000 for an individual.
For further information please contact Roland Taylor in our Mackay office on (07) 4963 0807 or at [email protected]