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Contact the ACCC http: This guideline is designed to give you basic information; it does not cover the whole of the Competition and Consumer Act Cth , the Australian Securities and Investments Commission Act Cth or other relevant legislation and is not a substitute for professional advice.
Moreover, because it avoids legal language wherever possible and there may be generalisations about the application of the above Acts, some of the provisions referred to have exceptions or important qualifications. In most cases, the particular circumstances of the conduct need to be taken into account when determining how these Acts apply to that conduct.
For more information about the responsibilities of each agency, see appendix A. This guideline will help you to understand how the Commonwealth consumer protection laws apply to you if you are a:.
This guideline applies to both creditors who are directly involved in debt collection and to specialist external agencies who provide debt collection services.
A creditor may also remain liable for conduct regarding a debt despite having sold or assigned the debt. Liability will generally remain for misconduct occurring before the sale or assignment of the debt.
The ACCC and ASIC encourage creditors to use this guideline to ensure their in-house collection activities are compliant with the Commonwealth consumer protection laws and to incorporate this guideline into their contractual and compliance auditing arrangements with their agents and assignees. This guideline explains the application of the following Commonwealth consumer protection laws, which are relevant to debt collection:. Part 2 of this guideline provides practical guidance on what creditors and collectors should and should not do to minimise their risk of breaching the Commonwealth consumer protection laws that may apply when undertaking debt collection activities.
When seeking to recover a debt, part 3 of this guideline looks at the prohibitions and remedies against creditors or collectors who engage in:. Part 3 of this guideline also contains information about the penalties that apply for contraventions of the Commonwealth consumer protection laws. Various other laws, regulations and industry codes are also referred to in passing throughout this guideline.
For a non-exhaustive list of other applicable laws, see appendix B. Also see the comments under Relationship with court debt recovery processes in this guide. This guideline does not have legal force. ASIC and the ACCC will approach each potential compliance and enforcement matter on a case-by-case basis, taking into account all relevant circumstances, and by applying their respective enforcement and compliance policies. Businesses may also be subject to action by private parties.
Businesses should consider seeking independent legal advice on these matters. The ACCC and ASIC encourage businesses engaging in debt collection activity to follow this guideline and incorporate it into their staff training, both in terms of the text and the spirit of the document. This guideline is developed with particular reference to collecting debts from individual debtors. However, many of the laws and principles discussed in this guideline will also be relevant to the collection of corporate, business, and in particular, small business debts.
Debtors are legally responsible for paying the debts they legitimately owe. Where they owe the debt in question, debtors should:. The ACCC and ASIC also recommend that debtors experiencing financial difficulties should seek the assistance of a financial counsellor, solicitor or other qualified adviser who may be able to help them with a debt negotiation. The Australian Energy Regulator AER has produced a consumer information factsheet, Energy bills, hardship programs and disconnection—your rights.
For a copy of this publication go to the AER website. We encourage creditors and collectors to refer debtors to these publications available on the ACCC , MoneySmart and AER websites, and to the services referred to above when appropriate. Broadly, debts may be recovered either through the courts, or by using creditor or collection agency personnel to negotiate repayments.
Debt recovery through the courts is largely regulated by state and territory law and the procedural rules of the courts. The recovery process may include the repossession of assets, securities or other legal enforcement of security interests. This guide is mainly concerned with non-court debt recovery processes and informal collection activities before a court action is commenced or after a court judgment.
However, you must not threaten action legal or otherwise that you are not legally permitted to take, do not have instructions or authority to take, or you have no intention to take. How legal action is threatened or taken can, in certain circumstances, amount to misleading or deceptive conduct, unconscionable conduct or harassment.
You also must not misrepresent your legal entitlement to seize goods. See part 2, sections 19—21 for more information about representations about the consequences of non-payment and the legal status of a debt and about legal action and procedures.
The need for collection activity will be greatly reduced when debtors act promptly and responsibly, and collectors are flexible, fair and realistic. Debtors may default on their debts because of circumstances beyond their control, such as unemployment, illness or family breakdown. While there are cases of fraud and deliberate evasion, most people are honest and want to meet their commitments if given a reasonable opportunity to do so.
This includes recognising debtors who are vulnerable and experiencing financial hardship, and recognising that debtors may have a number of debts owing to different creditors.
Repayment negotiations more generally are discussed in part 2, section 14, Repayment negotiations. If you are involved in collection activity, either as a creditor, agent or assignee, this part of the guideline is addressed directly to you.
If you are calling from or on behalf of a bank then it is unlikely that revealing the name of the bank would result in you divulging that the debtor has a debt. Banks commonly provide a range of services and the person you are dealing with will not be able to deduce that you are currently engaging in debt collection activities and that the debtor has a debt.
Calling from or on behalf of an organisation with a descriptive name. The court found that the company persistently engaged in misleading or deceptive conduct by making such implications. A company was found to have engaged in misleading and deceptive conduct, unconscionable conduct and coercion when attempting to obtain payment for mobile phone services.
The company created a fake complaints handling organisation to deceive debtors into believing their disputes about liability were being assessed by an independent body when neither that body nor those activities existed.
The company then contacted debtors under the false pretence of a fictitious debt collection agency to induce debtors to pay the alleged debts. The court found this conduct to be unconscionable and that the company used undue coercion in its dealings with debtors. If you are aware that a debtor is unable to make meaningful and sustainable repayments towards a debt, then continuing to contact the debtor to demand payment will not be reasonable or appropriate.
There are many reasons a debtor may be unable to make meaningful repayments towards a debt, including where they are:. If you make contact with a debtor in order to convey a demand for payment it may be contact for a reasonable purpose. However, if the debtor disputes liability and requests proof of the alleged debt, and you continue to pursue that person without properly investigating the claims, then this will not be contact for a reasonable purpose.
If contact is made with a debtor in order to negotiate a repayment arrangement where one does not exist, it may be necessary and reasonable contact; however, it may not be reasonable to contact the debtor where a payment arrangement exists and the debtor is meeting those repayments, unless you are proposing a genuine alternative arrangement to benefit the debtor. If, during communications with a debtor or other person, you attempt to dissuade them from making a complaint or refuse to refer them to a supervisor or complaints department that is, on the basis of a dispute about the debt or your conduct in collecting the debt , then this will be unreasonable contact and may be unconscionable conduct.
See part 2, sections 17 and 18 in regards to Conduct towards the debtor or their representatives and Conduct towards family members and other third parties. If you email a debtor regarding an account contact , and the debtor replies offering a payment arrangement, then the subsequent reply to the offer would not be considered a new contact if it occurs promptly and if the debtor would have anticipated a reply same contact.
If you phone a debtor or other person but the call is unanswered and you do not leave a message on voice mail, this is regarded as attempted contact with the debtor or other person , and will not constitute a contact with either party. If you phone a debtor and the debtor answers the call but subsequently terminates the call contact , and then you proceed to repeatedly phone the debtor throughout the same day despite the debtor not answering the calls attempted contact , this may amount to unnecessary and unduly frequent attempted contacts and could constitute undue harassment.
Contact may also be prohibited on other days in particular jurisdictions. If you contact a debtor or other person multiple times a day, without allowing an appropriate interval for the debtor to respond, then this is likely to involve unreasonable contact and may amount to undue harassment.
Such contact may arise, for example, from the use of an automatic dialler system which leaves messages on recording devices and continues to call the recipient repeatedly until a response is received or identification is confirmed.
If you use social media such as Facebook to contact the debtor, then you must ensure such contact is not excessive and is always for a reasonable purpose; otherwise the contact may amount to undue harassment. You must also observe your privacy obligations when using such forums to make contact with the debtor.
If you have spoken to the debtor and it is understood that the debtor requires a few days to speak to third parties or consider options, then contacting the debtor on the following day may be considered unreasonable, even though it is within the recommended limits. The court ordered the defendant company to restrict its agents to a total of five personal visits for the period of collection unless a visit was specifically requested by the customer or a repayment agreement had been made and subsequently breached in which case a further five visits could be made.
If you contact a third party in an attempt to speak with a debtor, and that other person tells you that the debtor does not live at that address and they do not know the location of the debtor, or have further details to provide, or simply do not wish to provide further details about the debtor, then you should not contact that third party again, unless you have reason to believe that after six months or more they may be in possession of relevant information about the debtor.
The conduct was held to be unduly harassing and coercive. This is further discussed in Part 3. Personal information means information or an opinion, whether it is true or not, about an individual that can reasonably allow the individual to be identified. See also under Privacy laws in appendix B. If a debtor instructs you not to contact them, and provides you with contact details of a specified third party who has been authorised to act on their behalf, then you should not contact the debtor and future contact should be through the authorised representative.
If you maintain accurate records for example, call logs or notes of contact and copies of all correspondence with the debtor , then it may be easier to identify any issues and to resolve disputes.
More generally on privacy issues: These timeframes also provide a guide to what is reasonable for accounts that are not regulated by the NCCP.
Details of items that make up this amount must also be provided if requested: More generally on privacy issues, see part 2, section 8, Privacy obligations to the debtor and third parties. If you write a letter or other message to a debtor that does not identify the sender but states that the matter is urgent then you may lead a debtor to believe there may be some personal emergency that requires an immediate response. For a more general discussion of legal action and procedures, see part 2, section 21, Legal action and procedures.
Take reasonable steps to ensure that the person contacted is the alleged debtor. You should not send letters requesting payment or alleging a debt is owed to a person or group of persons who may only share a name or surname with the person who incurred the debt. Doing so can be stressful for a person who is not the alleged debtor and may be misleading or deceptive. At the end of a phone conversation with the debtor, where you have renegotiated a repayment arrangement, you may consider sending an email or letter to the debtor to confirm the terms of the agreed arrangement.
This will minimise any ambiguities or misunderstandings, and will give the debtor the opportunity to contact you in case they disagree or are unclear about any aspect of the agreement or the way you have recorded it.
If the credit provider does not agree to the variation proposed, the debtor can apply to your approved external dispute resolution scheme.
Energy retailers have an obligation to develop processes to identify consumers experiencing hardship and provide flexible payment options.
See AER publication Energy bills, hardship programs and disconnection—your rights. Other protections include s. You can ask the debtor whether they wish to receive payment reminders, perhaps via an email or SMS. However, if a debtor has not explicitly requested such contact you should avoid further contact unless it is for a proper purpose for example, the debtor defaulted on a repayment.
AFSA is the Commonwealth body responsible for the administration and regulation of the personal insolvency system, trustee services and the administration of the Personal Property Securities Register PPSR and proceeds of crime.
In this case, the trustee of the bankrupt estate and not the bankrupt person should be contacted. A company was found to have engaged in false and misleading conduct and unconscionable conduct, and to have used coercion to obtain payment for mobile services when it created a fictitious complaints handling body, a fictitious debt collection agency and made false statements about the consequences of non-payment to coerce debtors to pay the alleged debt.
The court found this to be the case notwithstanding the fact that the man threatened the agents with assault. It was found to amount to undue harassment and coercion. The court found that this conduct carried with it the implicit suggestion that such exposures might be expected in the future.