Loophole in Australian Consumer Law allows door knockers to visit outside allowed hours

Many householders already know the Australian Consumer Law (ACL) sets nationally consistent limits on the hours when a salesperson can visit their home.  However, Consumer Action is receiving complaints from consumers who are discovered that these limitations aren’t as restrictive as people might expect.

Section 73 of the ACL sets out permitted hours for negotiating an unsolicited consumer agreement. Visits can only be made between 9am and 6pm Monday to Friday and 5pm on Saturdays. Visits cannot be made on Sundays or public holidays. 

The term ‘unsolicited consumer agreement’ has a specific meaning set out in section 69 of the ACL. In simple terms it has four components; firstly, the visit must involve supply of goods or services to a consumer. Secondly, the agreement must be negotiated off business premises, or by phone. Thirdly, the visit must be uninvited.

Critically, the fourth requirement is that:

 the total price paid or payable by the consumer under the agreement:

(i)                  is not ascertainable at the time the agreement is made; or

(ii)                if it is ascertainable at that time—is more than $100 or such other amount prescribed by the regulations

In short, if the offer is under $100, the sale is not an ‘unsolicited consumer agreement’ and thus the permitted hours for negotiation do not apply.

It’s a significant loop hole, and we think likely to grow in impact.  Already, some businesses are making the most of it.  A significant number of complaints have been made via the Do Not Knock website about sales visits outside the permitted hours for negotiation, so we wrote to the biggest offenders, asking them to ‘please explain’.  

One large national trader with significant market share in its industry responded to our concerns by stating that its salespeople offered a product under the $100 threshold.  It took the view that salespeople were not promoting an ‘unsolicited consumer agreement’ and, as such, the permitted hours for negotiation did not apply.  Despite declaring their practices were within the bounds of the ACL, the trader has thankfully stopped offering this product via door-to-door marketing, and now won’t visit premises outside the permitted hours without the consent of the customer.

Another growing cause of complaint are promoters of energy efficiency products, who too are working outside the permitted hours for negotiation in section 73 of the ACL.  In Victoria, the installation of these products provide the promoter with rights pursuant to Victoria’s Energy Efficiency Target scheme. The consumer doesn’t pay for the product, but they agree to give ‘energy efficiency entitlements’ to the promoters, who then on-sell them to energy retailers. These entitlements may or may not be worth more than $100 to the promoter.  

Consumers who object to these approaches are being told the visiting hours don’t apply because the product is ‘free’, in addition to the claim that the caller is ‘from the government’.  Some are also arguing that a Do Not Knock sticker doesn’t apply, because they ‘aren’t selling anything’.   It’s an unwanted irritation for consumers, who believe they shouldn’t be visited at that time or, where they have a sticker, at all.  

Consumers expect businesses not to hassle them at unreasonable times of the day, or at all where they have a sticker in place.  It’s time for the government to close down these loopholes in the ACL, and to ensure that the marketing of any product door-to-door is limited to the recognised permitted hours—irrespective of the total price payable under the agreement.

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