Would the Avon Lady be covered by the proposed Do Not Knock register?

At the recent Federal parliamentary inquiry into the proposed Do Not Knock Register, a representative of the Direct Selling Association of Australia (DSAA) argued that the register will be ineffective as it may not operate to bind independent Avon distributors. This was picked up by the news media, which questioned whether ‘the Avon Lady was beyond the law’.

At the hearing, John Holloway, Executive Director of the DSAA stated: ‘An Avon lady is typically unincorporated and conducts business locally. In these circumstances, the proposed register will not apply to the Avon lady. In other words, consumers will need to do more than register their addresses if they do not want a visit from the Avon lady’.

The argument is based on the fact that the Bill proposing the register needs to have a link with a constitutional head of legislative power. The constitution does limit what the Parliament may legislate, but states that the Parliament can make laws with respect to ‘trading or financial corporations’. The suggestion from the DSAA is that because Avon distributors are unincorporated, they’re unlikely to be within scope of the Federal Parliament.

There are two main problems with this argument. First, as argued by constitutional law expert Professor George Williams, the register is likely to bind independent distributors of Avon where they are acting on behalf of, or for the benefit of, a corporation. Avon is clearly a corporation, caught by the constitutional head of power. Avon’s independent distributor agreement states that distributors are not employees or agents of Avon, and that they are free to undertake other work. We believe it is likely that the distributors are benefiting Avon—indeed by selling Avon’s products and promoting its brand, the work of an independent Avon distributor is indeed likely to benefit Avon.

Second, the argument overlooks the effect of section 9 of the Bill. This clause puts a positive obligation on corporations entering into agreements with independent distributors or marketers to include a requirement that the distributor must comply with the legislation. A similar provision was included in the Do Not Call Register Act 2006, and was included to ensure companies causing telemarketing calls to be made through outsourcing the making of the calls, specifically require the telemarketer to comply with the register. This clause is likely to require Avon to include in its agreements with independent distributors that they comply with the Do Not Knock register. Failure to do so could mean that Avon is hit with a civil penalty.

The value of an effective Do Not Knock register, if enacted, will be the creation of a level playing field, where all salespeople—regardless of the product they are trying to sell—will have to respect a consumer’s choice not to be door knocked.  It’s perhaps unsurprising to see industry groups arguing  against effective consumer protections. However, we hope decision-makers do not accept them at face value and instead understand the issues at hand, and act to better protect consumer choice.

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