This page provides an overview for businesses on the rules relating to unsolicited selling and supplies.
Unsolicited supplies
What are unsolicited supplies?
Unsolicited supplies are goods or services supplied to someone who has not agreed to buy or receive them.
It is unlawful to:
request payment for unsolicited goods or services
request payment for unauthorised entries or advertisements
send unsolicited credit cards or debit cards.
A business or person must not issue an invoice that states an amount to be paid for unsolicited goods or services, unless:
they reasonably believe they have a right to be paid, or
the invoice contains the warning statement required by the Regulations: ‘This is not a bill. You are not required to pay any money’. This warning must be the most prominent text in the document.
Someone who receives unsolicited goods or services does not have to pay for those goods or services, or for any loss or damage due to supply of the service.
Example
A consumer takes her car to a car wash and arranges for the business to wash the outside of her car. When she returns, the inside of her car has also been cleaned and she is charged an extra $50. Cleaning the inside of her car was unsolicited and she does not have to pay the extra $50. This would not be the case if the car wash operators had asked her permission before cleaning the inside and she had agreed.
Unsolicited consumer agreements
What is an unsolicited consumer agreement?
An agreement is unsolicited when:
it results from negotiations by telephone or at a location other than the business or trade premises of the supplier; and
a supplier, or their salesperson or dealer, approaches or telephones a consumer without invitation from that consumer; and
the total value is not established when the agreement is made—or, if the total value is established when the agreement is made, it is more than $100.
Salespeople who initiate unsolicited contact with consumers must comply with:
rules limiting hours for contact with consumers—for example, the Do Not Call Register Act 2006 and associated telemarketing standards apply to telephone calls. Other forms of contact, such as door-knocking are regulated by the Australian Consumer Law (ACL)
disclosure requirements when making an agreement—including explaining the purpose, producing identification, informing the consumer that they can request the supplier to leave at any time, informing the consumer about their right to terminate the agreement, and providing the supplier’s contact details in the agreement
criteria for the sales agreement—including that it must be in writing and provide the full terms of the agreement, the total price payable (or how this will be calculated), and any postal or delivery charges.
Unsolicited consumer agreements may result from door-knocking households, telephoning or approaching consumers in a shopping centre.
Cooling off
If you negotiate an unsolicited agreement with a consumer, they have 10 business days to change their mind and cancel the agreement without penalty. This is called the cooling off period.
If the agreement was negotiated in person, the cooling off period begins on the first business day after the agreement was made. If the agreement was negotiated over the telephone the cooling off period begins on the first business day after the consumer receives the agreement document.
The cooling off period may be extended to three or six months if the supplier has not met certain obligations.
Consumers may terminate an agreement up to three months after it is made if the salesperson:
visited you outside of the permitted selling hours - A salesperson must not visit on Sundays and public holidays, before 9am and after 6pm on weekdays or before 9am and after 5pm on a Saturday.
did not disclose the purpose of the visit
did not produce identification
did not leave the premises upon request.
The cooling off period is extended to six months if the salesperson:
did not provide the consumer with information about the cooling off period
was in breach of other requirements for unsolicited consumer agreements (such as failing to provide a written copy of the agreement or not including required information in the written agreement)
supplied goods or services during the cooling off period
Accepted or requested payment during the cooling off period.
Supplying goods or services during the cooling off period
During the cooling off period you must not:
supply any goods or services relating to the agreement
accept or require any form of payment.
However, during the cooling off period an energy supplier can provide electricity or gas to premises not already connected to such services, or where there is already a connection but no supply.
Previous state and territory laws did not allow payment for services during the cooling-off period, and some also did not allow supply of goods during this time.
To give businesses time to adjust to the ACL, businesses may, for a limited time, comply with previous state and territory laws relating to the payment and supply of goods or services during cooling-off periods for door-to-door trading.
This means that, until 31 December 2011:
in Victoria and the Australian Capital Territory, businesses may receive payment for goods – but not services – during the cooling-off period
in New South Wales, businesses must not collect any fees during the cooling-off period for services supplied during that period
in Queensland, South Australia, Western Australia, Northern Territory and Tasmania, businesses cannot receive payment for goods or services during the cooling-off period – regardless of whether the agreement resulted from door-to-door trading or was negotiated by telephone. They must also not provide services during the cooling-off period.
If a business does not comply with the relevant state or territory provisions between 1 January 2011 and 31 December 2011, they must comply with the ACL.
Changes to the rules on unsolicited consumer agreements from 1 January 2012
As of 1 January 2012 businesses will be able to immediately supply goods to a consumer during the cooling off period under an unsolicited consumer agreement if the agreement is worth $500 or less.
However, businesses cannot accept payment for such a good or supply services during the cooling off period under an unsolicited consumer agreement worth more than $100.
