What this guideline does
- explains the ACCC’s and ASIC’s views on the laws that they regulate
- provides examples on how the law has been applied in particular cases and details of court outcomes
- gives guidance on what you should and should not do if you wish to minimise the risk of breaching the Commonwealth consumer protection laws
- notes other laws and regulations not regulated by the ACCC and ASIC that are relevant to debt collection.
This guideline does not have legal force. The ACCC and ASIC cannot make law in this field because that is the role of parliament. The ACCC and ASIC also cannot provide a definitive interpretation of the law because that is the role of the courts.1
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. Compliance with this guide cannot provide a guarantee against enforcement action by ASIC or the ACCC. 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.
Focus on individual debtors
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.
1 Although this guideline does not have legal force, it should be noted that:
- A creditor or collector may agree contractually to adhere to this guideline. This will be the case, for instance, if the terms and conditions for a particular product or service stipulate that the provider of the service will abide by the guideline itself, or by an industry code of conduct requiring compliance with the guideline. In these circumstances, provisions of the guideline may be legally enforceable by the debtor on the basis of the express incorporation of them into the creditor’s contractual arrangements.
- External dispute resolution schemes may consider this guideline when making binding determinations on scheme members. See further under part 2, section 24, The role of independent external dispute resolution schemes.