Conduct may be unconscionable if it is particularly harsh or oppressive. It is behaviour that is substantially more than just hard commercial bargaining. The relationship or dealings between a creditor or collector and a debtor is one that could assume characteristics of unconscionable conduct. This is because the collector is often in a position of strength and can exert pressure or unfair tactics over a debtor.
Section 18 of the ACL
A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
Section 12DA(1) of the ASIC Act
A person must not, in trade or commerce, engage in conduct in relation to financial services that is misleading or deceptive or is likely to mislead or deceive in trade or commerce.
Entering private property to take possession of secured goods
The Personal Property Securities Act 2009 (Cth) (PPSA) deals with security interests in personal property (both consumer and commercial). Where the NCC also applies, the PPSA and the NCC operate concurrently.88
A credit provider subject to the NCC or its agent must not enter onto private residential property to take possession of secured goods unless:
Section 50 of the ACL
A person must not use physical force, undue harassment or coercion in connection with the supply or possible supply of goods or services or the payment for goods or services.
Section 12DJ of the ASIC Act
A person contravenes this subsection if the person:
This part summarises key prohibitions and remedies under Commonwealth consumer protection laws applicable to debt collection activity. Relevant court decisions about the CCA and the ACL also apply to equivalent ASIC Act provisions.82 See appendix B for other statutory and common law obligations and remedies.
- Many industries (including telecommunications companies, utility suppliers and financial services businesses) belong to an independent external dispute resolution (EDR) scheme.81 Specialist collection and debt purchasing agencies, and other finance providers, may also decide to join a scheme. As already outlined in this guideline, belonging to an EDR scheme is a legal requirement for many creditors.
- A company is liable for the conduct of its employees and agents even if they inadvertently break the law. Compliance programs cover all relevant competition and consumer laws that apply in Australia and there are also compliance programs aimed at ensuring companies meet their corporate responsibilities.
- Complaints and disputes must not be ignored. You must have effective internal processes in place for logging, assessing, and where appropriate, taking timely action in response to them.
- This section should be read in conjunction with part 2, section 19, Representations about the consequences of non-payment and section 20, Representations about the legal status of debt, including statute-barred debt.
- You have a right to pursue debts through the courts. However, in pursuing or threatening to pursue legal action you must comply with the consumer protection laws.
- Do not make misrepresentations about the legal process. For instance, do not:
- This section should be read with part 2, section 19, Representations about the consequences of non‑payment and section 21, Legal action and procedures.
- You should not state or imply that legal action will or may be taken when a defence at law applies. Among other defences, a debtor will be able to claim a defence if:
- the debtor has been declared bankrupt72 and the debt(s) is unsecured