7. Selling and Duress

Certain types of trader conduct can put consumers under pressure to buy goods or services they do not really want, which is a form of duress. This section discusses existing consumer law protections regarding door to door sales and unsolicited goods and services, which are both types of selling that can put consumers under duress. There is existing legislation addressing both of these areas, but in both cases the legislation is old and out of date.

The existing law is compared with the Australian Consumer Law stage 2 proposals which have modern provisions on unsolicited sales practices including door to door selling, telephone sales and other forms of direct selling which do not take place in a retail context. These will replace door to door sales and unsolicited sales practices legislation in the Australian States and Territories. The Australian Consumer Law stage 2 proposals also include under unfair practices, modern provisions concerning unsolicited supply of goods and services.

This section also considers whether protections for consumers against unconscionable conduct or oppressive conduct should be included in an enhanced Fair Trading Act.
Australia has existing provisions in the Trade Practices Act prohibiting unconscionable conduct. In 2008 the Australian Commonwealth Government Senate Economics Committee undertook an examination of the unconscionable conduct provisions. In November 2009, the Australian Government responded to the Senate Economics Committee report and established an expert panel to consider options for amending the unconscionable conduct provisions. We have drawn on the findings of both of these processes as much as possible.

The work undertaken by Australia regarding unsolicited sales practices, unsolicited supply of goods and services and unconscionable conduct is timely. It has assisted the analysis which follows and also provides an opportunity to consider harmonisation of law in these areas.