ACCAN Informed Consent Project (21 August 2009)
6.5. The limits of consent
It is important to recognise the limits of relying on consent and to continue to develop other consumer protection tools where appropriate.
Where a product or sales technique is seriously flawed and consumers are suffering, consent may not be sufficient.
There are also limits to relying on consent in the face of a hardened sales team, reliant on sales commissions as their major source of income and willing to use aggressive tactics and misinformation. It is notable that in the One Tel case brought by the ACCC,  sales staff were able to customise the false statements to suit the needs of the consumer. For example, if the customer liked Telstra the staff would (falsely) imply that OneTel was part of Telstra. If they disliked Telstra the staff would claim a (false) price advantage of OneTel over Telstra. It is important to recognise the limitations and vulnerabilities of consumers in the face of such careful manipulation and misrepresentation.
In other sectors, regulators have relied on enforceable undertaking, licence conditions, banning products and even prescribing product characteristics in order to protect consumers.
Notable examples include:
- The establishment of the National Do Not Call Register;
- Prescribed interest rate caps in consumer credit law;
- Licence conditions on some financial service providers not to sell products to pensioners, Centrelink recipients or persons over 60 years of age (due to prior poor behaviour); and
- Enforceable undertakings not to sell to more than six members of an Aboriginal community in any 24 hour period (due to prior poor behaviour).
These actions recognise the limits of relying on disclosure and consent provisions in the face of flawed products and overly aggressive and exploitative sales techniques. Similar powers should be available in the communications sector and the limits of consent should be recognised by the regulators.
Alternative consumer protection tools that may need to be considered include:
- Do not contact registers;
- Spending caps;
- Cooling off periods;
- Prohibition on door to door sales;
- Prohibition on unsolicited telemarketing;
- Prohibition on selling in remote indigenous communities;
- Prescribed product characteristics;
- Caps on commissions / remuneration; and
- Prohibition of unfair contract terms.
Some of these tools are already in use in other sectors. Obviously each of these tools has their own positive and negative elements and may only be suitable in limited circumstances. However, it is important to remember that consent is just one consumer protection tool and consumers face many challenges in relying on consent alone.
Australian Competition and Consumer Commission, Undertaking to the Australian Competition and Consumer Commission given under s87B of the Trade Practices Act 1974 by One.Tel Limited, ACCC, Sydney, 9 January 2001, <http://www.accc.gov.au/content/item.phtml?itemId=331523&nodeId=a55f639fdc73a6a4f70731c93afaed36&fn=d01_1080.pdf>.
See also Australian Competition and Consumer Commission, Court agrees that door-to-door sellers illegally ‘slammed’ telephone customers, ACCC, Sydney, 24 March 2002, <http://www.accc.gov.au/content/index.phtml/itemId/88010/fromItemId/378014>.