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Telemarketing sales

A telemarketing sales agreement involves the sale of personal, domestic or household goods or services of more than $100 - unless the value cannot be determined at the time of making the agreement.

In telemarketing, all negotiations take place over the phone.

Telemarketing phone calls are specifically regulated under the Do Not Call Register Act 2006 and the Telemarketing Industry Standard.

A telemarketing sales agreement is an example of an 'unsolicited consumer agreement' - view our Unsolicited consumer agreements page.

Telemarketing hours

Telemarketers can only call between:

  • 9:00 am and 8:00 pm Monday to Friday
  • 9:00 am and 5:00 pm Saturday.

They cannot call on Sunday or public holidays.

Ending a call

Telemarketers must hang up immediately at the consumer's request, and not call back for at least 30 days.

To avoid telemarketers, consumers can request to be added to the Federal Government's 'Do Not Call Register' online or by calling 1300 792 958.

Sales agreement requirements

The agreement document

Consumers must be given a written copy of the agreement within five business days (or longer if the consumer agrees). The agreement document can be provided in person, by post or electronically (if the consumer agrees).

The agreement document must:

  • include the following text on the front page:

Important Notice to the Consumer

You have a right to cancel this agreement within 10 business days from and including the day after you signed or received this agreement.

Details about your additional rights to cancel this agreement are set out in the information attached to this agreement.

  • be transparent - expressed in plain language, legible and clear
  • be printed - although any changes may be handwritten (and signed by both parties)
  • be signed and dated by the consumer on the front page.

The agreement document must clearly state:

  • the consumer's cooling off rights (right of termination)
  • the full terms of the agreement
  • the total price payable, or how this will be calculated
  • any postal or delivery charges
  • the supplier's name, Australian Business Number (ABN), Australian Company Number (ACN)
  • the supplier's business address (not a PO Box), or residential address if no business address is available
  • the supplier's email address and fax number (if available).

Cooling off

Prior to any agreement between the telemarketer and the consumer, the telemarketer must inform consumers of their cooling-off rights, and how they can exercise their right to cool off.

The agreement document must be accompanied by a notice that may be used to terminate the contract (cool off). This notice must include the supplier's details including:

  • name and business address (not a post box number)
  • Australian Business Number (ABN) or, if they have one, Australian Company Number (ACN)
  • fax number and email address, if they have these.

A consumer can use the ACL Section 82 cancellation notice for unsolicited agreements (PDF, 107KB) - Australian Consumer Law website.

A consumer who cancels an unsolicited agreement also has responsibilities - these are set out on our Rejecting and returning goods.

Waivers

It is an offence to induce, or attempt to induce, consumers to waive their rights.

Provisions that are void

It is unlawful to include or rely on provisions that exclude, limit, modify or restrict:

  • a consumer's right to terminate the agreement
  • the effect or operation of the law as it relates to unsolicited consumer agreements.

Cooling off and termination

Consumers have 10 business days to reconsider a telemarketing agreement, during which they can cancel the agreement without penalty. This is called the cooling-off period.

The cooling-off period begins on the first business day after the consumer receives the agreement document.

During the cooling-off period, a supplier must not:

  • supply any goods priced over $500 relating to the agreement
  • supply services relating to the agreement
  • accept or require any form of payment.

Goods priced at $500 or less may be supplied, as can electricity or gas to premises not already connected to such services.

For more information, view our Unsolicited supplies page.

Extended cooling-off period

Consumers may terminate an agreement up to three months after the agreement documents are received, if the telemarketer:

  • called outside of the permitted selling hours
  • did not disclose the purpose of the call
  • did not identify themselves, or the company they are calling on behalf of
  • did not give a business name and postal address or email address, or
  • did not end the call upon request.
The cooling-off period is extended to six months if a telemarketer:
  • did not provide information about cooling-off rights
  • was in breach of any of the 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 priced over $500 during the 10 business days of the cooling-off period
  • supplied services during the 10 business days of the cooling-off period, or
  • accepted or requested any payment during the cooling-off period.

If a consumer cools off or terminates

A consumer may terminate an agreement orally or in writing. The termination date is considered to be the date on which the notice was given or sent by the consumer.

Once a consumer has given notice to terminate an agreement (either orally or in writing) the agreement is void. The notice is effective even if:

  • written notice has been given, but the supplier has not received it
  • goods or services supplied have been wholly or partly consumed or used.

A consumer can use the ACL Section 82 cancellation notice for unsolicited agreements (PDF, 107KB) - Australian Consumer Law website.

A consumer who cancels an unsolicited agreement also has responsibilities - these are set out on our Rejecting and returning goods.

Related contracts

If a consumer cancels a telemarketing agreement, then any related contract or instrument is also void, which means it is also effectively cancelled.

For example:

A consumer agrees to buy a $900 washing machine from a telemarketer, and also signs a separate agreement for servicing the washing machine, costing $80. The second contract is not covered by the cooling-off provisions. If the consumer cools off on the washing machine purchase then the service contract is also cancelled.

For goods bought on credit or finance, it is the supplier's responsibility to contact the credit provider and arrange for cancellation. For more information, contact the Australian Securities and Investments Commission (ASIC).

Supplier obligations

When a consumer cools off, the supplier must promptly return or refund to the consumer any money paid under the agreement or related contract.

A supplier cannot:

  • take action against the consumer to recover any payments allegedly owed under the agreement
  • place, or threaten to place, the consumer's name on a list of defaulters or debtors.

What happens to the goods or services after a consumer cools off?

The consumer must (within a reasonable time) return any goods that have not been consumed or tell the supplier where to collect them. If the supplier does not collect the goods within 30 days once notice has been given, the consumer can keep them.

When the agreement is terminated after the cooling off period:

  • if a service has already been provided, the consumer may have to pay for the service as it cannot be 'undone' once it has been provided
  • if the consumer has not taken reasonable care of any goods provided to them during that period, the supplier can seek compensation for depreciated value, or for any damage to the goods.

The consumer does not have to pay compensation for normal use of the goods or circumstances beyond the consumer's control.

Supplier responsibility for failing to comply

A supplier cannot enforce an agreement if the supplier's agent (telemarketer) has breached the law on unsolicited consumer agreements - view our Unsolicited consumer agreements page.

Both the supplier and telemarketer may be liable for the breaches, particularly if the telemarketer breached the law regarding the permitted hours, disclosure of purpose and identity, ceasing to negotiate on request and informing the consumer on their termination rights.

Suppliers should ensure their sales agents and other representatives are fully aware of legal obligations when using unsolicited marketing approaches.

Last updated: 18/12/2014

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