Victorian Consolidated Legislation

Fair Trading Act 1999 - SECT 67D

Purchaser must give explicit informed consent

67D. Purchaser must give explicit informed consent



(1) A telephone marketing agreement is void unless the purchaser has, prior to
the telephone marketing agreement being made, given explicit informed consent
to the supplier or a person acting on behalf of the supplier.

Note Section 67M sets out the consequences flowing from a purported telephone
marketing agreement being void.

(2) If a telephone marketing agreement is void under subsection (1) any
related contract or instrument is also void.

(3) Subsection (2) does not affect the operation of the Consumer Credit
(Victoria) Code in its application to a tied loan contract as defined in that
Code.

(4) For the purposes of this section, explicit informed consent in relation to
a telephone marketing agreement means the consent to make the agreement-

   (a)  must be given by the purchaser directly to the supplier or a person
        acting on behalf of the supplier-

   (i)  in writing signed by the purchaser; or

   (ii) orally; and

   (b)  if given orally, must be recorded in accordance with subsection (5);
        and

   (c)  must be given only after the supplier or a person acting on behalf of
        the supplier has, clearly, fully and adequately disclosed all matters
        relevant to the consent of the purchaser, including each specific
        purpose or use of the consent.

(5) For the purposes of subsection (4)(b), the supplier or a person acting on
behalf of the supplier must record the consent-

   (a)  in writing; or

   (b)  with the prior consent of the purchaser, by means of a recording
        device.

(6) The supplier or a person acting on behalf of a supplier must not record
(otherwise than in writing) the purchaser's consent to make a telephone
marketing agreement, unless the purchaser has given his or her prior consent
to the recording.

Penalty: 60 penalty units, in the case of a natural person. 120 penalty units,
in the case of a body corporate.

(7) The supplier must keep the record of the purchaser's explicit informed
consent for 12 months.

Penalty: 60 penalty units, in the case of a natural person. 120 penalty units,
in the case of a body corporate.



(8) The supplier or a person acting on behalf of the supplier must not enter,
or purport to enter, into a telephone marketing agreement unless that supplier
or person has, during the telephone negotiations which led to the agreement or
purported agreement, advised the purchaser of the right to cancel the
agreement within the cooling-off period applying to that agreement.

Penalty: 120 penalty units, in the case of a natural person. 240 penalty
units, in the case of a body corporate.