Information on this page will help training providers and marketers understand their obligations under the ACL. The Australian Consumer Law (ACL) is Australia’s national consumer protection and fair trading law. It gives consumers options for redress (refunds) and allows regulators like NSW Fair Trading to take enforcement action against businesses that break the law. It sets out the rights of consumers and the obligations of businesses, including training providers and marketers.
The ACL applies to all education and training services, including:
The ACL also applies when these services are provided by third parties on behalf of a training provider.
The ACL prohibits misleading and deceptive conduct by businesses in their dealings with consumers. It is illegal to falsely or misleadingly represent the:
Examples might include misleading advice about:
Unconscionable conduct – conduct against good conscience – is also illegal. Extra care must be taken when marketing to vulnerable consumers who may be less able to understand what they are signing up for.
This might include consumers:
The responsibility is on the training provider or marketer to ensure students meet certain basic prerequisites before they can be enrolled. Prerequisites might include English language proficiency or meeting particular licencing or regulatory requirements.
Targeting vulnerable consumers with the promise of incentives if they sign up to a VET FEE-HELP loan, without fully explaining the course and loan scheme, could also be considered unconscionable conduct. Offering incentives to consumers to enrol in a VET FEE-HELP course was banned from 1 April 2015.
Courts can impose penalties for these offences of up to $1.1 million for corporations and $220,000 for individuals. Fair Trading can also seek injunctions or court orders for refunds and damages.
Go to the Misleading or deceptive conduct page on the Fair Trading website for more information. Also consider getting legal advice about particular business practices and compliance with the law.
Some training providers and marketers approach consumers door-to-door, in public, or over the phone. If a consumer signs up for a course after being approached like this, it’s called an ‘unsolicited consumer agreement’. Consumers have extra protections in these circumstances, because the training provider or marketer initiated contact, not the consumer.
The extra protections include:
The cooling-off period is designed to allow the consumer time to fully consider their personal circumstances and the contract terms, and cancel the contract without penalty if they change their mind. If a training provider or marketer fails to afford a consumer their rights in an unsolicited sale, the cooling-off period automatically extends to 6 months.
Complaints commonly received by regulators allege that:
Courts can impose penalties for these offences of up to $50,000 for corporations and $10,000 for individuals. Go to the Unsolicited consumer agreements page on the Fair Trading website for more information.
Training providers and marketers often use standard, ‘take it or leave it’ style contracts when signing up consumers, which provides the consumer without any genuine opportunity to negotiate the contract terms. Care needs to be taken with this style of contracts to ensure they do not contain ‘unfair’ terms that:
Only courts can declare terms ‘unfair’. If a court does so, the unfair terms are removed, but the rest of the contract stands. Go to the Unfair contract terms page on the Fair Trading website for more information. Training providers and marketers are encouraged to review their contracts and consider getting legal advice if necessary.
When consumers buy services, they come with automatic guarantees.
If services do not meet the consumer guarantees, consumers can claim remedies including:
Go to the Consumer guarantees page on the Fair Trading website for more information.
A number of Commonwealth Government reforms have been announced that affect suppliers and marketers in the vocational education and training sector. Information on these reforms is available on the Department of Education and Training’s VET Reform website (www.vetreform.industry.gov.au) and VET FEE-HELP Reforms website (www.education.gov.au/vet-fee-help-reforms).
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