Know your rights

We look at nine common scenarios and show you how to assert your rights.
 
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01 .Stand your ground

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What can you do when you know you’re getting a raw deal as a consumer, but aren’t sure how to turn it around? CHOICE outlines nine everyday scenarios - from bad haircuts to stopping a direct debit payment - to help empower you to become a more assertive consumer.

1. Your time is being used up by telemarketers

Under fair trading laws in most states, telemarketers and door-to-door sales reps can only contact you at home or over the phone between 9am and 5pm on Saturdays and between 9am and 8pm weekdays. If you have a bad experience with a door-to-door sales rep or telemarketer, you can complain to the fair trading offices in your state (see Consumer Protection Contacts, page 32). You can also put up a “do not knock” sign to deter reps, who are liable for unlawful trespass under Commonwealth law  if they do not heed the signs. You can list your fixed line and mobile numbers on the Do Not Call Register (www.donotcallregister.gov.au or phone 1300 79 29 58) to prevent telemarketers from calling you.

2. Your money is being taken by direct debit

Under the Code of Banking Practice, you don’t need to get permission from or contact the merchant before contacting your bank to stop a direct debit. The bank must cancel the direct debit promptly and make sure no more money is debited from your account. But if you’re still under a hire-purchase contract, you need to contact the company first as cancelling the direct debit may be a legal breach of the payment contract you have signed.

3. Your mail or parcel never arrived

You may be able to claim compensation, provided you have proof of postage. If you’re the sender, you must provide proof such as the “sender-to-keep” sticker on the envelope for Express Post, or the receipt for registered post. For regular parcels, keep your postage-paid receipt from the post office. If it’s a normal letter you’re sending without going to the post office, you can always keep a photocopy of the envelope with the stamp on it. Receivers who find damaged items in the post should present them immediately to Australia Post with the original packaging. However, compensation for missing or damaged items is limited to whether the sender bought “Extra Cover” and depends on the value of the item and how the sender insured the sent article. For a lost letter or parcel sent by registered post, the claim limit is $100. If the cost of your gift exceeds $100, it’s better to buy Extra Cover, which costs $1.30 for every $100 insured. You can buy Extra Cover of up to $650 for a maximum claim of $5000. Go to www.auspost.com.au and click on General Services for more details.

4. You order a meal that’s not up to scratch

Taste is subjective, so asserting your rights about unsatisfying food in restaurants can be tricky. According to state fair trading laws, you have the right to a refund or remedy if the products or services do not meet reasonable expectations. But if you think the food is too salty or sour, you have the right not to eat it and request a replacement. Ask to speak with the manager immediately and explain why you think the food did not meet its reasonable standard. You won’t have a case if you polish off a meal that you claim is not up to scratch and refuse to pay. If hygiene is the issue, such as being served uncooked chicken or mouldy bread, you can make a case for not paying for the dish and alert your local council or the food authorities in your state, such as the NSW Food Authority (www.foodauthority.nsw.gov.au) or Victorian Government Health Information (www.health.vic.gov.au).

5. You have a sleepless night in a hotel

If you’re given a room next to the building’s main generator and can’t sleep, call reception immediately. You have the right to ask for a refund, not to pay for the room or be transferred to another room. Under the Commonwealth Trade Practices Act, accommodation providers must offer a stay that fits its purpose – that is, a good night’s sleep. According to Peter Hook, general manager of communications for Accor (Asia Pacific), the global hotel holding group that owns Sofitel, Novotel, and Ibis hotels, “If a guest is disturbed by noise, we immediately try to allocate them a room as far away from the noise as possible. If that’s impossible because the hotel is full, we will consider compensation.” Hook added that, where possible, hotel staff will always try to reallocate a room if guests are concerned about too much light or facing a road. But don’t try asking for a bigger room than the compact one you booked, unless you’re prepared to pay extra.

6. Your car returns with more faults than it went into repair with

Under the Trade Practices Act, services must be rendered with due care and skill. Where a repairer introduces a fault to your vehicle under their care – accidentally or otherwise – it must be rectified at no cost. Your best protection is going for a quick spin in your repaired vehicle as soon as you pick it up. If you discover the fault later, return it to the repairer as soon as possible. In NSW, the ACT and WA, motor vehicle repairers must, by law, provide cost estimates to consumers before proceeding with work on your vehicle. In NSW, you can take your dispute to the Motor Vehicle Repair Industry Authority or Department of Commerce in WA. You can also approach your state’s industry bodies for help, such as the Victorian Automobile Chamber of Commerce (www.vacc.com.au) or Motor Traders Association if you’re in WA, SA, Queensland, ACT or NT. They can put you in touch with an accredited repairer to check if any work was done on your car that should not have been.

7. Your credit card is billed for damages to a rental vehicle

Many car rental companies include a clause to this effect in their contracts: “You authorise XX to charge all moneys payable to XX under the rental agreement to your credit card or charge account.” This allows them to charge you for damages they find on the vehicle after you’ve returned it. Before you sign the contract, check the terms carefully and ask about the add-on charges for additional kilometres, administration fees and hire of equipment such as a navigation device. Always keep your contract with you and insist on a thorough inspection, in your presence, before and after renting the vehicle, especially at airports where many people are rushing to catch their flights. If you cannot have an inspection, then take digital photos of all aspects of the car to produce later if there is a dispute over the condition. Victoria is the only state where it is illegal for car rental companies to make unauthorised and unexpected debits from your credit card. CHOICE has actively campaigned for a uniform, nationwide legislation against such unfair contract terms, which will take effect early next year.

8. Your product breaks down under warranty

When a product breaks down under warranty, return it to the retailer. A retailer may offer a repair, exchange or credit note, but they cannot insist on it and you’re entitled to ask for a full refund – even if the item was discounted. It is illegal for retailers to tell you they cannot do anything, or that you must contact the manufacturer yourself (search for “refunds” at www.accc.gov.au), even if the product has a manufacturing fault. In any case, a manufacturer will not be able to give you a refund or replacement unless you bought the item directly from them.

9. You’re given a bad haircut

In 2006, a NSW woman who’d had her waist-length hair lopped off to the neck was so distressed she sued her hairdresser for $25,000. She paid $67 to lodge her case at the Consumer, Trader and Tenancy Tribunal, where her hairdresser insisted she had agreed with his suggestions and cut accordingly. The tribunal accepted there was nothing unprofessional about the haircut, but ruled “it is enough that she did not want the work in the way it was performed” and ordered the salon to pay her $750 for emotional distress. You can contact similar small claims tribunals in your state for personal services you believe are unprofessional – although claiming $25,000 may be ambitious.

 
 

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Here are some useful contacts if you're unsure of your rights as a consumer:

• ACT Office of Regulatory Services www.ors.fairtrading.act.gov.au or phone (02) 6207 0400.
• NSW Office of Fair Trading www.fairtrading.nsw.gov.au or phone 13 32 20.
• NT Consumer Affairs www.consumeraffairs.nt.gov.au or phone (08) 8999 1999 or 1800 01 93 19.
• Queensland Office of Fair Trading www.fairtrading.qld.gov.au or phone 13 13 04 .
• SA Office of Consumer and Business Affairs www.ocba.sa.gov.au or phone (08) 8204 9777.
• Tasmania Office of Consumer Affairs and Fair Trading www.consumer.tas.gov.au or phone 1300 654 499 (toll-free).
• Victoria Consumer Affairs Victoria www.consumer.vic.gov.au or phone 1300 558 181.
• WA Department of Commerce www.commerce.wa.gov.au or phone 1300 304 054.

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