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The debt collection guideline: the public consultation process



ASIC and the Australian Competition and Consumer Commission (ACCC) released their Debt collection guideline for collectors and creditors in October 2005. The guideline was produced following two rounds of public consultation.

Find out more about the final guidelines and download a copy

Summary of changes made to the final guideline after the second round of public consultation
Second consultation draft and submissions
First consultation draft and submissions


Summary of changes made to the final guideline after the second round of public consultation


This table summarises the main changes made to Debt Collection guideline: for collectors and creditors in response to the second round of public consultations undertaken by ASIC and the ACCC. The table compares the final guideline as published on 14 October 2005 with the second consultation draft released in July 2005.

Note - this table does not seek to reflect minor changes to wording, the re-positioning of statements, and other minor changes to the guideline.

Section of guidelineSummary of changeComment
Part 1 – What does this guideline do? Title changed from This guideline is not law; some rearrangement of contentGives section a more positive cast
Part 1 – This guideline applies to creditors as well as collectorsMore qualified summary of creditor's liability for actions of agentBetter reflects legal position
Part 1 – Debtors' responsibilitiesDebtor's obligation to be candid recognised Responds to industry submissions
Part 1 – A flexible, fair and realistic approach to collection Creditor willingness to work with customers in difficulties further recognisedResponds to industry submissions
Part 2.2 – Making contact with the debtor [a, b]Takes a more flexible approach to divulging collectors' identityBetter reflects legal position and practical issues faced by collectors
Part 2.3 – Hours of contact
[a]
Public holiday recommendations limited to national public holidays; recommendatory status further emphasisedResponds to industry concern that meaning of 'public holiday' had been unclear. Better reflects legal position
Part 2.4 – Frequency of contact [c]Recommended contact limits only apply to when contact is actually made Clarifies guidance/ drafting intention
Part 2.4 – Frequency of contact [h]More frequent contact with third parties acceptable when permission has been sought and given in advanceProvides additional flexibility to industry while continuing to constrain unwanted contact
Part 2.5 – Location of contact [a]Recognises a letter as a preferable means of contactResponds to consumer, government agency submissions
Part 2.7 – Privacy obligations to the debtor and third parties [b]Clarifies that telling a debtor's neighbour the reason for trying to find the debtor will (not may) be disclosing personal informationBetter reflects legal position
Part 2.7 – Privacy obligations to the debtor and third parties [e, 1st dot]Recognises that information may be kept for an allowable purpose, and may be kept if permanently de-identifiedBetter reflects legal position
Part 2.7 – Privacy obligations to the debtor and third parties [f]Specifically recognises privacy obligations of third partiesReflects legal position. Responds to submissions of consumer and privacy advocates
Part 2.9 – Record keepingTitle changed from Keeping accurate recordsConsistent with general use of descriptive titles
Part 2.10 – Providing information and documents [c, e, f, i, j]Clarifies the primary legal responsibility of creditors (as distinct from agents) in providing information and documentsBetter reflects legal position. Responds to industry submissions
Part 2.10 – Providing information and documents
[i, j]
Recognises need for appropriate contractual and operational arrangements between creditors and agentsResponds to view of broad range of stakeholders that this issue be canvassed
Part 2.12 – If liability is disputed [b]Specifies that 'further collection activity' includes credit report listingConsistent with approach elsewhere in guideline. Responds to consumer group submissions
Part 2.12 – If liability is disputed [e]Spells out type of letter creditors might send when liability is not able to be establishedResponds to concern that letter of acknowledgement phrase used in previous draft was unclear
Part 2.12 – If liability is disputed [i]Broadens circumstances when further communication following formal denial of liability is appropriateProvides additional flexibility to industry while continuing to constrain unwanted contact
Part 2.13 – Repayment negotiations [b] In some circumstances prolonged repayment negotiations may not be in debtors' interestsReflects a factor creditors/collectors should consider, and which the Guideline needs to acknowledge
Part 2.13 – Repayment negotiations [e, 2nd dot]Removes suggestion that collectors have a positive obligation to advise debtor on rights Better reflects legal position. Better recognises role of collectors
Part 2.13 – Repayment negotiations [g, h]Recognises obligation to document repayment arrangements. Limits recommendation to provide written agreement to situation where this is requested, but encourages more general provision as good practice Better reflects legal position. Seeks to provide a fair balance between consumer protection and costs to industry
Part 2.14 – Contact when a payment arrangement is in place [a]Clarifies that ongoing provision of account statements is not a general contractual requirementReflects legal position (e.g., for fixed term loans)
Part 2.18 – Conduct towards family members and other third parties [i, j]Provides additional guidance on avoiding harassment or coercion, and/or unconscionable conduct, when dealing with minorsSeeks to respond to concerns about protection of children within a consumer law framework
Part 2.19 – Representations about consequences of non-payment [b, footnotes]Further emphasis on right of collector to accurately explain consequences of non-payment. References to State and Territory legislation addedResponds to industry submissions
Part 2.19 – Representations about consequences of non-payment [I, 1st dot]Adverse credit listing should not be made when claim that debt is not owed is being investigatedSee Part 2.12 above
Part 2.20 – Representations about legal status [b, c]Implication that any representation that a statute-barred debt is payable is a misrepresentation has been removed. Reference to statutory period in NT includedBetter reflects legal position
Part 2.21 – Legal action and procedures [c, 4th dot, footnotes]Additional example of misrepresentations about legal process added. References to State and Territory legislation added
Part 2.21 – Legal action and procedures [e]Recommendation about commencement of proceedings in another jurisdiction made more circumscribed Better reflects legal position
Appendix B – Other statutory and common law obligations and remedies References to State and Territory legislation added. Section on State and territory limitation of actions laws added
Appendix C – Glossary Definitions of Complaint and Dispute addedDefinitions reflect general use; see also Part 22.2, 22.3


Second consultation draft and submissions


The second consultation draft of the ACCC/ASIC Debt collection guideline: for collectors and creditors was issued by ASIC and the ACCC in July 2005.

More than 50 submissions, including many detailed and useful comments, were received in response to the first draft.

Further stakeholder comments were then sought on the additional content and changes made to the guideline, including any new implementation issues posed by the revised draft. For more detail about these changes read ASIC's Information Release 05-38.

A number of submissions were received in response to the second consultation draft. The submissions for which consent to publish has been given are available to be downloaded in the following list. In addition to the following submissions, a number of other interested parties made confidential submissions or advised that they did not have specific comments on the second draft.

Download a copy of: The following submissions can be downloaded as PDF files: [ANZ
Australian Bankers' Association
Australian Finance Conference
Australian Privacy Foundation
Baycorp Advantage
Credit Union Services Corporation (Australia) Limited (CUSCAL)
IMA, ACA & AICM
Institute of Mercantile Agents (WA Division)
Joint Consumer Group Submission
NSW Office of Fair Trading
Office of the Privacy Commissioner (Federal)
Robert Stack Associates
Victoria Legal Aid


First consultation draft and submissions


The first consultation draft of the ACCC/ASIC Debt collection guideline: for collectors and creditors, was released for public comment in February 2005. For more information read our information release IR 05-06.

Download a copy of: ASIC and the ACCC received over 50 submissions in response to this draft. We are grateful to all who made submissions, and for the detail and general quality of the submissions received.

Submissions for which consent has been given to be published can be viewed or downloaded from the list below.

The following submissions can be downloaded as PDF files:

A debt collection industry member (28 KB)
Access Credit Management (33 KB)
Australia and New Zealand Energy and Water Ombudsman Network (ANZEWON) (131 KB)
Australian Bankers' Association (175 KB)
Australian Finance Conference (104 KB)
Baycorp Advantage Collection Services (104 KB)
Banking and Financial Services Ombudsman (BFSO) (116 KB)
Care Financial Counselling Service (46 KB)
Chancellors Debt Collection Services Pty Ltd - Submission 1 (13 KB)
Chancellors Debt Collection Services Pty Ltd - Submission 2 (25 KB)
Collection House Limited (210 KB)
Consumer Credit Legal Service WA (CCLSWA) (49 KB)
Credit Union Services Corporation (Australia) Ltd (CUSCAL) (89 KB)
Financial Co-operative Dispute Resolution Scheme (FCDRS) (40 KB)
Institute of Mercantile Agents (WA division) (75 KB)
IMA, Australian Collectors Association & Australian Institute of Credit Management (211 KB)
Joint Consumer Group (386 KB)
Legal Aid Commission of New South Wales (112 KB)
Lismore & District Financial Counselling Service (30 KB)
Local Authorities Revenue Management Assoc (Qld) Inc (LARMA) (62 KB)
Mr David Lawson (17 KB)
Mr David Wilson (17 KB)
National Recoveries & Investigations (17 KB)
National Welfare Rights Centre (80 KB)
Northern Community Legal Service Inc (40 KB)
NSW Office of Fair Trading (49 KB)
Public Interest Law Clearing House (PILCH) (164 KB)
Redfern Legal Centre (36 KB)
Telecommunications Industry Ombudsman (23 KB)
Telstra (34 KB)
The Barclay MIS Group of Companies (110 KB)
Traralgon Collection Agency (20 KB)
Victoria Legal Aid (36 KB)


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