FAIR TRADING ACT 1989 – SECT 52 52 Assertion of right to payment for unsolicited goods or services, or for making entry in directory–TPA s 64.

This is interesting. From the Queensland Consolidated Acts. From the way I read the article, the ‘scammers’ should be up for a maximum penalty of 540 penalty units for demanding payment for services we haven’t requested and threatening us with legal action. I think I read that wrong. I hate lawyer speak.

When I re-read it, it seems the ‘scammers’ are pretty much covered.
(3) The ‘scammers’ feel they have ‘reasonable cause to believe, that the other person has authorised the making of the entry’ so can claim money from us.
(4) However, we don’t have to pay, and if a payment was made we are entitled to get the money back, if authorisation (6) in the form of a signed or authorised document showing the particulars of the solicitation hasn’t been provided.

That’s my take on it, so please correct me if I am wrong, but it doesn’t look like the ‘scammers’ can be slugged with hefty fines like I had hoped.

FAIR TRADING ACT 1989 – SECT 52
52 Assertion of right to payment for unsolicited goods or services, or for making entry in directory–TPA s 64

(1) A person shall not, in trade or commerce, assert a right to payment from another person for unsolicited goods unless the person asserting the right has reasonable cause to believe that there is a right to payment.

Maximum penalty–540 penalty units.

(2) A person shall not, in trade or commerce, assert a right to payment from another person for unsolicited services unless the person asserting the right has reasonable cause to believe that there is a right to payment.

Maximum penalty–540 penalty units.

(3) A person shall not assert a right to payment from another person of a charge for the making in a directory of an entry relating to the other person, or to the profession, business, trade or occupation of the other person, unless the person asserting the right knows, or has reasonable cause to believe, that the other person has authorised the making of the entry.

Maximum penalty–540 penalty units.

(4) A person is not liable to make any payment to another person, and is entitled to recover by action in a court of competent jurisdiction against another person any payment made by the person to the other person, in full or part satisfaction of a charge for the making of an entry in a directory unless the first person has authorised the making of the entry.

(5) For the purposes of this section, a person shall be taken to assert a right to payment from another person for unsolicited goods or unsolicited services, or of a charge for the making of an entry in a directory, if the first person–

(a) makes a demand for the payment or asserts a present or prospective right to the payment; or

(b) threatens to bring any legal proceedings with a view to obtaining the payment; or

(c) places or causes to be placed the name of the other person on a list of defaulters or debtors, or threatens to do so, with a view to obtaining the payment; or

(d) invokes or causes to be invoked any other collection procedure, or threatens to do so, with a view to obtaining the payment; or

(e) sends an invoice or other document stating the amount of the payment or stating the price of the goods or services or the charge for making the entry, unless the document contains a warning statement complying with subsection (5A).

(5A) For subsection (5)(e), a warning statement must–

(a) be printed, at the top of the first page of the document, in upper case and a type not smaller than 18-point; and

(b) state ‘THIS IS A SOLICITATION, NOT AN INVOICE FOR A DEBT INCURRED BY YOU.’

(6) A person shall not be taken for the purposes of this section to have authorised the making of an entry in a directory unless–

(a) a document authorising the making of the entry has been signed by, or with the authority of, the person; and

(b) the document specifies–

(i) the name of the directory; and

(ii) the name and address of the person publishing the directory; and

(iii) particulars of the entry; and

(iv) the amount of the charge for the making of the entry or the basis on which the charge is, or is to be, calculated; and

(c) a copy of the document has been given to the person before the right to payment of a charge for the making of the entry is asserted. (7) For the purposes of this section, an invoice or other document purporting to have been sent by or on behalf of a person shall be taken to have been sent by that person unless the contrary is established.

(8) In a proceeding against a person in respect of a contravention of this section–

(a) in the case of a contravention constituted by asserting a right to payment from another person for unsolicited goods or unsolicited services–the burden lies on the defendant of proving that the defendant had reasonable cause to believe that there was a right to payment; or

(b) in the case of a contravention constituted by asserting a right to payment from another person of a charge for the making of an entry in a directory–the burden lies on the defendant of proving that the defendant knew or had reasonable cause to believe that the other person had authorised the making of the entry.

(9) In this section–

directory includes a journal, magazine, and similar publication, but does not include–

(a) a publication published in good faith as a newspaper at regular intervals; and

(b) a publication published, or to be published, by or under the authority of the Australian and Overseas Telecommunications Corporation.

entry, in a directory, includes an advertisement promoting a business.

making, in relation to an entry in a directory, means including, or arranging for the inclusion of, the entry.

SA businesses losing thousands to fake invoice scams – Archived News.

This article is from the Premier of South Australia’s website from October 2007. 2007 and they still haven’t done anything to stop it!?!

SA businesses losing thousands to fake invoice scams
23/10/2007

Another false billing scam has been doing the rounds in South Australia. Targeting local businesses, the scam artists send invoices for advertising placements in phoney publications, leaving the business community hundreds of thousands of dollars out of pocket.

Since late last year, Consumer Affairs has received reports from businesses in regards to 30 different publications, where it has been alleged they have been the target or victim of ‘false billing’. Investigations have revealed the publications are produced by 25 separate companies and one individual.

The publishers are based in QLD and NSW, however a number of links between some of the publishers have been detected.

Business owners have expressed concern about invoices they have received for advertising space that they never authorised. Minister for Consumer Affairs, Jennifer Rankine, is urging businesses to be wary of advertising in a variety of publications that deal with community issues such as drugs, accident support, volunteering, policing and road safety. The publications are alleged to be distributed nationally.

Minister for Consumer Affairs, Jennifer Rankine, said, Individuals in the business community are a red hot target for these fraudsters and are consistently being harassed, and in some cases threatened, into paying for advertising material they have never actually ordered.

SA businesses have received invoices for advertisements anywhere between $200 and $500. The majority have This is a solicitation not an invoice for a debt incurred by you written on the invoice statement.

Consumer Affairs officers have been compiling dozens of witness statements from many business owners whose organisations feature in the bogus publications, which look surprisingly authentic.

It is disturbing that we are finding many different advertisements for all sorts of businesses on the same pages of the same publication. Consumer Affairs has obtained many copies of the publications that look identical, but contain different advertisements. This makes us very suspicious that these publications are printed specifically for individual businesses in a ploy to encourage payment, Ms Rankine said.

Common identifiers of false billing scams include:

• Selling advertising space for a publication that either does not exist or has limited circulation
• Making false claims that the publication is affiliated with a particular community group or well known organisation
• Invoicing businesses for advertisements that were never authorised
• Contacting businesses to confirm an advertisement has allegedly previously been placed when in fact this never occurred
• Contacting businesses and advising that the publication has been printed and is ready to be sent to them when in fact the business never agreed to place an advertisement in the publication

Three companies (two from QLD and one from NSW) have already been reported for various breaches of the Fair Trading Act, with charges yet to be laid.

Due to this problem extending across the nation, I have written to the Federal Treasurer, forwarding him a list of false ABN’s possibly being used by these suspects.

In the meantime, Ms Rankine is urging businesses to keep meticulous records of any advertising that is authorised. This should help protect any business from unscrupulous operators.

If every business was aware of the scam and refused to pay for unauthorised advertising, in time the scammers would realise the hopelessness of the situation, close their doors and go away.

The message is simple. If you did not authorise the advertisement do not pay the invoice.

If any business suspects they are being targeted by a false billing scam they should contact Consumer Affairs on 8204 9777. For further information about these and other scams visit www.ocba.sa.gov.au.

I sent a query to the Library I mentioned in the previous post and a kind soul there found the book in question, as well as the National Emergency Relief Guide, and confirmed that there are adverts in these books and that these were received in the same manner as we have received our copies. The Library has no requirement for these publications, so if you would like to have your very own copy, you might like to quickly contact them, before they are recycled.

Another Government Council, Cuballing, got ‘fleeced’ (pun intended) by paying $425.70 for ‘advertising’ in the National Emergency Relief Guide in November 2007. Either, other State’s Councils aren’t getting caught out by the unwanted solicitations, or they are better at hiding their minutes away from Google’s prying eyes.

After receiving a comment from Paul about his dealings with “The Underprivileged Children’s Guide”, I decided to have a quick Google and see what else came up.

It turns out that the guide may well be a legitimate book and is listed by the FPWA Sexual Health Services WA Library, although it isn’t available for loan. I’ve never doubted the information that has been in the proof books that we have received, as they were quite interesting, it was only the advertising that was dodgy. Does it mean that an old stand alone publication has been used and simply had advertising added to it?

Another interesting discovery was that in June 2008, the Joondalup (WA) Council paid $423.50 (Page 78 of the pdf) for “Advertising” in The Underprivileged Children’s Guide.

An article I missed before… Scams rife, fraudsters net victims

TOOWOOMBA resident June Winter is one of a long list of victims affected by cruel scams in the Garden City.

A bill of $400 came in her letterbox a few weeks ago asking her to pay for an advertisement which the company claimed she placed in The Underprivileged Children’s Guide.

“I was unaware that I had even put an ad in this publication and was continually harassed by a female operator asking for the money to be paid,” she said.

“The female operator said I had agreed on the ad three months ago and I was sure this wasn’t the case. A booklet with my business name was sent out to me a few days later.

I realised that there were more Toowoomba businesses featured.”

She contacted the various business owners who were all unaware of the publication.

“Everyone I contacted was furious about what had happened and had also been harassed by a female operator to pay the bill,” she said. “I even searched for the company, but found that it ceased to exist. I contacted Fair Trading and I am waiting for their response.”

Member for Toowoomba North Kerry Shine has warned Toowoomba residents not to get caught by scams. He has launched Fraud Fortnight and said the campaign aimed to raise awareness about the serious threat to personal identity and financial security posed by scams.

“The Office of Fair Trading received more than 1625 complaints about scams last year with 217 coming from Toowoomba alone,” Mr Shine said.

“These figures are only a fraction of the number of scams we know are circulating in the community.

“Many victims of scams don’t report the crime because they feel they’ve been duped and they’re willing to bear the amount of money lost out of fear of embarrassment.

“Fraudsters can make tens of thousands of dollars from unsuspecting victims and they don’t care who they target.”

The top five scams reported in Toowoomba are fake lotteries, chain letters, invoice fraud, which targets business through fake advertising and directory listings, advance fee fraud (also referred to as Nigerian scams) and gambling software.

I am very cynical thanks to the number of bogus phone calls we have been getting of late and yesterday I received an interesting phone call from a lady claiming to be studying typesetting. I’m kicking myself for not going into it further with her, but essentially her teacher had given her one of the publications for her to practice her new found trade on.

Bells were ringing here as I’m thinking that they are hitting us up to try and make the adverts closer to being correct by asking us for artwork and correct business details so they can ‘practice’. Cynicism once more, but I feel if they get the adverts closer then perhaps they will have a greater chance of getting the money from their ‘marks’.

Another one to watch out for. I’d be interested to hear from these ‘students’ again and will try to press them for more information.

I sent an email to WA Scamnet, part of the WA Department of Commerce, because I wanted to get some information about the false information, ie. incorrect ABN, being printed on the solicitation letter that we received previously. Below is the helpful advice I received from them. Admittedly I haven’t followed up on the information, but I plan to in the future.

Thankyou for your email.

I recommend that you verify the business registration details of this company at the business names division of Office of FairTrading in Queensland.
Their contact number is 13 13 04. You may enquire with business names if the ABN Number must be shown on invoices.

You may also conduct a company search Australia wide at the Australian Securities Investment Commission.Their contact number is 1300 300 630.

If the business is registered and you believe that the solicitation is false and misleading because of have either ommitting information or having false information you may lodge a complaint with the Australian Competition & Consumer Commission (ACCC) to assess possible breach of the Trade Practice Act 1974. Their contact number is 1300 302 021. It may also be a regulation under the Trade Practice Act that the ABN must be displayed. Please check with the ACCC.

Please accept some additional information on unsolicited Invoicing

It is a breach of the Fair Trading Act for anyone to assert a right to payment from you for unsolicited services, including advertising, unless the person believes there is a right to payment.

It is also a breach for someone to falsely represent that you or a representative of your business has agreed to acquire their services.

Scammers who usually telephone their victims, posing as reputable publishers selling advertising space or directory listings are referred to as ‘blowers’.They may repeatedly send invoices and demand payment before they receive any signed authorisation from you.

It is common for scammers to claim fees for advertising or directory listings in publications, which often do not exist. And if the publication does exist it is usually of poor quality and low in circulation.

Telephone canvassers will often ring to “confirm” an earlier booking. This ploy is designed to trap the unwary into believing someone else in the business had already authorised the advertisement. They often pretend that the initial call comes from the Charity or Government Department and then a few days later another from a separate publisher or printer.

It is important to note that you are under no legal obligation to pay an account or a claim for payment for an product or service , if you did not authorise the contract.

In the case where the advertisement is in a directory, an entry is only authorised if the publisher has obtained a signed document giving that authority from the customer.

It is recommended that you never offer information over the telephone about your business. This information is often used to allege you or someone they can identify by name or position has authorised the advertisement.

However, the following procedures can be adopted in order to avoid unethical traders asserting a right to payment for unsolicited products and services.

1. All orders regardless of how small should be recorded and crosschecked by the person who pays the accounts;
2. Never pay anything that has not been authorised or fully understood;
3. Do not give personal or banking details to anyone you do not know and trust;
4. Request the street address and phone number of any trader offering a product or service. Check them out with Consumer Protection;
5. If a call or letter is supposedly related to an existing charity, association or alleged Government Department on whose behalf it is said to be published contact the
organisation yourself to verify;
6. Require sighting of the proof copy of any proposed advertising before giving approval to publish;
7. Request a copy of your signed authority;
8. Require evidence of distribution of the magazine (not just printing) before payment of the account, some are sent only to advertisers;
9. Do not take verbal assurances on their face value, check;
10. Be wary of letters advising you to register or renew your business domain. Some scammers charge more than double the going rate for the service or trick you by
offering to register a very similar name to your own;
11. Alert WA ScamNet.

The Department is confident that if the above measures are adopted the less likely it is that businesses will be taken advantage of.

You are welcome to continue to forward further scams to the Department, which will be kept on our database for future reference. Our reply paid address is:

WA Scam Net
Reply Paid 64772
Locked Bag 14
CLOISTERS SQUARE WA 6850

Alternatively you can email wascamnet.

Thank you for your continued support of WA Scam Net.

If you have any further queries you are welcome to call our Contact Centre on 1300 30 40 54, Monday to Friday, 8.30am – 5pm.

Kind Regards

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