How to make sure you are not impacted by misleading debt collection notices

With three interest rate hikes, rising cost of living, and a Middle East war driving up fuel prices, more Australians are falling behind on their debt repayments.

And that has led to a 12 per cent spike in the number of people calling the National Debt Helpline.

In fact, an additional 20,000 people contacted the organisation for debt advice in the year to August, taking the total to 187,905.

About 15,000 of those were directly related to debt collection.

Adding to the stress is the fact that debt collectors are increasingly using artificial intelligence (AI) to ramp up their efforts to claw back money from debt-ridden consumers.

One woman was sent repeated legal threats, trying to force her to pay a claim she was never liable for, which legal experts described as the "worst kind" of bullying. 

It comes as the ACCC takes ARMA Group and Force Legal to federal court, alleging that between them they sent 320,000 debt enforcement notices to individuals that were allegedly misleading.

So how is a debt collector meant to engage with an individual, and what rights does one have in the process? 

What rights does an individual have?

The coordinator of the National Debt Helpline, Vicki Staff, said the first thing to do was work out if the debt was valid. 

"For example, you may have already paid the debt … I recommend writing to the debt collector and letting them know that you have paid it in full and provide any copies of records if you have something to prove that the debt is repaid," she said.

If the debt is more than three years old in the Northern Territory, and more than six years old elsewhere, that means it is statute-barred, meaning the legal time limit to start court proceedings has expired.

"If it's an unsecured debt and you've not made a payment, you've not acknowledged the debt in writing, and there's no court judgment that's been entered against you, you're in a good position to be able to challenge it," Ms Staff said.

But if the debt was valid, she said "crunch the numbers" to see what was realistic for repayment.

"Get your ducks in a row first [and] get an agreement from the debt collector as to an affordable payment arrangement," Ms Staff said.

Under the National Credit Code, an individual may be able to change the terms of their consumer credit contract to allow them to pause or reduce payments for a period of time.

If you're not happy with the process, Ms Staff said there were other avenues. 

"Check to find if your debt collector is actually registered with an external ombudsman, [and] you can make a complaint," she said.

There's also the Australian Financial Complaints Authority (AFCA).

"If the creditor is a financial services provider, you can take a complaint to [AFCA]," Nicola Howell, senior law lecturer at the Queensland University of Technology, said.

"Financial services providers should have an internal dispute resolution process as well that you can go to and seek to resolve the matter."

Expectations of a debt collector

Just like other industries, debt collector conduct is governed under Australian consumer law. 

That means there are standards and expectations in place when looking to recover costs.

"Being proactive and being open to affordable hardship arrangements for people … communicating really clearly with customers around what was expected," Ms Staff said.

Dr Howell said if a debt collector did not act appropriately, there were consequences. 

"The prohibitions against misleading and deceptive conduct or unconscionable conduct apply to businesses that are engaging in trade or commerce," she said.

"There's no carve-out for lawyers in terms of how they're conducting their business in that interface with consumers."