Mystery trip books Top Deck tour of Australian Consumer Law

Attorney-General and Minister for Justice, Minister for Women and Minister for the Prevention of Domestic and Family Violence The Honourable Shannon Fentiman

An Office of Fair Trading (OFT) investigation has seen a tour operator enter into an enforceable undertaking for alleged breaches of the Australian Consumer Law (ACL).

In March 2020, during the start of the COVID-19 pandemic, state, territory and federal consumer protection regulators around Australia began to receive complaints alleging Queensland-based Top Deck Tours Pty Ltd were not honouring the terms and conditions in place when their travel bookings were made.

Attorney-General and Minister for Justice Shannon Fentiman said on behalf of Australia’s consumer protection regulators, the Office of Fair Trading commenced an investigation into the complaints.

“We know COVID-19 travel restrictions saw the cancellation of a large number of planned holidays both domestic and overseas,” Minister Fentiman said.

“It’s so important for Queenslanders to know their consumer rights when it comes to holiday booking cancellations and refunds under the Australian Consumer Law.”

Investigations in February 2021 found that between 17 November 2020 and 15 January 2021, Top Deck had emailed 450 of its existing customers who had been provided travel credits for cancelled bookings.

The email advised them that they had a new 2021 Top Deck trip booked. The customers had no prior communication about this trip until they received an email containing the new trip departure date, the cost of the trip, and when final payment was due.

Top Deck followed up the initial email with phone calls and additional emails. If no response was provided by consumers an email was sent confirming the booking Top Deck had made on the customers’ behalf.

The investigation found that Top Deck may have made false or misleading representations that its terms and conditions allowed it to book consumers into future travel arrangements without their authority. The investigation also found that Top Deck may have made false or misleading representations to consumers that they had agreed to future travel bookings, when no such agreement had been obtained.

Top Deck acknowledged the OFT’s concerns and cooperated with the investigation. It has contacted each affected customer to ensure they are aware of their rights and has entered into a court-enforceable undertaking with the OFT.

Top Deck has undertaken to:

  • review its future promotional activities, ensuring they are consistent with all contractual terms and conditions and compliant with the ACL
  • provide legally reviewed staff training abouts its ACL obligations
  • report on its promotional activities to the OFT each year, for two years, confirming that each promotion was reviewed and found to be compliant with both the ACL and with the terms and conditions entered into with customers.

These join Top Deck’s agreement with the OFT in 2020 to provide refunds to consumers and to amend its terms and conditions in line with the ACL regulators’ Best Practice Guidance for the travel industry.

The OFT Commissioner Victoria Thomson said it is essential that businesses understand obligations and responsibilities when providing goods and services to consumers under the ACL.

“ACL regulators are mindful of the significant impact the pandemic has had on businesses operating in the travel industry – many have worked very hard to progress large numbers of cancelations and refunds for their customers and have struggled to manage the associated financial implications,” Ms Thomson said.

“However, businesses must always be aware of their legal requirements when dealing with consumers.

“I would encourage all travel industry operators to visit the Fair Trading website for information on the ACL and to obtain a copy of the Best Practice Guide for the Travel Industry as it focuses on circumstances where services have been cancelled as a result of the pandemic.”

An enforceable undertaking is a legally binding written agreement between the OFT and a trader. It is an alternative to proceeding to court and can be a useful enforcement tool as it enables consumers to receive a remedy quickly, rather than having to wait lengthy periods for a court prosecution to determine a matter. If an enforceable undertaking is not complied with it can result in charges for both the original breaches of the law as well as enforcing the undertaking.

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