(2) For the purpose of determining whether a person has contravened subsection (1):

(a) the court must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and

(b) the court may have regard to conduct engaged in, or circumstances existing, before the commencement of this section.

(3) It is the intention of the Parliament that:

(a) this section is not limited by the unwritten law relating to unconscionable conduct; and

(b) this section is capable of applying to a system of conduct or pattern of behaviour, whether or not a particular individual is identified as having been disadvantaged by the conduct or behaviour; and

(c) in considering whether conduct to which a contract relates is unconscionable, a court's consideration of the contract may include consideration of:

(i) the terms of the contract; and

(ii) the manner in which and the extent to which the contract is carried out;

and is not limited to consideration of the circumstances relating to formation of the contract.

1. The concept of unconscionable conduct under the ACL has been described as conduct contrary to "a normative standard of conscience which is permeated with accepted and acceptable community standards": Stubbings v Jams 2 Pty Ltd [2022] HCA 6; (2022) 276 CLR 1 at [57] (Gordon J); Productivity Partners v ACCC [2024] HCA 27; (2024) 419 ALR 30 at [104] (Gordon J).
2. The evaluative character of the inquiry means that statutory unconscionability is best understood as "a fact-specific and context-driven application of relevant values by reference to the concept of a conscience": Paciocco v Australia and New Zealand Banking Group Ltd [2015] FCAFC 50; (2015) 236 FCR 199 [296]-[299] (Allsop CJ); Productivity Partners at [284], [295], [301], [303], [323] (Steward and Gleeson JJ).
3. Section 22 of the ACL provides a non-exhaustive list of matters to which the Court may have regard for the purpose of determining whether a supplier has contravened s 21 of the ACL. These factors do not represent criteria, nor should they be mechanistically considered. The range of conduct capable of amounting to statutory unconscionability is intentionally broad. Courts have recognised that it may encompass "bullying and thuggish behaviour, undue pressure and unfair tactics, taking advantage of vulnerability or lack of understanding": Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389; (2011) 15 BPR 29 at [291].
4. Further, under the statutory regime, proof of disadvantage is not necessary. Systemic or patterned misconduct may itself be sufficient to demonstrate statutory unconscionability. Unconscionability may be found even without an identified "victim", where the conduct in question forms part of a broader corporate system or practice. Nevertheless, the presence of a victim may be taken into consideration by the Court: ASIC v Kobelt [2019] HCA 18; (2019) 267 CLR 1 at [83]- [89] (Gageler J), [232] (Nettle and Gordon JJ), and [295] (Edelman J); Productivity Partners at [106], [230], [319]-[320].
5. Optus' practices contravened the Telecommunications Consumer Protections Code, approved under the Telecommunications Act 1997 (Cth). Although not an "applicable industry code" under the ACL, the Full Court has observed that non-compliance with public regulations is central when evaluating unconscionable sales conduct: ACCC v Lux Distributors Pty Ltd [2013] FCAFC 90 at [71] (Allsop CJ, Jacobson and Gordon JJ).

1. Section 18 of the ACL provides:

(1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

(2) Nothing in Part 3-1 (which is about unfair practices) limits by implication subsection (1).

Principles - False or Misleading Representations about Goods or Services

1. Section 29(1)(i) of the ACL provides:

False or misleading representations about goods or services

(1) A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services:

...

(i) make a false or misleading representation with respect to the price of goods or services; or

1. In ACCC v Australian Private Networks Pty Ltd [2019] FCA 384, Middleton J observed:

[13] The principles applicable to determining whether conduct contravenes s 18 of the ACL are well-known, and I accept the parties' submissions that there are broad similarities between the type of inquiry required by s 18 and that required by ss 29 and 34.

[14] Conduct is misleading or deceptive if it has a tendency to lead into error. It may involve the doing of, or refusal to do, any act. Whether conduct in relation to a particular class of consumers is misleading or deceptive is a question of fact to be resolved by a consideration of the whole of the impugned conduct in the circumstances in which it occurred.

[15] The purpose underlying provisions such as ss 18, 29 and 34 of the ACL is remedial. Accordingly, these sections should be interpreted broadly "so as to give the fullest relief which the fair meaning of its language will allow": see [2019] FCA 384; (2019) 136 ACSR 80 at 83 Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470 at 503; 114 ALR 355 at 387; 27 IPR 133 at 167 (Lockhart and Gummow JJ) and Australian Competition and Consumer Commission v AGL South Australia Pty Ltd [2014] FCA 1369 at [60] (White J).

1. With respect, I adopt his Honour's observations.

1. The SAFA provides a detailed and comprehensive account of Optus' unconscionable conduct and conduct which was misleading and deceptive. It provides for sobering reading and sets out conduct that by a normative standard of conscience is clearly unconscionable and can only be described as appalling. It is by any measure, extremely serious.
2. Some of the conduct in question occurred when senior management within Optus, defined in the SAFA as including the Chief Executive Officer, Managing Director of Customer Success, Vice President of Branded Retail, Vice President of Operations and Enablement, Vice President of Risk Management, and Vice President of Regulatory and Public Affairs, knew or ought to have known of system failures within Optus.
3. In general terms, the conduct and circumstances giving rise to the contraventions admitted by Optus may be categorised as follows:

(a) Three categories of unconscionable conduct (s 21 of the ACL):

(i) Mount Isa Conduct: The first category relates to inappropriate debt collection practices originating from the Mount Isa store. By December 2019, Optus senior management, either knew or ought to have known, that certain contracts had been created by sales staff without the knowledge or consent of the affected consumers. These practices adversely impacted 39 consumers, the majority of whom were First Nations Australians residing in remote areas. To Optus senior management's knowledge, the contracts appeared to have been entered into fraudulently.

(ii) 24 Consumers Conduct: The second category involves inappropriate sales conduct affecting 24 identified consumers across 16 Optus stores between January 2019 and September 2023. Each consumer was vulnerable or experiencing disadvantage at the time of the transaction. The conduct varied in form but consistently reflected predatory sales practices that exploited consumer vulnerability.

(iii) Darwin Conduct: The third category concerns inappropriate sales conduct at two Darwin Optus stores over a two-year period ending in July 2023. Unlike the previous categories, the scope of the inappropriate conduct was broader with subsequent investigations identifying at least 363, and as many as 564 consumer accounts, as having been impacted or potentially impacted. This includes five of the consumers affected by the second category of conduct (Consumers 10, 13, 18, 19 and 21 in the SAFA). Some of the conduct engaged in by Optus sales staff exploited vulnerabilities in Optus' system. Those vulnerabilities were known to Optus senior management.

(b) One category of misleading or deceptive conduct (ss 18 and 29(1)(i) of the ACL): This category relates to four of the 24 consumers the subject of the second category of conduct (Consumers 6, 18, 19 and 20 in the SAFA). Optus admitted that sales staff made false or misleading representations about product pricing, including claims that it would be cheaper to buy high-end phones, that certain goods were "free" or provided as a "bonus", or that such items were included in the overall contract cost.

1. The Mount Isa conduct first arose in January 2019 and concerned inappropriate debt collection practices distinct from other categories of Optus' admitted unconscionable conduct.
2. These issues arose as a result of failures in Optus' credit check systems, which permitted staff at the Mount Isa store to manipulate or circumvent established credit checking processes. Examples of credit check failures included making changes to consumer details which were not authorised by the consumers, with the aim of obtaining an approval for a higher amount of credit. Senior management within Optus were on notice of systemic risks that allowed contracts to be created in consumers' names without their knowledge or consent.
3. In August 2019, Optus commenced an internal investigation following a high number of bad debts linked to the Mount Isa store. A preliminary assessment report issued in November 2019 (Mount Isa PAR) identified that contracts giving rise to those debts appeared to result from manipulation of Optus' credit check systems. At that time, it was estimated that at least 46 consumers had been affected. A draft final investigation report in January 2020 (Mount Isa FIR) confirmed these finding and was presented to Optus' senior management, including the CEO and Chief Financial Officer.
4. Despite these reports, Optus proceeded with debt recovery action against 42 of the identified consumers. That debt recovery action occurred through referrals or sales of alleged debts to third-party collectors and factoring agencies.
5. As a consequence, at least 40 affected consumers experienced adverse impacts, including excessive and repeated phone calls, threats of default listings, and in some cases, actual listings with credit reporting bodies. Such listings had long-term consequences, remaining on the credit files of some consumers for up to five years and affected individuals' ability to obtain future credit. In some instances, these remained in place, despite Optus' knowledge that the contracts appeared to have been entered into fraudulently.
6. An example of the impugned conduct under this category which will suffice to give an understanding of the gravity of the conduct involved is that a Mount Isa store manager falsified identification documents and used the personal information of First Nations consumers to create telecommunications contracts which had not been authorised by the consumers.
7. The Mount Isa PAR found initially that at least 82 contracts appeared to have been fraudulently completed in relation to 46 consumers, many of whom were vulnerable individuals living in remote parts of Australia. Some consumers had multiple contracts in their names, which appeared to have been created fraudulently, with the total assessed value of the affected accounts amounting to $155,732.
8. A subsequent investigation found that while three of the contracts reflected genuine purchases, nonetheless most of the referred debts arose from the Mount Isa Conduct. Optus ultimately admitted that referring these debts for collection after the Mount Isa reports was unconscionable such that 79 contracts in relation to 46 consumers appeared to have been entered into fraudulently.
9. Despite these findings, Optus continued to pursue debt recovery. Debts linked to the apparent fraudulently created contracts were sold or referred to third-party debt collection agencies, which in turn engaged in aggressive collection practices. Consumers were subjected to harassment, including excessive phone calls - in the case of one consumer, 831 calls were made between 28 October 2021 and 12 July 2024 - as well as threats of legal proceedings and adverse credit listings.
10. One consumer repaid the asserted debt in full but continued to suffer harm when a default listing under her name prevented her from securing finance to purchase a car in 2024.
11. Notwithstanding senior management's knowledge since December 2019, in what can only be described as a complete abrogation of responsible management by senior management, Optus did not suspend or remediate its debt collection activity until July 2024, notwithstanding its knowledge and Optus' internal policies requiring debt collection to be placed on hold when complaints were active.
12. Optus' conduct at the Mount Isa store involved numerous contraventions of s 21(1) of the ACL and occurred as part of a pattern of behaviour of unconscionable conduct.

1. Optus' admissions reveal instances of unconscionable conduct directed at 24 consumers. Each case reflects unique circumstances of disadvantage, yet collectively demonstrates patterns of unfair sale practice, inappropriate contract management, and exploitative debt collection processes.
2. The misconduct identified across the 24 consumers falls into several categories:

(1) coverage check failures - vulnerable consumers were sold Optus products and services notwithstanding there was no Optus coverage in the areas where the consumers lived;

(2) credit check failures - Optus sales staff manipulated Optus credit check systems to allow sales to be effected notwithstanding the consumers could not afford those products and services;

(3) pressure sales tactics - Optus sales staff pressured vulnerable consumers into purchasing unnecessary or unwanted goods or services;

(4) contractual misrepresentation - vulnerable consumers were not provided with clear explanations of contractual terms. Any explanations which were given were given in ways vulnerable consumers could not reasonably understand;

(5) false records - Optus sales staff entered incorrect information into credit checks and contracts to secure approval; and

(6) complaint and debt collections mismanagement - consumers faced inappropriate responses and aggressive debt recovery practices.

1. Examples of the conduct under this category will suffice to give an understanding of the gravity of the conduct involved:

(a) Consumer 5: A woman living with an intellectual disability and reliant on a disability pension was exploited through the sale of multiple unaffordable contracts. Despite her limited literacy, lack of financial understanding, and oversight by the Public Trustee of South Australia, Optus sales staff sold her seven contracts between May and December 2020, including phones, plans, broadband, accessories, and insurance amounting to liabilities exceeding $20,000. Staff manipulated internal credit checks by omitting key details to bypass approval safeguards, enabling contracts that should have been declined. As a result, Consumer 5's bills escalated to approximately $430 per month, leading to arrears of $6,809.61 by June 2021. Her parents and the Public Trustee repeatedly intervened, providing medical certificates and requesting cancellations, however Optus dismissed these efforts, offering only minimal discounts and even misrepresenting interactions. Although Optus formally agreed to waive her debt in mid-2021, it continued sending bills for nearly two years, only processing a full write-off in June 2023 and reconciling her account in November 2024.

(b) Consumer 7: A 59-year-old man, homeless and reliant on disability payments, who was deaf, mute and had part of one hand and fingers amputated, visited the Optus Westfield Marion Store on three occasions. He was signed up to four contracts totalling $7,542.60, with repayments of $252.85 per month. Consumer 7 did not understand the contracts due to communication barriers. Optus initially refused to engage with his support worker, asking to speak to the customer, notwithstanding the support worker explained the customer was deaf and mute, and ultimately requiring intervention by the TIO. Nearly two years later, Optus agreed to cancel the contracts and waive an outstanding balance of $911.91.

(c) Consumer 10: A woman with cerebral palsy, ADHD, and impaired decision-making capacity who survived solely on disability pension was exploited through the sale of 24 contracts between January 2022 and April 2023, including multiple phones, watches, accessories, data plans and "Upgrade and Protect" services, many of which were duplicated and unnecessary. Several contracts were falsely set up as business accounts despite the consumer never having operated a business, and at least 10 contracts were approved through manipulated credit checks. The contracts imposed heavy financial obligations with individual total costs often exceeding $3,000-$5,000. On 15 May 2023 Optus debited the consumer's bank account by $2,922.12, thereby overdrawing her pension account. Despite repeated warnings from her carers and father that she could not understand or afford these services, Optus failed to act, instead allowing debts to be referred to debt collectors. Only in late 2024, after investigation by the TIO and the Darwin Suntel Investigation conducted by Optus, did Optus finally waive all outstanding debts.

(d) Consumer 15: A First Nations Australian man, unemployed, on welfare support and with limited English literacy was signed up to seven contracts at the Optus Cairns store, including phones, data plans, watches and accessories, totalling $12,754.80 if continued for their full term. Optus staff misrepresented his employment as "Professional" in credit checks and gave him a watch he thought was free and did not want. His accounts later defaulted and were sold to debt collectors, causing multiple financial reporting issues. By February 2024, Optus staff acknowledged internally that credit check failures had occurred, but remediation was incomplete as of September 2024.

1. Optus admits that in most of the 24 consumers' cases, its management knew or ought to have known of the risks of misconduct, even if they were unaware of the specific details at the time. Optus acknowledge that the conduct towards the 24 consumers was unconscionable and in breach of s 21 of the ACL.

1. The Darwin Conduct concerned Optus' two stores - Optus Palmerston Gateway and Optus Casuarina.
2. Optus' admissions reveal systemic patterns of inappropriate conduct by Optus sales staff, described collectively as the Darwin Conduct. The inappropriate conduct falls into several interrelated categories with which I deal, in part, below:

(1) undue pressure and influence - vulnerable consumers were subject to aggressive sales tactics, including pressure to purchase large volumes of goods and services they neither wanted nor needed, and often could not afford;

(2) failure to explain contracts - terms and conditions were frequently not explained in a way that vulnerable consumers could understand. As a result, many did not grasp the financial liabilities or long-term payment obligations attached to the agreements;

(3) coverage check failures - vulnerable consumers were sold Optus services despite staff knowing coverage was unavailable at their residential address. This practice left consumers with contracts for services they could not use, exemplified by 70 consumer accounts in which coverage was non-existent, 64 of which showed zero usage;

(4) credit check failures - numerous instances involved manipulation or neglect of credit checks, including the input of false information, repeated submission of credit applications to raise approval limits, and unauthorised changes to consumer details. A total of 216 accounts were affected by credit check failures, with 46 consumers pursued for debt recovery despite their vulnerability;

(5) mis-selling of accessories and misrepresentation - at least 88 consumer accounts were impacted by the sale of accessories and inflated prices, sometimes $15-$850 above recommended retail, or by excessive sales of items consumers could not afford. In other cases, consumers were misled to believe accessories were "free" or bundled without additional cost;

(6) identity verification failures - at least 34 accounts involved lapses in verifying customer identities according to Optus' policies, raising compliance concerns; and

(7) debt collection conduct - Optus continued to pursue debt recovery aggressively, even after complaints highlighted the misconduct. This included ignoring TIO complaints and internal warnings.

1. In the two-year period ending 23 July 2023, Optus licensee staff at the Darwin stores engaged in credit check failures, which enabled them to sell more products and services. The credit check failures exploited a feature of Optus' Customer Relationship Management System and database which enables large business customers to place multiple orders and allows consumers to place new orders whilst a previous order was being completed.
2. A Remediation Review conducted by Optus from August 2023 revealed that 216 consumer accounts were impacted by credit check failures, of which 46 had had services cancelled and were subject to debt collection activities. 14 of those accounts were considered "bad intent to pay", had had services cancelled and were subject to debt collection activities. The remaining 32 consumers, although making some payments, nonetheless had their services cancelled and were subject to debt collection activities.
3. Of those 46 consumers, many were First Nations Australians living in remote communities and were often vulnerable by reason of not having English as their first language, having comprehension difficulties, living with a mental or physical disability, being financially dependent and indigent, and/or being elderly.
4. The credit check failure conduct occurred in Darwin in circumstances where from at least December 2019 Optus senior management knew that Optus sales staff had engaged in such conduct and it was not until at least June 2024 that Optus' IT systems controlled and prevented credit check failures.
5. In a Final Investigation Report into the conduct of sales staff in the Darwin Optus stores conducted by Optus and dated 2 February 2024 (Darwin FIR), Optus identified the 46 consumer accounts which were the subject of credit check failures.

1. The accessories conduct falls into two types. The first is selling accessories above the recommended retail price. The Darwin FIR revealed that 88 consumers were impacted by this conduct with additional amounts charged ranging between $15 and $850. A minimum of 20 consumers were sold accessories at a price which was at least $100 above the recommended retail price.
2. The second category is the excessive selling of accessories. Three consumers were affected by this conduct according to the Darwin FIR. The consumers affected by this conduct included First Nations Australians living in remote communities and other vulnerable consumers.
3. The Darwin accessories conduct occurred notwithstanding that from at least January 2021, Optus senior management knew or ought to have known that there were many complaints claiming that Optus sales staff were overselling accessories and making misrepresentations as to the existence of "free accessories". Despite this Optus:

(a) failed to address the overselling of accessories for a period in excess of three years;

(b) did not have procedures or controls that prevented Optus licensee stores from selling accessories above the recommended retail price or the maximum price specified by Optus for those accessories;

(c) had no controls in place until at least 1 August 2024; and

(d) had no procedures or controls in place to prevent Optus licensee stores from setting their own recommended retail price or changing Optus' recommended retail price for accessories, or selling accessories above Optus' recommended retail price.

1. Further, Optus maintained its commission structure from at least 17 June 2022, notwithstanding it knew that the commission structure provided an incentive to oversell accessories.

1. The Remediation Review identified that 70 consumer accounts had been sold Optus services despite there being no Optus coverage at their residential address. These accounts included the 57 Consumers identified by the Associate Director of the Fraud Risk Management team on 11 August 2023.
2. The coverage check conduct occurred notwithstanding that from at least October 2021 Optus senior management knew or ought to have known that some Optus sales staff were selling services to consumers living in remote communities without Optus coverage, such that they would not be able to use the Optus services where they resided. Nonetheless, it was not until November 2023 that Optus updated its customer connection tools to include coverage checks in the check-list.

1. Between February 2023 and July 2023, Optus' FRM team received reports from other teams within Optus in relation to the Optus Palmerston Gateway store and Optus Casuarina store. The reports concerned credit check failures and the exploitation of vulnerable consumers.
2. Following an investigation by Optus' FRM team on 24 July 2023, Optus' FRM team prepared the Darwin Preliminary Assessment Report, which revealed evidence of credit check failures, unconscionable sales practices and the exploitation of vulnerable consumers.
3. Specifically, the Darwin PAR revealed that:

(a) 17 Optus licensee staff members had engaged in unconscionable conduct by selling numerous devices and services to customers without Optus coverage;

(b) since January 2022, at both the Optus Palmerston Gateway store and the Optus Casuarina store, Optus licensee staff, including managers, had provided devices and services to 24 consumers whose home addresses were not covered by Optus, and 45 of the service numbers provided had no usage. All of the accounts were in arrears and no payments had been made by the consumers;

(c) there may have been a systemic issue of exploiting vulnerable consumers given that almost all of the vulnerable consumers identified appeared to be First Nations Australians; and

(d) Optus licensee staff had entered incorrect information into credit checks with the aim of circumventing credit restrictions.

1. On 9 August 2023, the TIO had sent a letter to Optus advising it had identified possible systemic issues relating to potential sales misconduct in the Darwin stores involving First Nations Australians and/or consumers with vulnerabilities.
2. By 11 August 2023, Optus had identified that for the period 19 July 2021 to 31 May 2023, consumers with a total of 57 unique customer identification numbers (57 Consumers) had been sold services, notwithstanding they had no Optus coverage at their home address. For those 57 Consumers, 146 services were provided, of which 102 had no usage and 44 had minimal usage. A total of 115 handsets were provided, of which 76 had no usage and 39 had minimal usage.
3. The Remediation Review carried out by Optus from August 2023 identified that during the period June 2021 to June 2023, 363 consumer accounts had been the subject of credit check failures and a failure to verify identities such that Optus could not rule out the possibility that a consumer was unaware of the creation of a relevant account, and/or sales of accessories or devices above the recommended retail price.
4. A draft version of the Darwin FIR in respect of Optus' investigation into the Optus Darwin stores was sent to the Associate Director of the FRM on 21 September 2023. The draft Darwin FIR stated that Optus licensee staff members, including managers, had sold services to First Nations Australians who did not have Optus coverage, engaged in credit manipulation to provide consumers with more devices and services than they could afford, and had engaged in overselling of accessories.
5. On 22 September 2023, Optus responded to the TIO's letter sent on 9 August 2023 in which, amongst other things, it informed the TIO that it had not found evidence suggesting that the conduct was targeted or directed towards any specific cohort of consumers, including those from First Nations communities or vulnerable consumers. That statement was false.
6. In its response to the TIO, Optus also failed to disclose that credit check failures and what appeared to be fraudulent conduct had been referred to Optus' FRM team on 21 February 2023, and that the Darwin PAR which had been produced on 24 July 2023 had found that there appeared to be a systemic issue of exploiting vulnerable consumers, almost all of whom were First Nations Australians.
7. It also failed to disclose that the Darwin PAR had reported that there had been the provision of services and devices to 24 consumers who did not have Optus coverage at their home address, nor the findings relating to the 57 Consumers.
8. On any view, the failure by Optus to inform the TIO of those matters was a disgrace.
9. That is even the more so given the issues identified in the Darwin PAR had been brought to the attention of the then CEO and CFO in August 2023 and again in November 2023. The Optus Fraud Committee had been informed of these issues on 7 August 2023 and also on 30 October 2023.

1. On 2 February 2024, the final investigation report into the Darwin stores was concluded. The Darwin FIR revealed that:

(a) the failure to conduct coverage checks was a regular practice;

(b) Optus products and services had been sold to 57 consumer accounts notwithstanding that the consumers had no Optus coverage at their home address;

(c) many of the 57 Consumers were First Nations Australians residing in remote communities in the Northern Territory;

(d) a further 30 consumers who did not have Optus coverage were the subject of unsuccessful attempts to provide services and devices, due to the consumers failing credit checks;

(e) 21 Optus licensee staff, including managers, were involved in the coverage check failures;

(f) it was common for credit check failures to occur, with Optus licensee store managers, assistant store managers and staff using different methods to circumvent credit restrictions;

(g) between 18 February 2022 and 14 July 2023, 46 consumer credit accounts had been impacted by credit check failures;

(h) 24 Optus licensee staff, including store managers, had engaged in the credit check failures;

(i) a number of consumers were sold more than they could afford;

(j) Optus licensee staff, including managers, had been involved in overselling accessories, including to vulnerable consumers who were not able to pay for those accessories, with there being numerous contracts involving multiples of the same accessory; and

(k) no corrective controls had been implemented to ensure that the credit check system was not being manipulated or that coverage checks were being conduct as part of processing orders.

1. On 7 February 2024, Optus' Director of Complex Care and Vulnerable Customers acknowledged that the conduct identified in the Darwin FIR has impacted or potentially impacted 564 consumers in total. The value of this impact was found to have been $649,858.84.
2. By October 2024, Optus had identified 70 consumer accounts which had been sold services despite an absence of Optus coverage at their home addresses over the period 13 June 2021 to 12 June 2023. Of those consumer accounts, 6 had not used any of the Optus services sold to them.

1. Darwin's inappropriate selling conduct was undertaken by almost all Optus licensee staff employed in the Darwin stores. That conduct extended to store managers and assistant store managers who engaged in the accessories conduct, the credit check conduct, and the coverage check conduct.
2. That position is all the more appalling because it included store managers and assistant store managers teaching and/or directing junior Optus licensee staff to engage in the inappropriate conduct.
3. The ACCC described the inappropriate selling conduct as pervasive at the Darwin stores. That is an accurate description.
4. The Darwin Conduct occurred in a context where Optus senior management knew, or ought to have known, about both the risks and the systemic failures that enabled the inappropriate conduct. Internal investigations, whistle blower reports, and the TIO complaints all point to these issues. Despite this, the inappropriate conduct persisted from at least early 2021 to July 2023.
5. The pattern of unconscionable behaviour caused significant consumer harm.
6. Amongst these, a subset of consumers forming part of the 24 consumers referred to above suffered unconscionable conduct, which can only be described as disgraceful; involving high-value contracts, false credit checks and aggressive debt recovery practices. Many of those affected were First Nations Australians living in remote or vulnerable circumstances.
7. Optus' actions were found to be contrary to the TCP Code, particularly cll 5.4(1)(a)-(b), 6.1 and 6.1.2, which bind Optus as an industry participant. Optus admits the Darwin Conduct represented multiple breaches of s 21 of the ACL.
8. Subsequently, Optus established a working group to manage its response to the conduct identified at the Darwin stores.
9. It took a number of actions in relation to the Darwin stores, including by requiring Optus sales staff in those stores to complete a declaration in which they confirmed that they would only offer products and services in line with credit limits and that they must perform mobile coverage checks before offering solutions.

1. Optus has admitted to making false or misleading representations regarding the price of goods and services to several consumers, specifically Consumers 6, 18, 19 and 20, in contravention of ss 18 and 29(1)(i) of the ACL. Two examples will suffice:

(a) Consumer 6 (June 2020): Consumer 6 is a single mother of four. Two of the children have Autism. Consumer 6 has her own mental and physical health issues requiring intervention with specialists and visits to hospital. A mobile phone is essential for communication with doctors and specialists. She was advised by Optus staff that purchasing two higher-end (in terms of cost) mobile phones would be cheaper than acquiring a single basic phone on a low-cost plan. She was further enticed with promises of "free" accessories and "big savings" if she signed up for a new phone plan and Optus Sport. She was told her costs would be around $100 per month, however the actual contract carried a monthly fee of $420.58 and a total cost of $15,261.90. Unable to meet repayments, Consumer 6's account was cancelled, her services were suspended and she was pursued by debt collectors. Her situation was only resolved with the assistance of a financial counsellor.

(b) Consumer 18 (January 2023): Consumer 18 lives with an intellectual disability caused by severe brain damage and has daily assistance from support workers through the National Disability Insurance Scheme. In January 2023, Consumer 18 was led to believe that his total monthly cost would be $30, inclusive of a free speaker. Instead, he was signed up to three separate contracts involving accessories bundles, leading to combined monthly costs exceeding $200. Consumer 18 fell into arrears and despite intervention attempts by his carer, support worker and a community legal service, the issues with Optus persisted. A complaint to the TIO was initially unsuccessful. It was only 12 days after the TIO flagged systemic concerns that Optus waived Consumer 18's account balance and charges.

1. The power of the Court to impose pecuniary penalties is found in s 224(1)(a)(ii) of the ACL which enables the Court, upon being satisfied that a contravention of Part 3-1 of the ACL has occurred, to order the payment of a pecuniary penalty in an amount it determines appropriate for each act or omission.
2. The principles in relation to civil pecuniary penalties are well established.
3. The central purpose of imposing a civil penalty is to promote compliance with statutory obligations through deterrence - both specific (deterring the individual contravener) and general (deterring others who might contemplate contravention): Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 at [55] (French CJ, Kiefel, Bell, Nettle and Gordon JJ); Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 274 CLR 450 at [15], [40]-[41] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ). See also: Viagogo AG v ACCC [2022] FCAFC 87 at [129] (Yates, Abraham and Cheeseman JJ); ACCC v Employsure Pty Ltd (ACN 145 676 026) [2023] FCAFC 5; (2023) 407 ALR 302 at [49] (Rares, Stewart and Abraham JJ); ASIC v Web3 Ventures Pty Ltd (Penalty) [2024] FCA 578 at [56] (Jackman J). In the context of the ACL, see ACCC v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640 at [65] (French CJ, Crennan, Bell and Keane JJ).
4. In TPG Internet at [147], the High Court observed that Courts must ensure that the sanctions "put a price on the contravention that is sufficiently high to deter repetition by the contravener and by others who might be tempted to contravene the Act".
5. Further, the penalty must carry a sufficient "sting or burden" to create a genuine deterrent effect; absent such a sting, the sanction risks being ineffective: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 262 CLR 157 at [116] (Keane, Nettle and Gordon JJ).
6. The Full Court in ACCC v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25 observed at [151]:

All others things being equal, the greater the risk of consumers being misled and the greater the prospect of gain to the contravener, the greater the sanction required, so as to make the risk/benefit equation less palatable to a potential wrongdoer and the deterrence sufficiently effective in achieving voluntary compliance. Tipping the balance of the risk/benefit equation in this way is even more important when the benefit in contemplation is profit or other material gain. It is especially important if there are disadvantages, including increased costs or lesser sales or profits, in complying with legal obligations for those who "decide" to be law-abiding.

1. Nevertheless, proportionality remains a central constraint. As explained by the High Court in Pattinson at [41], penalties must be proportionate, striking a balance between "deterrence and oppressive severity".
2. The imposition of penalties under the ACL is guided by s 224(2), which requires the Court to have regard to "all relevant matters".
3. Section 224(2) expressly identifies the following considerations:

(2) In determining the appropriate pecuniary penalty, the court must have regard to all relevant matters including:

1. the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission; and
2. the circumstances in which the act or omission took place; and
3. whether the person has previously been found by a court in proceedings under Chapter 4 or this Part to have engaged in any similar conduct.

1. Beyond statutory guidance, Courts also apply additional considerations developed in Trade Practices Commission v CSR Ltd [1990] FCA 521; [1991] ATPR 41-076 at 52,152-52,153 articulated by French J (as his Honour then was and as a member of this Court):

(a) the size of the contravening company, reflecting both its capacity to comply and the need for deterrence;

(b) the deliberateness and duration of the contravention, indicating culpability and intent;

(c) the involvement of senior management, or whether the conduct occurred at a lower level of the organisation;

(d) the presence (or absence) of a corporate compliance culture, as evidenced by compliance programs or corrective responses to misconduct;

(e) the company's co-operation with enforcement authorities, such as the ACCC, in relation to the contravention;

(f) evidence of prior similar conduct, even if not captured within s 224(2); and

(g) the financial position of the contravening entity, as penalties must be proportionate but also effective in deterrence.

1. The factors identified by French J should not be treated as a rigid checklist and overlap with the statutory considerations. The scope of "all relevant matters" in s 224(2) is intentionally broad. Courts have consistently warned against treating these factors as exhaustive: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; (2017) 254 FCR 68 at [101] (Dowsett, Greenwood and Wigney JJ).

1. The parties jointly submit that a total pecuniary penalty of $100 million ought be imposed in respect of all contraventions.
2. The determination of the appropriate penalty is discretionary, with the Court having regard to all relevant matters. In Volkswagon Aktiengesellschaft v ACCC [2021] FCAFC 49; (2021) 284 FCR 24 at [129] (Wigney, Beach and O'Bryan JJ), the Full Court observed that when considering whether a proposed agreed penalty is appropriate, the Court's task is not simply one of determining whether what is proposed comes within the appropriate range, although that is a consideration. In particular, the Court is not obliged to accept a proposed penalty which comes within the appropriate range although consideration of public policy directed at predictability of outcome produces a compelling reason for the Court to accept the proposed penalty. Nonetheless, it is a relevant consideration carrying significant weight that the regulator and the contravener have jointly proposed a penalty.
3. In determining the appropriate penalty, the issue is whether the penalty proposed by the parties strikes the appropriate balance between achieving deterrence and avoiding oppressive severity: see Pattinson at [41] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ); Reckitt Benckiser at [152] (Jagot, Yates and Bromwich JJ); ACCC v Qantas Airways Ltd [2024] FCA 1219 at [85] (Rofe J).

1. The financial capacity and size of Optus are factors in determining an appropriate penalty.
2. As a subsidiary of a major global entity, Optus occupies a dominant position in the Australian telecommunications sector, being the second-largest provider of mobile and data services. During the relevant period, it sustained between 1.6 and 2.1 million postpaid mobile connections annually, alongside 1 million prepaid connections. Its parent company reported gross revenues in excess of $8 billion and net assets exceeding $9.8 billion.
3. The proposed penalty of $100 million is proportionate to Optus' significant market presence and financial strength. The penalty serves not only to achieve specific deterrence, but also general deterrence by signalling to other large corporations the consequences of contravening conduct. The penalty is not oppressive, as Optus has the financial capacity to meet the obligation without undue hardship.

Nature and Extent of the Contravening Conduct

1. As I have noted, the unconscionable conduct in question was extremely serious. Many of the affected consumers faced a substantial imbalance of bargaining power, which Optus sales staff exploited through predatory and repeated aggressive sales practices. The consequences were profound. Numerous individuals experienced severe financial harm, emotional distress, and social shame. Particularly damaging was the heightened risk of losing access to essential telecommunications services when faced with inflated service costs.
2. The seriousness of the misconduct is underscored by its duration, spanning more than four years, and by the fact that it persisted despite senior management's awareness of the failures in Optus' systems. Further, the conduct was geographically widespread, occurring across several states and territories, but disproportionately affecting vulnerable First Nations populations in remote communities within the Northern Territory, Queensland and South Australia.
3. Optus' conduct might rightly be described as a manifest betrayal of trust of the public to whom Optus has the privilege of providing services.
4. Nonetheless, I take into account that the conduct was ultimately identified in 16 Optus stores - representing a relatively small fraction of Optus' total retail footprint which varied over the relevant period (between August 2019 and July 2023) from between 112 and 142 Optus stores owned and operated by Optus or a related body corporate and between 165 and 224 Optus stores owned by Optus but operated by Optus licensees. It is important to recognise that the number of Optus sales staff who engaged in this disgraceful conduct is but a small proportion of the total number of Optus sales staff.
5. Nonetheless, the disproportionate impact on vulnerable groups, coupled with the systemic nature of the misconduct, underscores its seriousness. While the financial gains to Optus were relatively minor in the context of its broader business operations, the social consequences for affected consumers were significant, especially in terms of autonomy, dignity and community harm.

1. As I have noted, Optus' unconscionable conduct caused significant financial and social harm to affected consumers. Many were induced into contractual liabilities and debts which, on average, amounted to $10,630.64 per consumer for the 24 consumers identified in category two. The specific impact of the Darwin Conduct equated to an average liability of $1,152.23 per affected consumer which disproportionately affected individuals with limited financial means and undermined their ability to afford essential goods and services such as food, healthcare and utilities.
2. Quite apart from financial burdens, consumers experienced disconnections from vital telecommunications services, limiting access to healthcare, education and employment. Exploitation of vulnerabilities - including language, literacy, cultural and age-related factors - exacerbated the harm, with consumers reporting shame, embarrassment and stress due to the debts they could not manage. Notably, Consumer 19 reported fears of imprisonment resulting from a failure to meet repayment obligations.
3. The harm extended beyond individual consumers, producing broader social detriment. Many consumers were First Nations Australians from regional, remote, and very remote communities, amplifying the severity of the impact. These vulnerabilities warrant particular emphasis in penalty determinations: see ACCC v Birubi Art Pty Ltd (in liq) (ACN 118 654 366) (No 3) [2019] FCA 996; (2019) 374 ALR 776 at [23], [34]-[55], [89]-[93] (Perry J).

1. The contraventions by Optus spanned from January 2019 to July 2023, with the most pervasive of inappropriate practices, identified as the Darwin Conduct, occurring in the latter half of this period. These contraventions were marked by unconscionable sales practices, exacerbated by systemic failures in Optus' risk management, oversight and consumer protection mechanisms. Although I accept that senior management did not explicitly direct or intend the conduct, the SAFA reveals that they were repeatedly placed on notice of systemic failures yet failed to address them adequately, or at all.
2. Awareness of analogous breaches by industry competitors, such as the $50 million Telstra penalty in May 2021, further reinforced management and senior management's knowledge of the potential consequences of inaction: ACCC v Telstra Corporation Ltd (ACN 051 775 556) [2021] FCA 502; (2021) 392 ALR 614. Nevertheless, despite Optus' recognition of these risks by July 2021, the Darwin Conduct continued until July 2023, culminating in cases of unconscionable conduct extending into late 2023 and remediation into 2024.
3. Several risk categories were central to the contraventions. From December 2019, issues surrounding credit check failures became apparent from the Mount Isa store, including the use of false ABNs and misrepresentation in the sale of accessories by early 2021. By mid-2021, further problems emerged, including improper debt collection practices, insufficient training for staff handling vulnerable consumers, and repeated failures in addressing consumer complaints. These systemic issues continued despite internal investigations, whistleblower reports and regulatory complaints which should have heightened senior management's awareness of ongoing risks.
4. The failures of senior management are reflected in the slow and insufficient efforts at remediation and systemic reform. Given the knowledge and the circumstances, quite inexplicably, the Advocate Program, approved in April 2022 to address consumer vulnerability, was delayed by budget cuts and lack of substantive implementation until late 2023. Similarly, Optus' sales incentive structures, which encouraged multiple inappropriate sales practices, were only revised between March and July 2021, with consumer service-driven requirements not becoming enforceable until December 2024.
5. Taken together, the SAFA illustrate a prolonged pattern of systemic neglect, where senior management's knowledge of risks and breaches did not translate into timely or effective action. This inaction perpetuated consumer harm, particularly for vulnerable groups, and demonstrated a prioritisation of financial recovery and sales incentives over consumer remediation and ethical conduct.
6. That Optus senior management knew or ought to have known of these fundamental system failures yet did nothing to attend to these failures for two or so years simply beggars belief. It reveals a complete abrogation of managerial responsibility by senior management and a consequent abrogation of any semblance of responsible corporate behaviour.

1. Although Optus has not previously been found to have engaged in unconscionable conduct, it or other companies within the Singtel Optus Group have faced civil penalties in the past for misleading or deceptive conduct: see Singtel Optus Pty Ltd v ACCC [2012] FCAFC 20; (2012) 287 ALR 249, ACCC v Optus Internet Pty Ltd [2018] FCA 777, ACCC v Optus Mobile Pty Ltd [2019] FCA 106, ACCC v Optus Internet Pty Ltd [2019] FCA 2221, and ACCC v Optus Internet Pty Ltd [2022] FCA 1397.
2. These prior infringements are relevant in assessing the need for specific deterrence, with which I deal later in these reasons.

Co-operation, Corrective Action and Contrition

1. Optus has co-operated extensively in relation to this proceeding. It co-operated with the ACCC during the investigation process, admitted to its contravening conduct, agreed to the making of appropriate orders, including a substantial proposed pecuniary penalty, and joined in the making of submissions.
2. I take Optus' co-operation into account in considering the quantum of the pecuniary penalty.
3. On 31 October 2024, Optus' interim CEO published on its website an extensive apology to affected customers. Optus has also sent an apology by email and letter to each of the affected consumers and indicated it will take a range of steps to remediate any consumers impacted by the misconduct. It also informed the affected consumers that it was undertaking a review to ensure any impact on affected consumers has been fully addressed.
4. I take into account Optus' apologies which are welcome and appropriate although ultimately, no matter how sincere, are merely words. What is required from Optus is firm actions to address the issues and constant vigilance to ensure this type of conduct never occurs again.
5. It is in recognition of that need that Optus has implemented, and continues to implement, improvements within its business practices and management aimed at preventing recurrence of its contravening conduct in the future. The improvements include:

(a) system changes to prevent credit check failures, improve transparency, and prevent overselling;

(b) process and reporting changes to ensure consistent performance of coverage checks;

(c) introduction of a new Sales Compliance Standard Handbook;

(d) updated debt collection policies which exclude a wider range of consumers from debt sales and introduce debt collection pauses in circumstances where a consumer has been identified as vulnerable or where investigations are being conducted;

(e) updated training for sales staff, quality assurance programs and sales processes with a focus on vulnerable consumers;

(f) introduction of a policy specifically for vulnerable consumers, specialist teams to address case management for such consumers, and a mechanism for independent review and oversight in relation to escalated complaints;

(g) addition of Key Risk Indicator monitoring to its regular reporting structure;

(h) addition of a new process for particular teams to obtain a review of sales in which non-compliance is suspected;

(i) changes to its commission structure with a focus on compliance and quality; and

(j) identification of 34 Optus licensee stores, in particular those in which the contravening conduct has taken place, in relation to which Optus has assumed management.

1. Those actions are welcome, if not well overdue.
2. Optus has also provided the ACCC with an enforceable undertaking pursuant to s 87B of the Competition and Consumer Act 2010 (Cth), which has a term of five years. The undertaking includes requirements for Optus to implement improvements to address its contravening conduct.
3. As part of the undertaking Optus has proffered under s 87B of the CCA, it undertakes to donate the sum of $1 million to an organisation facilitating digital literacy of First Nations Australians. I note the commencement date is defined in clause 5.1 of the undertaking as coming into effect upon three events occurring, the final being the Court making final orders in respect of these proceedings.
4. Optus is also engaging in an extensive remediation program directed to the affected customers.
5. I have taken into account the co-operation, corrective actions and contrition by Optus in assessing the quantum of the pecuniary penalty to be imposed, whilst keeping in mind that the primary purpose of a civil penalty is deterrence: see NW Frozen Foods Pty Ltd v ACCC [1996] FCA 1134; (1996) 71 FCR 285 at 293-5.

1. Optus was penalised for breaches of s 12DB(1)(b) of the Australian Securities and Investments Commission Act 2001 (Cth) - for false or misleading representations in connection with the supply or possible supply of financial services that a particular person has agreed to acquire.
2. That matter involved, among other things, a significant number of Optus customers unintentionally purchasing and being billed for services they had not agreed to acquire. The penalty imposed was $10 million.
3. As such, the penalty imposed in this instance is an order of magnitude greater in terms of both scope and conduct.
4. The penalty imposed must be such as to deter Optus from engaging in the conduct the subject of this matter or any like conduct.
5. I am satisfied that the proposed penalty achieves that purpose.

1. The penalty imposed must stand as a general deterrent against parties engaging in unconscionable conduct. Optus was aware of the $50 million penalty levied against Telstra in May 2021 in ACCC v Telstra but that did not seem to provide a deterrent against Optus engaging in unconscionable conduct.
2. That fine was imposed prior to the amendment to the penalty provisions in s 224 of the ACL.
3. I have described the conduct in these reasons with a very detailed SAFA annexed to and forming part of these reasons. I am satisfied that the $100 million penalty proposed will stand as a general deterrent.

1. Given that Optus' conduct comprises multiple contraventions of the ACL, determining the appropriate penalty requires consideration of s 224(4) of the ACL, the course of conduct principle, and the totality principle. The parties have taken these principles into account in proposing the agreed penalty of $100 million. I deal with each of these in turn below.

S 224(4) - Same Conduct

1. Section 224(4) of the ACL provides:

(4) If conduct constitutes a contravention of 2 or more provisions referred to in subsection (1)(a):

(a) a proceeding may be instituted under this Schedule against a person in relation to the contravention of any one or more of the provisions; but

(b) a person is not liable to more than one pecuniary penalty under this section in respect of the same conduct.

1. Where Optus' conduct constitutes a contravention of more than one provision of the ACL, additional penalties should not be imposed. Specifically, in relation to misrepresentations made to Consumers 6, 18, 19 and 20, which constituted a contravention of both s 21 and s 29(1)(i) of the ACL, Optus should only be penalised under one of these sections. Similarly, additional penalties should not be imposed in relation to the five consumers who were affected by both the 24 Consumers Conduct and the Darwin Conduct.

1. Where separate acts result in separate contraventions that are "inextricably linked" to each other, those acts may be regarded as a single "course of conduct", with one penalty being imposed for the course of conduct as a whole: ACCC v Yazaki Corporation [2018] FCAFC 73; (2018) 262 FCR 243 at [234] (Allsop CJ, Middleton and Robertson JJ).
2. Whether a set of contraventions constitutes a single course of conduct is to be determined with reference to the particular facts and circumstances of each case: Employsure at [51] (Rares, Stewart and Abraham JJ).
3. It may be appropriate for the Court to regard multiple contraventions as a single course of conduct where doing so is agreed or accepted as being appropriate by the parties, where the exact number of contraventions cannot be determined, or where the number of contraventions is so large that it would not be practicable to impose separate penalties: ABCC v CFMEU at [149].
4. The parties submit that the contravening conduct be grouped into the three courses of conduct I have identified earlier in these reasons: the Mount Isa Conduct, the 24 Consumers Conduct, and the Darwin Conduct.
5. I accept the parties' submission. The Mount Isa Conduct and the Darwin Conduct each concerned contraventions comprising of a recurring pattern of behaviour which affected a cohort of consumers and occurred at one or two Optus stores within a defined period of time. It is therefore appropriate for each of those to be treated as one course of conduct. The contraventions relating to the 24 Consumers Conduct are wider ranging, occurred over a longer period of time, and involved a number of stores. Nonetheless, it is appropriate to treat that conduct as comprising a single course of conduct given that there was a significant degree of commonality in the nature of the contraventions and the features of Optus systems which allowed for those contraventions to occur.
6. The four cases of misleading or deceptive conduct fall within the 24 Consumers Conduct.

1. The totality principle requires the Court to conduct a final check on the penalty to be imposed to ensure that the penalty as a whole is just and appropriate: Employsure at [52]; ACCC v Trivago NV (No 2) [2022] FCA 417; (2022) 159 ACSR 353 at [70] (Moshinsky J).

1. The relevant maximum pecuniary penalty payable by a body corporate in respect of a contravention of ss 21 or 29 of the ACL is as follows (see s 224(3A)):

(a) from the time of the first admitted contravention until 9 November 2022, the greater of:

(i) $10 million;

(ii) three times the value of any benefit that is "reasonably attributable" to the contravening conduct, gained by the body corporate or a related body corporate, if that benefit can be determined; or

(iii) if the benefit cannot be determined, 10% of the contravener's annual turnover during the 12-month period ending at the end of the month in which the contravening conduct first occurred; and

(b) from 10 November 2022, the greater of:

(i) $50 million;

(ii) three times the value of any benefit that is "reasonably attributable" to the contravening conduct, gained by the body corporate or a related body corporate, if that benefit can be determined; or

(iii) if the benefit cannot be determined, 30% of the contravener's adjusted turnover during the breach turnover period for the contravening conduct.

1. As I have noted above, Telstra was subjected to a $50 million fine for unconscionable conduct in May 2021, which was prior to amendments being made to the quantum of penalty that may be imposed.
2. Changes to the penalty regime came into effect on 10 November 2022 and reflect the seriousness with which Parliament views this type of conduct.
3. It is likely that the applicable maximum penalty for each of Optus' contraventions that occurred prior to 9 November 2022 and on or after 10 November 2022 is at least $10 million and $50 million, respectively.
4. Each contravening act or omission constitutes a separate contravention. As such, the maximum pecuniary penalty under the ACL is likely to be:

(a) at least $390 million for the Mount Isa Conduct, with all 39 affected consumers having entered into contracts prior to 9 November 2022;

(b) at least $560 million for the 24 Consumers Conduct, with 16 of those consumers having entered into contracts prior to 9 November 2022, and nine of them having done so after that date; and

(c) a substantially greater amount than the above two figures but difficult to calculate in relation to the Darwin Conduct due to uncertainties regarding the exact number of consumers affected.

1. In the parties' joint submissions, they submit that the difficulty in calculating a theoretical maximum in circumstances where the precise number of contraventions are unknown, along with the fact that these theoretical maximums are likely to be far greater than what is necessary to achieve the primary objective of deterrence, make the calculation of an aggregate maximum penalty by reference to the total theoretical maximum a meaningless exercise: see ACCC v Coles Supermarkets Australia Pty Ltd [2015] FCA 330; (2015) 327 ALR 540 at [18], [82] (Allsop CJ); ABCC v CFMEU at [143]; Trivago at [66].
2. I accept that submission.

1. It is for these reasons that I am satisfied that the proposed penalty of $100 million is both just and appropriate, and will achieve the requisite specific and general deterrence.

1. The Court has power under s 21 of the Federal Court of Australia Act 1976 (Cth) to make declarations. The power is discretionary.
2. In Ainsworth v Criminal Justice Commission [1992] HCA 10; (1990) 175 CLR 564 at 581-582 (Mason CJ, Dawson, Toohey and Gaudron JJ) the High Court identified the following matters in relation to a court's power to make declarations:

(a) it must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions;

(b) the person seeking relief must have "a real interest" in seeking the declaration; and

(c) the question must not be purely hypothetical, the relief claimed must not be in relation to circumstances that have not occurred and might never happen, and a declaration cannot be made if it will produce no foreseeable consequences for the parties.

1. The declarations sought satisfy each of these preconditions.
2. Ainsworth concerned a criminal matter. In ASIC v McDougall [2006] FCA 427; (2006) 229 ALR 158 at [55], Young J observed that since Australian Softwood Forest Pty Ltd v Attorney-General (NSW) (Ex Rel Corporate Affairs Commission) [1981] HCA 49; (1981) 148 CLR 121, courts have recognised that the grant of declaratory relief on the application of a statutory body may serve important law-enforcement purposes.
3. There is no suggestion that a declaration in this matter is not appropriate and I am satisfied it is appropriate to make the declarations sought.

1. The parties jointly seek an order that Optus publish a notice regarding its contravening conduct in the form set out in Annexure B to the proposed orders. Pursuant to s 246(1) of the ACL and s 23 of the FCA Act, the Court has power to make that order. The parties jointly submit that it is in the public's interest for Optus to publish the proposed notice to alert customers and potential customers of Optus to the contravening conduct and raise public awareness of conduct that breaches the ACL.
2. I accept that submission and consider it appropriate that a publication order in the terms proposed should be made.

1. Optus has offered an undertaking to the applicant pursuant to s 87B of the CCA which is at annexure A to the orders. The undertaking is extensive and is directed at a number of matters including addressing the issues the subject of these proceedings. Schedules 2 and 4 to the undertaking are confidential. There will be an order as to confidentiality over that portion of the undertaking.

1. It is for these reasons that the proposed orders will be made.

I certify that the preceding one hundred and sixty three (163) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Sullivan.

SCHEDULE 1 - STATEMENT OF AGREED FACTS AND ADMISSIONS

Form 3

Rule 2.13(4)

Statement of Agreed Facts and Admissions

No. SAD 229 of 2024

Federal Court of Australia

District Registry: South Australia

Division: General

Australian Competition and Consumer Commission

Applicant

Optus Mobile Pty Limited ACN 054 365 696

Respondent

1 INTRODUCTION AND OVERVIEW OF CONDUCT 3

1.1 Introduction 3

1.2 Overview of conduct 4

2 PARTIES 6

3 OPTUS BUSINESS, STORES AND LICENSEES 6

3.1 Optus's business 6

3.2 Optus Products and Optus Services 7

3.3 Optus Stores and Licensees 8

3.4 Optus remuneration and commission structure 11

4 BACKGROUND AND KNOWLEDGE 13

4.1 Telecommunications Industry Ombudsman 13

4.2 Industry Codes and Standards 13

4.3 Optus teams involved in consumer complaints 14

4.4 Optus debt collection activities 15

4.5 Optus Information Technology Systems 16

4.6 Vision Cards and Customer Connection Tool 18

4.7 Investigations and reports of inappropriate conduct by Optus Sales Staff 19

4.8 Optus's knowledge of inappropriate sales practices and treatment of Vulnerable Consumers 39

5 MOUNT ISA STORE 42

5.1 Conduct in respect of Mount Isa Store 42

5.2 Circumstances in which conduct took place in respect of Mount Isa Affected Consumers 47

5.3 Contraventions in relation to the Mount Isa Store 47

6 FURTHER INSTANCES OF UNCONSCIONABLE CONDUCT 48

6.1 Consumer 19 48

6.2 Consumer 21 59

6.3 Other Consumers 64

6.4 Circumstances in which conduct took place in respect of, and contraventions in relation to transactions with, Consumers 1 to 24 64

6.5 Contraventions in relation to Consumers 1 to 24 70

7 OPTUS DARWIN STORES 70

7.1 Background 70

7.2 Conduct 76

7.3 Contraventions in relation to the Optus Darwin Stores 82

8 APOLOGY, STEPS TO PREVENT OCCURRENCE AND OTHER ACTIONS TAKEN BY OPTUS 82

8.1 Cooperation 82

8.2 Contrition 82

8.3 Remediation 83

8.4 Steps taken to prevent mis-selling to Vulnerable Consumers 83

8.5 Other Actions 89

SCHEDULE TO THE STATEMENT OF AGREED FACTS AND ADMISSIONS 91

1 INTRODUCTION AND OVERVIEW OF CONDUCT

1.1 Introduction

1. This Statement of Agreed Facts and Admissions (SAFA) is made jointly by the applicant, the Australian Competition and Consumer Commission (ACCC), and the respondent, Optus Mobile Pty Limited (ACN 054 365 696) (Optus), for the purposes of s 191 of the Evidence Act 1995 (Cth).
2. By reason of the agreed facts set out in this document, Optus admits that it engaged in unconscionable conduct in contravention of s 21 of the Australian Consumer Law (ACL), including in relation to consumers who were vulnerable or experiencing disadvantage (Vulnerable Consumers):

a. on 24 occasions as a result of inappropriate sales conduct in connection with sales of products and services to consumers at Optus Stores (defined below at paragraph 23) to 24 Vulnerable Consumers (24 Consumers);

b. by engaging in inappropriate sales conduct in connection with sales of products and services to consumers at two Optus Stores in Darwin during a two-year period to around July 2023; and

c. by referring debts to third party debt collection agencies and/or selling debts to factoring agencies in circumstances where Optus (including by its senior management) knew, or ought to have known, that the contracts for the relevant products and services had been or may have been created by Optus Sales Staff (defined below at paragraph 31) at the Mount Isa Store without the knowledge of the affected consumers. The term "senior management" is defined at paragraph 66 below.

1. In addition, by reason of the agreed facts set out in this document, Optus admits that it made false or misleading representations to 4 of the 24 Consumers referred to in paragraph 2.a) above, in contravention of ss 18 and 29(1)(i) of the ACL.
2. The consumers who were affected by the contraventions described in paragraphs 2 and 3 above are described in this SAFA as the Affected Consumers.
3. Since the conduct occurred, Optus has taken steps to remediate the Affected Consumers. This has included refunding amounts paid by the Affected Consumers (with interest), waiving outstanding debts and removing default credit listings. Optus has taken a significant number of steps, and has committed to undertaking further steps, to reduce the risk of similar conduct from occurring in the future. Nonetheless, Optus recognises that the nature and impact of the conduct that impacted the Affected Consumers was extremely serious. Further, Optus's systems did not prevent the conduct from taking place in circumstances where Optus senior management became increasingly aware of those deficiencies and Optus failed to act quickly enough to address the conduct, resulting in consumers suffering detriment.
4. The contraventions admitted by Optus will be incorporated into declarations contained in orders to be proposed to the Court (Proposed Orders).
5. The Court may rely upon Optus's admissions and the agreed facts to pronounce judgment and make orders.
6. On the basis of these agreed facts and admissions, the parties will jointly seek the declarations and orders set out in the Proposed Orders. The Proposed Orders will include an order seeking the imposition of pecuniary penalties totalling $100 million for the admitted Contraventions. The basis upon which those penalties are sought will be set out in joint submissions. The parties recognise that the grant of such relief remains at the discretion of the Court.
7. As part of the agreed resolution of this matter, the ACCC has also agreed to accept an undertaking from Optus under s 87B of the Competition and Consumer Act 2010 (Cth) (CCA), the commencement of which is subject to the Court making final orders in respect of these proceedings.

1. These proceedings concern inappropriate sales conduct engaged in by Optus Sales Staff (defined below at paragraph 31) at 16 Optus Stores between August 2019 and July 2023 (Relevant Period), when Optus Sales Staff entered into contracts on Optus's behalf with the Affected Consumers pursuant to which Optus supplied post-paid mobile products and services to the Affected Consumers.
2. The conduct exploited the Vulnerable Consumers, whose vulnerabilities or disadvantages variously included living with mental disability or diminished cognitive capacity, being unemployed, being financially dependent and indigent, English not being a first language, having limited financial literacy, and/or living with learning and comprehension difficulties. A number of the Vulnerable Consumers were First Nations Australians from regional, remote and very remote parts of Australia.
3. By way of example, the inappropriate sales conduct included instances of improper sales practices whereby Optus Sales Staff:

a. subjected the Vulnerable Consumers to undue pressure or influence, inducing those consumers to purchase a large number of goods and services that the consumers often did not want, did not need and/or could not afford;

b. failed to explain the terms and conditions of the contracts for sale to the Vulnerable Consumers in a manner that those consumers could understand, with the result that the Vulnerable Consumers did not understand their ongoing payment obligations;

c. sold the Vulnerable Consumers goods and services that they did not want or could not use, including multiple instances where Optus Sales Staff did not have regard to whether the Vulnerable Consumers had Optus coverage where they lived, and sold Vulnerable Consumers goods and services that they would not be able to use where they lived because of the lack of Optus coverage (Coverage Check Conduct);

d. sold the Vulnerable Consumers goods and services Optus knew or ought reasonably to have been aware the Vulnerable Consumer could not afford following a credit check, including because the credit check had been the subject of the Credit Check Failure conduct (as defined in paragraph 62); and

e. misled the Vulnerable Consumers to erroneously believe that particular goods were "free" or included as part of a bundle at no additional cost (Free Accessories Misrepresentation).

1. In some cases, despite knowing about the inappropriate sales conduct and that the conduct was subject to ongoing internal and external investigations, Optus pursued debt collection activities in respect of the Vulnerable Consumers, including by referring and selling their debts to third party debt collection agencies. In respect of one store (the Optus Mount Isa Store), Optus pursued debt collection activities in circumstances where Optus's senior management knew that those debts related to contracts for goods and services that had been or might have been created by Optus Licensee Staff (defined below at paragraph 31) without the knowledge of the Affected Consumers. Optus's senior management was aware that the majority of Affected Consumers were First Nations Australians from Mount Isa and the Northern Territory.
2. The inappropriate sales conduct took place in circumstances in which Optus's senior management became increasingly aware, or ought to have become increasingly aware, that Optus Sales Staff were engaging in the inappropriate sales conduct, that its existing systems and controls were deficient to avoid or prevent that conduct and that there were deficiencies in how Optus dealt with Vulnerable Consumers, including because Optus did not have a holistic Vulnerable Consumer strategy as at July 2021. Optus senior management did not direct or intend the inappropriate sales conduct.
3. When the instances of inappropriate sales conduct were brought to the attention of those involved in Optus's complaints handling functions and, in some cases, Optus's senior management, Optus generally failed to fully remediate the conduct for long periods of time, sometimes not until the matters were referred to the Telecommunications Industry Ombudsman (TIO) for resolution. In addition, Optus failed to promptly take steps to fix the deficiencies in its systems, which allowed the conduct to continue to occur.
4. The commission-based remuneration structures adopted and endorsed by Optus had the potential to incentivise inappropriate sales conduct, in circumstances where the best practice recommendations to which Optus was required to have regard from 17 June 2022, recommended that business practices be reviewed to avoid conflicted remuneration policies due to the potential of commission-based selling to create, exacerbate, or exploit the vulnerability of consumers.
5. As a result of the unconscionable conduct, many of the Vulnerable Consumers suffered (i) financial harm, incurring thousands of dollars of debt whilst in many cases only receiving modest or extremely modest income; and (ii) non-financial harm, including shame, embarrassment, stress and emotional distress over how they would pay their debts to Optus. Being pursued by debt collectors caused distress and fear for at least some of the Vulnerable Consumers and the listing of defaults affected their credit scores and may have affected their ability to obtain other lines of credit and services.
6. Further, it was only through the very significant time, effort and emotional stress expended by the carers, advocates and/or financial counsellors who supported the Vulnerable Consumers (specifically the 24 Consumers) that some of those consumers were able to realise any resolution to Optus's conduct.

1. Optus is a private company incorporated in Australia under the Corporations Act 2001 (Cth) and is a wholly owned subsidiary of Singtel Optus Pty Ltd (SOPL). Optus is Australia's second largest provider of telephony and data services for mobile telephones and tablets. In the Relevant Period, Optus provided between approximately 1.6 million and 2.1 million postpaid mobile connections (new connections and renewals) each year, and approximately 1 million new prepaid mobile connections each year.

3 OPTUS BUSINESS, STORES AND LICENSEES

3.1 Optus's business

1. In the Relevant Period, SOPL had revenue, earnings and profit (each of which is as reported in SOPL's Audited Financial Statements filed with the Australian Securities and Investments Commission), and mobile customer market share in the order of:

21. SOPL's net assets as at 31 March 2024 were $9,849,000,000.

1. Notwithstanding the above figures, the financial position of SOPL is sufficient to support the proposed penalty.

1. During the Relevant Period, Optus supplied its products and services to members of the public, including through a network of physical stores throughout Australia (Optus Stores).
2. During the Relevant Period, Optus offered a variety of telecommunication products and services to members of the public, including:

a. Optus Products: including mobile phone handsets and associated accessories (such as headphones, speakers, chargers and phone cases), other accessories (such as some wearables including smart watch accessories), SIM cards, modems and hardware; and

b. Optus Services: services supplied by Optus, including pre-paid or postpaid mobile telecommunications, mobile broadband services, content services, and value added services (such as device warranty services).

1. During the Relevant Period, Optus entered into contracts with consumers, under which consumers purchased an:

a. Optus Product by agreeing to pay monthly instalments over a fixed term, for example, of 12, 24, or 36 months. Under these contracts, consumers were billed by Optus on a monthly basis, for a portion of the total cost of the relevant Optus Product. If the consumer terminated the associated mobile or data plan (described below) before the end of the contract term, the consumer was required to pay out the cost of the Optus Product(s) they had agreed to purchase outright and in full; and/or

b. associated mobile or data plan (generally having a term of one month from around November 2019) which would continue to roll over each month until Optus or the consumer cancelled the plan.

3.3 Optus Stores and Licensees

26. During the Relevant Period, Optus licensees included:

a. Network Communications Pty Ltd;

b. Digital World Pty Ltd as trustee for P&D Mustica Unit Trust (Digital World);

c. Innovation Business Services Pty Ltd;

d. Kalder Communications Group Pty Ltd and Kalder Pty Ltd (Kalder);

e. Khe Sanh Pty Ltd (Khe Sanh);

f. Mavaya Pty Ltd as Trustee for The Mavaya Unit Trust (Mavaya);

g. NL Communications Pty Ltd (NL Communications); and

h. Suntel Communications Pty Ltd as trustee for the Suntel Unit Trust (Suntel),

(Optus Licensees).

27. The number of Optus Stores varied over the Relevant Period:

a. there were between 112 and 142 Optus Stores owned and operated by Optus or a related body corporate of Optus (Optus Operated Stores). Optus and its related bodies corporate are referred to as the Optus Group; and

b. there were between 165 and 224 Optus Stores owned by Optus but operated by Optus Licensees (Optus Licensee Stores).

1. Optus Licensees were authorised by Optus to act as its agent in respect of the promotion, sale and supply of Optus Products and Optus Services to members of the public. At all material times prior to 1 August 2024, Optus Licensees were permitted to sell accessories supplied by third parties to consumers at prices largely determined by the Optus Licensee. This included the capacity to sell accessories above the recommended retail price or the maximum price specified by Optus for that accessory.

29. During the Relevant Period, the Optus Operated Stores included:

a. the Optus Belconnen Store located at Shop 73 Westfield Shopping Centre, Benjamin Way, Belconnen, Australian Capital Territory;

b. the Optus Bourke Street Store located at 253 Bourke Street, Melbourne, Victoria;

c. the Optus Melbourne Central Store located at Shop 141 Melbourne Central, 360 Elizabeth Street, Melbourne, Victoria;

d. the Optus Northland Store located at Shop B 14, Northland Shopping Centre, 2-50 Murray Road East, Preston, Victoria; and

e. the Optus Merrylands Store located at Stockland Merrylands, Shop 1037, 1 McFarlane Street, Merrylands, New South Wales.

30. During the Relevant Period, the Optus Licensee Stores included:

a. the Optus Arndale Store located at Shop T151, Arndale Central Shopping Centre, 470 Torrens Rd, Kilkenny, South Australia and operated by Mavaya pursuant to an Optus Retail Licence Agreement dated 9 April 2019;

b. the Optus Auburn Store located at shop Q20, Auburn Central Shopping Centre, cnr Harrow Road & Queen Street, Auburn, New South Wales and operated by Innovation Business Services Pty Ltd pursuant to an Optus Retail Partner Agreement dated 1 September 2021;

c. the Optus Barossa Store located at Barossa Central, Tenancy T-11/1 Murray St, Nuriootpa, South Australia and operated by Network Communications Pty Ltd as Master Licensee;

d. the Optus Brickworks Store located at Brickworks Market T27, 38 South Road Torrensville, South Australia and operated by Mavaya pursuant to an Optus Retail Franchise Agreement dated 8 February 2021;

e. the Optus Cairns Store located at Shop 108, Cairns Central Shopping Centre, 21 McLeod Street, Cairns, Queensland and operated by Suntel pursuant to an Optus Retail Licence Agreement dated 19 November 2018;

f. the Optus Castle Plaza Store located at Shop G01, Castle Plaza Shopping Centre, 992 South Road, Edwardstown, Adelaide, South Australia and operated by Mavaya pursuant to an Optus Retail Licence Agreement dated 17 August 2017;

g. the Optus Casuarina Store located at Shop 106A, Casuarina Square Shopping Centre, 247 Trower Rd, Casuarina, Northern Territory and operated by Suntel pursuant to a Retail Partner Agreement dated 4 July 2008 and a Retail Partner Agreement dated 1 November 2022;

h. the Optus Elizabeth Store located at Shop 138 Elizabeth City Shopping Centre, Elizabeth, South Australia and operated by Mavaya pursuant to an Optus Retail Franchise Agreement dated 25 October 2010;

i. the Optus Launceston Store located at 136 Brisbane Street, Launceston, Tasmania and operated by Kalder pursuant to Optus Retail Franchise Agreement dated 28 November 2022;

j. the Optus Mount Barker Store located at Shop 44, Mount Barker Central Shopping Centre, 1 McFarlane Street, South Australia and operated by Mavaya pursuant to an Optus Retail Licence Agreement dated 10 August 2017;

k. the Optus Mount Isa Store located at Shop 7B, Isa Square, 27-31 Simpson Street, Mount Isa, Queensland and operated by Suntel pursuant to an Optus Retail Licence Agreement dated 19 February 2019;

l. the Optus Munno Para Store located at Shop 64 Munno Para Shopping Centre, Main North Road, Smithfield, South Australia and operated by Mavaya pursuant to an Optus Retail Licence Agreement dated 19 April 2019;

m. the Optus Palmerston Gateway Store located at Shop T36, Gateway Shopping Centre, 1 Roystonea Ave, Yarrawonga, Northern Territory and operated by Suntel pursuant to an Optus Retail Licence Agreement dated 23 July 2018;

n. the Optus Parabanks Store located at Shop 46, Parabanks Shopping Centre, 68 John Street, Salisbury South Australia and operated by Mavaya pursuant to an Optus Retail Licence Agreement dated 9 April 2019;

o. the Optus Rockingham Store located at Rockingham Shopping Centre, 50 Read St, Rockingham, Western Australia operated by Khe Sanh pursuant to an Optus Retail Licence Agreement dated 14 September 2017;

p. the Optus Rosebud Store located at Shop 12, Rosebud Shopping Centre, cnr Boneo Road & McCombe Street, Rosebud, Victoria and operated by Digital World;

q. the Optus St Albans Store located at 63 Alfrieda Street, St Albans, Victoria and operated by NL Communications;

r. the Optus Tea Tree Plaza Store located at Shop 129-130, Westfield Tea Tree Plaza Shopping Centre, 976 North East Road, Modbury, South Australia and operated by Mavaya pursuant to an Optus Retail Licence Agreement dated 9 April 2019;

s. the Optus Westfield Marion Store located at Shop 2047, Westfield Marion Shopping Centre, 298 Diagonal Road, Oaklands Park, South Australia and operated by Mavaya pursuant to an Optus Retail Licence Agreement dated 16 June 2019;

t. the Optus West Lakes Store located at Shop 212-213, Westfield West Lakes Shopping Centre, 111 W Lakes Blvd, West Lakes, South Australia and operated by Mavaya pursuant to an Optus Retail Licence Agreement dated 16 April 2019; and

u. the Optus Winston Hills Store located at Shop 6A, 180-190 Caroline Chisholm Drive, Winston Hills New South Wales and operated by Innovation Business Services Pty Ltd pursuant to an Optus Retail Partner Agreement dated 1 September 2021.

1. Where a staff member was employed by Optus or another entity in the Optus Group to work in an Optus Operated Store, they are referred to as Optus Store Staff. Where a staff member was employed by an Optus Licensee to work in an Optus Licensee Store, they are referred to as Optus Licensee Staff. Optus Sales Staff includes both Optus Licensee Staff and Optus Store Staff.
2. The conduct of the Optus Store Staff set out below was within the scope of their actual and/or apparent authority as agents or employees of Optus.
3. With the exception of the conduct referred to in the Mount Isa PAR, as set out at Section 5, the conduct of the Optus Licensee Staff set out below was conduct engaged in at the direction of, or with the consent or agreement of, one of the Optus Licensees, in circumstances where the giving of the direction, consent or agreement was within the scope of the actual and/or apparent authority of the Optus Licensees as agents of Optus.

34. By reason of the matters set out in paragraphs 32 and 33:

a. the conduct of the Optus Sales Staff set out below was conduct engaged in by Optus for the purposes of the admitted contraventions of the ACL; and

b. the knowledge of the Optus Sales Staff set out below was knowledge of Optus for the purposes of the admitted contraventions of the ACL.

3.4 Optus remuneration and commission structure

35. During the Relevant Period, in Optus Operated Stores:

a. casual Optus Store Staff were not eligible for any commissions or sales incentive payments; and

b. permanent Optus Store Staff were paid:

i. a fixed remuneration component; and

ii. a variable incentive payment which was paid on a monthly basis (Individual Incentive).

1. During the Relevant Period, eligibility for an Individual Incentive payment was contingent on the store in which the Optus Store Staff member worked achieving at least 80% of its store performance target in the relevant month.
2. During the Relevant Period, the amount of a particular Optus Store Staff's Individual Incentive in a given month was based on the total number of devices and services they sold, as well as a "multiplan" incentive, which incentivised multiple sales of eligible Optus Products being made to the same consumer on the same day in the same store, and an "accelerator" multiplier, which was triggered if the store in which the sales representative worked exceeded 100% of its performance target in a given month. Performance targets were set by Optus.

38. During the Relevant Period, in Optus Licensee Stores:

a. the Optus Licensee (and not Optus) determined the remuneration of Optus Licensee Staff; and

b. the Optus Licensee paid commissions on a monthly basis to Optus Licensee Staff.

1. The commission model paid by Optus to the Optus Licensee Stores, which applied from 1 March 2021, consisted primarily of two types of commission - a "Customer Loyalty Reward" and a "Customer Value Reward":

a. The Customer Loyalty Reward was calculated based on sales of Postpaid Voice products. An accelerator could be applied to the Customer Loyalty Reward based on a given store's Customer Experience Score in the relevant month.

b. The Customer Value Reward was an upfront commission, which was calculated based on each new connection or rate plan change where the new access fee was higher than the prior access fee. The amount of the Customer Value Reward differed depending on which Optus Products and Optus Services were sold, and accelerators were applied based on the achievement of a proportion of new or recontracting consumers using the My Optus App.

1. Tactical incentive payments were made in some cases to Optus Licensee Stores to encourage greater sales activity.

41. In the case of all Optus Sales Staff:

a. with some exceptions, commissions were usually calculated on a dollar-for-points basis, such that each dollar from a particular type of sale was worth a certain number of points that contributed to the Optus Sales Staff's sales targets and earned commissions;

b. the value of business sales with respect to the calculation of commissions was 20% higher than 'consumer' sales; and

c. sales targets required Optus Sales Staff to make sales across different categories of Optus Products and Optus Services, such as business products, 'consumer' products, and accessories.

1. In March 2021 (for Optus Licensee Stores) and July 2021 (for Optus Operated Stores), Optus made changes to the commissions structure to enhance consumer-centric components for earning commissions (see further paragraph 366 below).

4 BACKGROUND AND KNOWLEDGE

4.1 Telecommunications Industry Ombudsman

1. The TIO operates the Telecommunications Industry Ombudsman Scheme (TIO Scheme). Through the TIO Scheme, the TIO receives, investigates, makes decisions relating to and facilitates the resolution of complaints about the provision or supply of a Carriage Service by its members. A Carriage Service is defined in s 7 of the Telecommunications Act 1997 (Cth) (Telecommunications Act) as "a service for carrying communications by means of guided and/or unguided electromagnetic energy". Throughout the Relevant Period, Optus was a member of the TIO Scheme.

1. During the Relevant Period, Optus was required to comply with the obligations of the Telecommunications Consumer Protections Code (TCP Code).
2. The TCP Code is an industry code of conduct developed by Communications Alliance Ltd (an industry representative body whose members include Optus Mobile) and approved by the Australian Communications and Media Authority (ACMA) pursuant to s 117 of the Telecommunications Act.
3. The version of the TCP Code in effect for the majority of the Relevant Period was C628:2019, which was registered by ACMA on 1 July 2019. On 17 June 2022, that version of the TCP Code was amended to include Variation No.1/2022, which reflected updates to the November 2021 ACCC guidance material on Consumer Vulnerability and April 2021 ASIC-ACCC guidance material on Debt Collection.
4. Throughout the Relevant Period, Optus was required to comply with the obligations of the Telecommunications (Consumer Complaints Handling) Industry Standard 2018 (Cth) (the Complaints Standard). The Complaints Standard is a legislative instrument made under s 125AA(1) of the Telecommunications Act.
5. The Complaints Standard came into effect from 7 June 2018, and was amended on 14 December 2020 and 1 April 2021.

4.3 Optus teams involved in consumer complaints

1. During the Relevant Period, the following teams within Optus had responsibilities which included responding to and investigating consumer complaints:

a. The Customer Resolution Team (CRT) managed complaints received from Optus consumers, including complaints lodged directly with Optus, complaints made to external bodies such as the TIO and complaints made in-store, over the phone, by email, or through the complaints form on the Optus website.

b. From 16 November 2022, the Complaints Decision Panel (CDP) was involved in reviewing and resolving some escalated consumer complaints involving Vulnerable Consumers on a case-by-case basis, including complaints escalated by Optus Sales Staff and CRT.

1. During the Relevant Period, Optus's Fraud Risk Management (FRM) team was responsible for conducting investigations where there was alleged fraudulent conduct engaged in by Optus Sales Staff at Optus Stores (both Optus Operated Stores and Optus Licensee Stores).
2. Until September 2021, the Profit Protection Team at Optus was responsible for, among other things:

a. identification of non-compliance in relation to:

i. potential fraud;

ii. sales process, including the provision of required information such as critical information summaries, product disclosure statements to consumers, collection and handling of consumer information, application of credits and discounts, credit checks and contract signing;

iii. physical and information security at Optus Stores; and

iv. 'ID & Activation' policy compliance;

b. conducting investigations in relation to whistleblower reports;

c. supporting FRM by referring any identified instances of fraud to FRM and assisting FRM with initial investigations into suspected fraud-related non-compliance based on information they were collecting as part of their functions; and

d. performing unannounced onsite store visits to check for compliance with the above matters.

1. In September 2021, Optus made the staff working in the Profit Protection Team redundant. Following this time, other Optus business units had responsibility for the identification of non-compliance with sales processes, including activities such as those outlined in paragraph 51(a) to (c) above, and from early 2022, undertaking unannounced store visits as set out in paragraph 51.d). However, not all specific activities that had been undertaken by the Profit Protection Team were adopted by other Optus business units.

53. During the Relevant Period:

a. the Optus Executive Committee (ExCo), which was chaired by the then Chief Executive Officer (CEO) of the Optus Group, convened a weekly meeting at which, amongst other things, ExCo received reports on risk issues, compliance issues, disclosable items, updates from different business units, and projects such as the Vulnerable Customers Strategy (eventually called the Advocate Program);

b. the Optus Fraud Committee, which was chaired by the Optus Group's Chief Financial Officer (CFO) at the relevant times, considered reports from FRM; and

c. the then CEO and CFO of the Optus Group and the Director of Internal Audit, received reports of significant fraud cases.

4.4 Optus debt collection activities

1. During the Relevant Period, the process by which unpaid consumer debts were collected was managed by the Group Credit Risk team (now the 'Billing and Credit, Collections' team) in Optus's Corporate Finance Department. The process was largely automated, with steps taken automatically when relevant time periods expired, usually commencing when a debt was 120 days old. The collections process had the following steps:

a. attempt contact with the consumer;

b. partially restrict the consumer's service;

c. again attempt contact with the consumer;

d. fully restrict the consumer's service;

e. cancel the consumer's service;

f. refer the debt to a third party for debt collection; and

g. sell the debt to a third party.

1. After a debt was sold, Optus retained the contractual right to purchase back the account and waive outstanding debts if there was evidence the debt was not properly incurred due to mis-selling or for other reasons.
2. A default listing could be applied in relation to the consumer owing the debt. The default listing could be sought by Optus, or by the third-party factoring agency.
3. During the Relevant Period, Optus was able to apply collection holds to accounts, so that the debt(s) under that account were not automatically referred or sold. These collection holds were applied manually by Optus staff from CRT or Billing and Credit, Collections, which were the only teams able to suspend debt collection activities. Collections holds could be applied to both internal Optus debt collection activities and also (by request to the third party) to debt collection activities of third parties to whom the debts had been referred or sold.
4. Optus policies required, once a complaint had been received, that Optus staff "should place a dispute bar on your customers [sic] account to avoid credit management action being taken while the complaint is ongoing. This is a requirement under the complaints handling standard so it must be done." These collection holds were removed if the complaint was deemed by Optus to be "resolved". A complaint could be deemed "resolved" in circumstances where the consumer or their representative had not responded in a certain timeframe, despite there being no agreed resolution to the matters subject of the complaint. In some cases, this policy was not complied with including in the case of some of the 24 Consumers.

1. During the Relevant Period, Optus used, and permitted Optus Licensee Stores to access and use, Optus's information technology systems (Optus IT Systems).

60. During the Relevant Period, the Optus IT Systems included:

a. A customer relationship management system and database (CRM), which was a collection of applications that together form the key System-of-Record for Optus's retail customer base. Among other things, the CRM is intended to record customer information acquired at the point of sale, including the customer's address.

b. A system to complete credit checks (CCS). The CRM passed particular consumer information to the CCS for the purposes of the CCS forming a view of the creditworthiness of the consumer, in conjunction with information from third party credit agencies. Not all Inflight Orders (defined below at 62.c)) and/or consumer information held in the CRM was passed to the CCS for the purpose of the CCS completing the credit check.

c. A workflow management system to manage consumer complaints from receipt through to resolution. This system contained information about consumer complaints input by CRT, or TIO complaint information referred to Optus. Prior to November 2022, complaint information was not automatically transferred to this system.

1. References to "credit limit" in this document is a reference to the consumer's credit limit as assessed by Optus for that consumer.
2. During the Relevant Period and until at least 24 June 2024, the CRM and CCS was deficient in that Optus Sales Staff were able to engage in Credit Check Failures which included some cases where:

a. Optus Sales Staff, after obtaining a credit approval for a particular order, but prior to submitting or completing an order, undertake further credit checks in succession for products and services with the purpose of circumventing Optus's credit check processes. These credit checks are undertaken but no orders are submitted. Optus Sales Staff then purposefully submit multiple approved orders at the same time. By this process, the credit approval limit is increased and may exceed the credit limit which should apply to that consumer because each preceding unsubmitted order was not taken into account in assessing the consumer's remaining credit limit. This conduct is generally understood within Optus to be "credit check stacking";

b. Optus Sales Staff made unauthorised changes to the consumer details (for example, employment details) in undertaking credit checks in order to obtain an approval for a higher amount of credit for that consumer;

c. Optus Sales Staff obtained credit approval for a particular order, but prior to that order being fully submitted (Inflight Orders), the Optus Sales Staff modified the details of the order to increase the value of the products or services which exceeded the value and/or the number of products or services the consumer was approved for at time of the credit check; and

d. each of the above had the consequence of potentially enabling a higher amount of commission for an Optus Sales Staff member making the sale(s), as the Individual Incentive payment for Optus Store Staff and the commissions paid to Optus Licensee Stores for a given month was based on the value of the sales they made in that month (see paragraph 35 to 42 above).

1. During the Relevant Period, by using information from the Optus IT Systems, Optus had the capability to ascertain, and from time to time did ascertain:

a. how many credit checks had been made for a consumer or how many orders had been placed by a consumer, thereby indicating whether Credit Check Failures may have occurred;

b. the frequency of Credit Check Failures at an Optus Store or by Optus Sales Staff;

c. whether the credit limit of a consumer, who had been sold goods and services, was exceeded;

d. the frequency that exceeding consumers' credit limits occurred at an Optus Store or by Optus Sales Staff;

e. whether a consumer, who had been sold a service requiring Optus coverage, had coverage at their home address;

f. the frequency of the occurrence of selling services requiring Optus coverage to consumers who did not have coverage at their home address;

g. whether a consumer was from a geographically remote community;

h. the proportion of consumers from remote communities who were consumers of a particular Optus Store;

i. Optus Stores which had a high proportion of consumers who never used their services or had never made a payment following the purchase of goods or services (a NP Report); and

j. trends and themes in consumer complaints.

4.6 Vision Cards and Customer Connection Tool

1. In December 2020, Optus launched Vision Cards into Optus Stores. Vision Cards are digital cards, sent to the consumer via text message or email at the point of sale, which set out the key features of the product/service and summarises certain terms and conditions of the contract. A consumer has the option of either accepting or declining the information set out in the Vision Card, but is not required to do so. At the time of introduction, Vision Cards were not generated for the sale of accessories. In or around March 2022, Optus made it mandatory for Vision Cards to be generated for sales of postpaid accessories in Optus Stores. The generation of Vision Cards by Optus Sales Staff is otherwise not mandatory.
2. In May 2021, Optus introduced Customer Connection Tool (CCT) forms to be completed by Optus Sales Staff for each sales transaction (see paragraph 363 below). The forms assist Optus Sales Staff to follow the correct sales process, ask the correct questions, offer suitable products/services and comply with key compliance metrics during the sale.

4.7 Investigations and reports of inappropriate conduct by Optus Sales Staff

1. During the Relevant Period, senior managers of Optus received one or more reports which referred to certain instances of misconduct or mis-selling in Optus Stores (senior management), including the following senior managers:

a. the Chief Executive Officer;

b. Managing Director of Customer Success (previously also Vice President of Retail and Channel Sales);

c. Vice President of Branded Retail;

d. Vice President of Operations & Enablement;

e. Vice President of Risk Management; and

f. Vice President of Regulatory & Public Affairs.

1. Reports about mis-selling in Optus Stores were also received by other management employees, including those who reported directly to senior management (management), including the:

a. Director of Internal Audit;

b. Director of Quality Control;

c. Director of Complex and Vulnerable Care;

d. Associate Director of National Branded Retail Partnerships;

e. Associate Director of FRM;

f. Associate Director of Customer Resolution; and

g. Senior Expert in Regulatory Compliance, Customer Resolution.

1. The reports received by relevant management and senior management personnel included:

a. investigation reports prepared by Optus's FRM team;

b. whistleblower reports;

c. consumer complaints;

d. notifications of possible systemic issues by the TIO; and

e. other management and internal reports.

(a) Mount Isa investigation - August 2019

1. In August 2019, an Optus staff member from the Profit Protection team obtained a NP Report, which showed a significant number of contracts at the Optus Mount Isa Store where no payments had ever been made on the accounts. The report showed that a substantial amount of the bad debt was attributable to the store manager.
2. As a result of the NP Report, Optus's FRM team and the Profit Protection team commenced an investigation into conduct that had occurred at the Optus Mount Isa Store (Mount Isa Investigation). A total of 48 consumer accounts were the subject of the Mount Isa Investigation (the Mount Isa Customer Accounts).
3. The findings of the Mount Isa Investigation were initially outlined in a preliminary assessment report (PAR) dated 22 November 2019 (Mount Isa PAR). The Mount Isa PAR stated, among other things:

a. it appeared that the Optus Licensee Staff member who was the store manager of the Optus Mount Isa Store had conducted multiple credit checks for the affected consumers until he received an approved response (being a form of Credit Check Failures) which was achieved using the following procedures:

i. the Optus Licensee Staff member changed dates of birth, addresses, employment details and name spelling against consumers to obtain a credit approved response;

ii. multiple attempts for approval were made over a short period of time with slight detail changes until the system automatically approved the affected consumer; and

iii. the same Optus Licensee Staff member did not obtain consumer signatures on either the manual or electronic contracts, with the signatures on the contracts not matching those previously obtained in the Optus system and some signatures printed in similar block writing; and

b. it was recommended that the FRM team and Profit Protection Team within Optus undertake an analysis to identify the fraud control gaps that may have existed, which allowed or contributed to this incident.

1. The Mount Isa PAR was distributed to members of Optus senior management and others, including the then Vice President of Retail and Channel Sales, the Vice President of Operations & Enablement, the Head of Group Internal Audit and the then Head of Profit Protection.
2. On 1 December 2019, a copy of the Mount Isa PAR was emailed to the Head of Internal Audit. This email also attached a spreadsheet that listed the consumers that had been identified as affected in the Mount Isa Investigation.

74. Further details regarding the Mount Isa Investigation are set out in Section 5.1 below.

(b) First TIO Accessories Systemic Investigation and other investigations into accessories sales - January 2021

1. On 27 January 2021, Optus was notified by the TIO of a possible systemic issue regarding the sale of accessories to consumers (First TIO Accessories Systemic Investigation). On 28 January 2021, numerous Optus staff including the Vice President of Retail and Channel Sales, Vice President of Operations & Enablement and Director of Quality Control received a copy of the TIO notification. The notification stated that since July 2020, the TIO had identified at least 59 complaints where Optus Sales Staff had misled consumers about the cost of accessories or accessory bundles provided in their contract, and that consumers had told the TIO that:

a. Optus Sales Staff had made the Free Accessories Misrepresentations;

b. consumers had been presented with a tablet or similar device on which to sign the contract, but were not given an opportunity to review the contract documentation in store; and

c. consumers only discovered they were being charged for the accessories once the contract documentation was later emailed to them, or after reviewing a bill.

1. On 11 March 2021, members of senior management, including the then CEO of Optus, received a final investigation report (FIR) relating to the Castle Plaza Store in South Australia. The report stated that an Optus Licensee Staff member had ordered services and accessories against consumer accounts without their knowledge or permission.
2. On 31 May 2021, the Director of Complex and Vulnerable Care noted that that there had been an increase in complaints in sales practices issues relating to accessory bundles.
3. On 15 June 2021, members of senior management, being the Associate Director of National Branded Retail Partnerships and the Director of Quality Control, received a whistleblower report about the Optus Brickworks Store (Brickworks Whistleblower Report) in which it was alleged that:

a. a store manager had directed the whistleblower to add accessories to a consumer's contract without the consumer knowing, and to gloss over the contract terms at point of sale and threatened Optus Licensee Staff if they did not adopt these sales practices; and

b. when informed of the issues, the area manager responded by continuing to apply pressure to increase sales targets.

1. In response, on 21 June 2021, the Director of Quality Control identified that there were some instances where Vision Cards had not been assigned to accessories relating to sales at that store such that Optus would not be aware of whether the consumer agreed or was aware of getting or signing up for the accessories. The Vice President of Operations & Enablement responded on the same day and recommended that Optus ask the retail partner what they were doing to ensure appropriate selling practices.
2. On 5 August 2021, Optus received a letter from the TIO in relation to the First TIO Accessories Systemic Investigation. That letter stated that:

a. the terms listing accessories products in contract documents were unclear and Optus had not outlined any concrete measures to ensure that pressures on Optus Sales Staff, or incentives for selling, do not result in Optus Sales Staff misleading consumers;

b. Optus should take a number of steps, including:

i. amending training materials to direct Optus Sales Staff not to use terms such as "free", "included", "bonus", "gift" or similar terms implying accessories are free when they are not;

ii. reviewing sales contracts to ensure that accessories or accessory bundles were named descriptively, including by replacing "all instances of the term 'ACC MOB BDL' or similarly unclear terms/abbreviations with a clear description of the product";

iii. contacting each consumer that had been charged for the "ACC MOB BDL" product and offering them the option of returning the associated accessories and cancelling the plan at no cost; and

iv. if a consumer contacted Optus to complain that they were misled about the cost of accessories, Optus should resolve the complaint in the consumer's favour.

1. On 17 August 2021, an internal quality control document stated that consumers had reported difficulties disputing accessory repayment charges with Optus because Optus insisted on continued payment of the charges, or did not follow through on agreed solutions.
2. On 24 August 2021, in response to the letter from the TIO referred to in paragraph 80 above, Optus sent a letter to the TIO which stated (among other things) that Optus:

a. had implemented updates to its training to reflect the TIO's suggested improvements;

b. Optus would not be implementing the recommendations summarised in paragraphs 80(b)(iii)-(iv) above, stating: "Optus does not believe it is necessary to contact each customer with an accessory bundle and offer a release from contract. Optus currently has over 600,000 active accounts with accessory bundles associated with them. The complaints received only represent a very small percentage of customers and we have resolved issues raised by these customers. Optus believes that customers were not misled in their acquisition of these accessories and continue to see benefits in being able to access accessories through this program".

1. In September 2021, Optus's Quality Control team updated the 'TCP Code Best Practices' training module for Optus Sales Staff to state that the words "free", "gift" or "bonus" should not be used when selling accessories (see further paragraph 360(a) below).

(c) Investigation into Optus Bourke Street Store - January 2021

1. On 29 January 2021, numerous Optus staff including members of senior management were notified by the Director of Internal Audit about an investigation triggered by a consumer complaint at the Optus Bourke Street Store. The customer complaint had been notified by Optus's Process and Compliance Digital Execution Team to FRM on 29 July 2020. The investigation had found that an Optus Store Staff member had falsified an Australian Business Number (ABN) on a consumer's account when that consumer never held an ABN and were not aware they had been given a business account.

85. The investigation report recommended that Optus issue advice to Optus Stores that:

a. they had to be satisfied that ABNs provided were sourced from the consumer and genuinely associated with the business the consumer claimed to represent; and

b. under no circumstances were Optus Stores to assist a consumer in applying for an ABN or to create an ABN on a customer's behalf.

(d) TIO Debt Collection Activity Systemic Investigation - July 2021

1. On 2 July 2021, the Associate Director of Customer Resolution sent numerous Optus staff including the Managing Director of Customer Success, Vice President of Regulatory & Public Affairs and the Senior Expert in Regulatory Compliance, Customer Resolution a letter received that day from the TIO notifying Optus of a possible systemic issue regarding its debt collection practices. The letter recorded that, between 1 October 2020 and 2 July 2021, the TIO had received 61 complaints about debt collection activity in respect of Optus accounts (TIO notification about debt collection). The complaints related to reports from Optus customers who said they felt harassed by Optus or its debt collection partners (including complaints by consumers reporting being called several times per day, with follow-up emails and text messages, being called late at night or outside of business hours and having family members or close contacts called by debt collectors), as well as debt collection activity continuing where the debt was disputed, settled, or where the consumer had made a complaint about the debt.
2. Between August 2021 and February 2023, correspondence was exchanged between the TIO and Optus in relation to the TIO notification about debt collection. That correspondence included:

a. on 4 August 2021, Optus responded to the TIO stating that it used mercantile agencies for its outbound debt collection activities which were subject to strict master supply agreements to ensure adherence with Optus's policies and regulatory obligations. It further stated that the activities the subject of the TIO's complaint were not conducted by Optus and therefore beyond the scope of the TIO's investigation;

b. on 22 February 2022 and 18 October 2022, Optus responded to the TIO stating that it used system flags after relevant consumer contact which automatically identify consumers whose debts are ineligible for referral or sale to external agencies (including consumers who have active disputes, complaints or credit holds on their accounts, existing or open fraud or ID theft cases, open financial hardship cases, or reported debt agreements);

c. on 16 November 2022, the TIO raised concerns:

i. that Optus had provided inconsistent information compared to information the TIO had received from Optus during the TIO complaint handling processes, including in relation to Optus now claiming debts had not been sold when it had previously told the TIO that the debts had been sold;

ii. about Optus or its agents undertaking collection or credit management activity despite a resolution being open or where the consumer and Optus had reached agreement as to resolution;

iii. about complaints where consumers had expressly named a third-party debt collection agency as pursuing them for the debt, but Optus had informed the TIO that the debt was not sold and had been flagged as ineligible for external referral; and

d. on 14 December 2022, the Managing Director of Customer Success sent the TIO a letter on the part of Optus providing that:

i. in May 2022, Optus had introduced a "Priority Case" flag for consumers who disputed a debt which had been referred and/or sold to an external agency. This would refer the complaint to CRT within 24 hours;

ii. Optus had identified instances where front-line agents had not appropriately escalated complaints by consumers in relation to debts to the right teams within Optus so that steps could be taken to suspend or put a hold on debt collection activity;

iii. Optus would improve its training processes; and

iv. Optus identified that there were instances where complaints about debts had not been escalated in accordance with Optus's procedures and therefore debt collection continued while a complaint was pending. Optus's 14 December 2022 letter to the TIO acknowledged that there was a need for further internal training to ensure consumer complaints (eg about coverage issues or ID theft) were appropriately escalated to Optus's complaints resolution department so consumers' accounts were not subjected to debt collection activity while their complaints were unresolved.

1. Optus's communications to the TIO in paragraphs 87.a) and 87.b) did not disclose the following matters:

a. Optus's Group Credit Risk team (as it was then named), within Optus's Corporate Finance Department, managed the process of referring or selling debts;

b. Group Credit Risk managed the collections practices of the 'mercantile agencies' and any complaints about such practices;

c. even when a debt had been referred and/or sold:

i. consumers were given Optus contact information to contact Optus with any queries or concerns about overdue bills including cases of financial hardship or potential mis-selling; and

ii. Group Credit Risk and Optus CRT retained the power to offer credits, waive or cancel debts, buy back debts, pause collections and/or agree to financial payment arrangements with consumers;

d. the Billing and Credit, Collections team (in addition to Optus CRT) had the ability to suspend or put on hold debt collection activities;

e. Optus accounts referred for external debt collection activities are managed via a platform used by Optus and 'mercantile agencies' to manage and monitor accounts; and

f. that a platform is also used by Optus to track the activities of the 'mercantile agents' in handling the collection (including their communications with consumers).

1. On 1 February 2023, the TIO closed its systemic investigation into Optus's debt collection activity, subject to Optus providing a further update in April 2023.

(e) Paper titled "Disadvantaged and Vulnerable Customers" - July 2021

1. In October 2020, Optus first commenced its review into its Vulnerable Consumer strategy. Between October 2020 to April 2022, various steps were undertaken by Optus to progress the creation and development of its Advocate Program, which was ultimately implemented in April 2022 (see further paragraph 365 below).
2. By 7 July 2021, the Vice President of Operations & Enablement sent a copy of a draft paper to the Director of Quality Control authored by a manager in the Business Risk Management team at Optus titled "Disadvantaged and Vulnerable Customers". The paper recorded the following:

a. the purpose of the paper was to provide a view with respect to Optus's handling of disadvantaged and Vulnerable Consumers and for Optus management to endorse next steps where appropriate;

b. that the proactive assessment of Optus's handling of disadvantaged and Vulnerable Consumers had been prompted by the $50 million fine imposed on Telstra for unacceptable sales conduct involving First Nations consumers in proceedings brought by the ACCC, and ACMA announcing that protecting vulnerable telco consumers was a compliance priority;

c. usually, a root cause of mis-selling is a lack of understanding and awareness by sales staff to identify consumers as vulnerable and taking appropriate measures to ensure that needs are appropriately met;

d. to assess the adequacy of the management by Optus of disadvantaged and Vulnerable Consumers, a high-level exercise had been conducted across sales and service to review Optus's existing preventative, detective, and corrective controls;

e. the review confirmed that Optus's sales training was very broad, primarily focusing on the consumer experience and processes such as credit checks and must mentions. It did not, however, include any specific training or education with respect to identification and handling of Vulnerable Consumers;

f. the review performed was also not able to identify any guidance documents or materials available to staff in sales, service, or resolutions, which would enable them to safely navigate and escalate Vulnerable Consumer related interactions, however, work had been initiated with respect to the holistic Vulnerable Consumer strategy;

g. Optus's mystery shopping exercises (designed to understand if Optus Sales Staff were asking the right sales orientated questions and offering appropriate solutions to the consumer) did not specifically cater for Vulnerable Consumers nor understand whether a consumer has been sold a product which they should not have been sold;

h. there was no clear evidence that Optus was proactively identifying and managing Vulnerable Consumer related complaint themes or trends;

i. the issue was rated as a medium risk issue, with an impact rating of major, as "the impact, were the risk to eventuate, is at major due to heavy reputational and potential dollar impacts demonstrated by the media attention Telstra received"; and

j. management was asked to note the risk exposure and approve an action plan to address the issue via an uplift to tighten Optus's controls, processes, and guidance across multiple teams in Optus to ensure that Vulnerable Consumers were identified and handled appropriately.

1. On or around 14 October 2021, the Managing Director of Customer Success and the Director of Complex and Vulnerable Care presented a paper to a meeting of Optus's ExCo. The paper recorded (among other things) the following:

a. a purpose of the paper was to propose the Optus Advocate Program which would seek to define and design Optus's Vulnerable Consumer strategy;

b. Optus had several existing initiatives which addressed and supported different aspects of Vulnerable Consumers such as financial hardship support, however, there was no enterprise-wide strategy which systematically reviewed Optus's consumer journey and service design to identify opportunities and minimise risk of regulatory penalties;

c. the Optus Advocate Program would seek to define what Optus viewed as Vulnerable Consumers, provide a vision to unify how Optus would identify and support Vulnerable Consumers, unify the existing initiatives which may address Vulnerable Consumers, and implement tactical opportunities; and

d. a dedicated project team would be required to work with Community Advocates to define what 'Vulnerable Consumers' meant for Optus, identify the consumer segments and design a strategy for each.

93. The minutes of the 14 October 2021 ExCo meeting record that:

a. ExCo was provided with a summary of the proposed Optus Advocate Program including its inception, the gap it is seeking to fill in order to ensure better support for consumers experiencing vulnerability, and the analysis and engagement that will be undertaken in order to deliver an improved internal process;

b. ExCo supported the proposal, but did not confirm funding or prioritisation yet, and identified areas of additional consideration and diagnostic analysis, including:

i. incorporating targeted, relevant learnings from other industries such as banking and utility providers, to assist in fast-tracking Optus's own execution;

ii. consideration of a more agile approach to resourcing allocations and streamlining the outlined requirements;

iii. gap analysis and consideration of which areas or segments could be leveraged as consumer experience differentiators, as opposed to areas where standard compliance may be preferred;

iv. acknowledgement that the focus on improving service experience and engagement with Vulnerable Consumers may not be required for Optus for Business or Enterprise, but that it may be beneficial to leverage existing collaborations Enterprise may have with other corporates on this issue; and

v. further acknowledgement of proportionality and the need for appropriate benchmarking given Optus's service offering of $35-50 phone plans.

1. On 14 April 2022, the Managing Director of Customer Success and the Director of Complex and Vulnerable Care presented a paper on the Optus Advocate Program to a meeting of ExCo. That paper recorded (among other things):

a. that the paper was intended to inform ExCo of the strategic direction for how Optus identifies, sells to, and services Vulnerable Consumers;

b. Optus recognised its role in keeping consumers connected with Optus's services, especially in times when they need extra help;

c. there was no clear Vulnerable Consumer strategy, resulting in a fragmented and siloed approach to serving Vulnerable Consumers;

d. that there was not always awareness of Optus's specialist teams for Vulnerable Consumers and that misinformation resulted in consumers being 'bounced around';

e. only some of the Optus Sales Staff received Vulnerable Consumer training, which was light touch and limited to onboarding;

f. to adequately uplift how Optus served Vulnerable Consumers, Optus needed to address the challenges in how it currently operated which made it difficult to meet the needs of Vulnerable Consumers;

g. Optus had identified 19 initiatives to execute to achieve 'best' practice capabilities and become a market leader, with the proposal to roll those out over 3 years from FY23-FY25; and

h. the estimated costs of the proposed FY23 initiatives for which ExCo endorsement was sought were approximately $3.8 million, with $2 million of funding having already been allocated for FY23. Additional funding may be required dependent on commercial delivery models chosen.

95. In relation to the paper, ExCo:

a. acknowledged the importance of the work, providing feedback to reduce the scale and scope of the proposed plan, including a reduction in proposed segments and number of initiatives (from 10 to 8) to ensure laser focus and fulfilment of the strategy in that year; and

b. proposed that a scorecard that demonstrated improvement and success for each of these initiatives would be valuable to ensure awareness of and material uplift in the outcomes being delivered for each of the initiatives, with ExCo to be provided with an update for information and noting; and

c. did not at the time approve additional funding beyond that already allocated.

1. From around April 2022, the Advocate Program was approved and implementation commenced. The implementation of the Advocate Program was subject to delays and budget cuts.
2. On 30 October 2023, Optus implemented its Vulnerable Customer Policy, which outlined Optus's commitment to identifying, supporting, and interacting with Vulnerable Consumers. The associated training module was made mandatory for Optus Sales Staff in December 2023 (see further paragraph 365(d) below).

(f) Optus Winston Hills Store and Optus Auburn Store Investigation - October 2021

1. On 11 October 2021, the Vice President of Branded Retail and others received an FRM investigation report regarding conduct at Optus Licensee Stores formerly located in Auburn and Winston Hills in NSW. The report stated that there was sufficient evidence to establish there had been:

a. four instances of Credit Check Failures to provide the consumer with more Optus Products and/or Optus Services than they could afford; and

b. two instances of consumer information being changed in an attempt to bypass the CCS in order to provide the consumer with more Optus Products and/or Optus Services than they could afford.

1. By around 27 October 2021, Optus terminated its agreement with the third-party licensee that was operating those stores and required the licensee to immediately cease operating them.

1. By no later than 29 March 2022, a member of the Regulatory Compliance, Customer Resolution team received an anonymous whistleblower report relating to improper sales practices at Optus Licensee Stores operated by Mavaya (Mavaya Whistleblower Report), including allegations of:

a. Free Accessories Misrepresentations;

b. consumers being sold phones and accessories without their knowledge, with Optus staff keeping possession for sale or for themselves;

c. consumers being sold accessories that were then refunded by Optus staff, with those staff keeping the refunded amount in cash;

d. consumers with lower English literacy skills or from low socio-economic backgrounds were being charged for products and services they did not agree to; and

e. Mavaya management being aware of the issues above and either encouraged the conduct or did not stop the conduct.

101. The Mavaya Whistleblower Report was originally made on 21 December 2021.

(h) TIO Vulnerable Consumers Systemic Investigation - January 2022

1. On 20 January 2022, the Managing Director of Customer Success sent ExCo a copy of the TIO's 19 January 2022 notification regarding the possible systemic issue regarding Vulnerable Consumers. The notification stated that:

a. between 1 January 2021 and 20 December 2021, the TIO had received at least 70 complaints in respect of Optus from consumers or their representatives, who told the TIO that Optus had sold Optus Products or Optus Services to consumers who did not want or could not afford those products or services. The consumers were typically vulnerable due to disability, low digital literacy, language barriers, or reliance on Government support;

b. the TIO was concerned that Optus's conduct and practices when selling to or assisting consumers experiencing a vulnerability may have negatively affected those consumers; and

c. the complaints of consumers included examples of Optus selling them products when they wanted help with a problem and were not looking to purchase products or services, selling them services or higher value services they did not want or need when they were asking for a basic service, changing their pre-paid service to a post-paid without them realising and that they did not have their support worker present when they were purchasing the service.

103. In January 2022, Optus:

a. opened a "Vulnerable Customers Landing Page" on the "Optus Circle Platform" (a digital platform for Optus staff), that included information on dealing with Vulnerable Consumers;

b. implemented the "Store (Site) Assurance Program" for Optus Stores where it visits approximately 20 Optus Stores each month to assess the stores against risk-based categories, including sales compliance (see further paragraph 364(a) below); and

c. commenced issuing weekly and monthly metric reports which provide an indication of possible non-compliance in Optus Stores (see further paragraph 364(d)(i) below).

1. On 20 April 2022, Optus responded to the TIO's notification outlined in paragraph 102 above, stating that based on the investigations undertaken by Optus:

a. Optus was satisfied that there were no broader systemic issues with sales conduct and practices in relation to Vulnerable Consumers;

b. the complaints identified by the TIO were isolated incidents involving a relatively small number of sales agents;

c. Optus had remediated a majority of the 70 consumers identified; and

d. Optus's policies and procedures set clear guidelines for acceptable sales conduct by agents and its ongoing monitoring across all retail sales channels means that isolated issues can be promptly identified and addressed in an appropriate manner.

1. Optus's communication to the TIO did not disclose Optus's internal findings in January 2022 that Credit Check Failures had occurred in order to make multiple sales to Consumer 3 and Consumer 4 (referred to in Section 6 below and the Schedule) in circumstances where they could "ill afford" to maintain ongoing fees.

(i) Investigations into Optus Arndale Store - October 2021 to May 2022

1. In October 2021, an investigation into the Optus Arndale Store was instigated after the TIO notified Optus of complaints concerning the selling of services at an Optus Store in Adelaide to consumers who live in areas with no Optus coverage (First Optus Arndale Investigation).

107. In connection with the First Optus Arndale Investigation, on 20 October 2021:

a. the TIO emailed Optus's Vice President of Regulatory and Public Affairs regarding the failure to conduct coverage checks for Consumer 3 and Consumer 4 (referred to in Section 6 below and the Schedule); and

b. Optus's Vice President of Operations and Enablement noted that it appeared Optus had "failed simple process" in relation to these consumers, "especially with regard to coverage check".

1. On 27 January 2022, in relation to the First Optus Arndale Investigation, members of senior management and others received an FRM investigation report which stated that Optus Licensee Staff at the Optus Arndale Store had made multiple sales to Vulnerable Consumers from remote First Nations communities with no Optus coverage and who could not afford to maintain the fees. This included details about conduct affecting Consumers 3 and 4 referred to in Section 6 below and the Schedule, being vulnerable consumers from remote First Nations communities with no Optus coverage whose occupations were listed as "pensioner" and were sold a total of four devices, eleven services and two accessory bundles. By 8 February 2022, ExCo was also receiving direct briefings on the issue.
2. Optus commenced a further investigation into the Optus Arndale Store in February 2022, and was instigated after Mavaya notified Optus that it had identified an abnormally high number of sales at the Optus Arndale Store on 16 February 2022 (the Second Optus Arndale Investigation). In relation to the Second Optus Arndale Investigation:

a. the findings of the investigation were reported to senior management on 9 January 2023;

b. the findings of the investigation included that Optus Licensee Staff had deliberately caused Credit Check Failures in order to make multiple sales to consumers who could not afford to maintain the ongoing fees connected with their orders. Those consumers were Consumer 11 and Consumer 12 (referred to in Section 6 below and the Schedule);

c. as a result of the investigation, Optus issued Mavaya a breach notice, which stated that $9,129.03 would be clawed back from Mavaya by Optus in respect of commissions payable to Mavaya; and

d. Optus also directed Mavaya to engage an independent third party to conduct an external audit of Mavaya's operations at all of its Optus Licensee Stores. In response to this direction, Mavaya engaged PwC to undertake the review and, on 25 August 2023, Optus received a report prepared by PwC dated 18 July 2023.

1. On 17 May 2022, the Director of Quality Control and the Associate Director of FRM received a whistleblower report alleging that:

a. the store manager and area manager of the Optus Arndale Store:

i. encouraged Optus Licensee Staff to sell Optus Products and Optus Services by making false statements;

ii. were pressuring the whistleblower to complete a sale or increase a sale, including of accessories, by making false commitments to consumers;

iii. were pressuring the whistleblower to sell accessories to Vulnerable Consumers to increase sales;

b. the area manager threatened to terminate the whistleblower unless he listened to him; and

c. sometimes two to three new services would be attached to a new SIM as part of a contract in order to achieve targets, even when the consumers did not need the services and asked why they were included.

1. On 2 June 2022, the Director of Quality Control, in an email to an Optus staff member, set out the findings of an investigation in response to the whistleblower report which stated that:

a. multiple consumers advised that they were being sold accessories and that they were "free of charge";

b. there had been an instance where a consumer was pressured into purchasing handsets and accessories when they only wanted a SIM service;

c. a majority of Optus Licensee Staff at the Optus Arndale Store had over six months experience with working at the store, with the store manager, area manager and "Coach" having over five years tenure;

d. the Optus Licensee Staff were aware of the correct selling practices; and

e. there should be a discussion as to whether this store should continue to sell as there had been previous discussions about their sales practices.

1. On 25 July 2022, the FRM team prepared a preliminary assessment report into the Optus Arndale Store in respect of an investigation that had been commenced in May 2022. This report was provided to members of senior management and others. The report stated that an Optus Licensee Staff member had engaged in Credit Check Failures. The issue was also noted in a paper presented to ExCo on 13 April 2023.

(j) Second TIO Accessories Systemic Investigation - April 2023

1. On 5 October 2021, employees within the Regulatory Compliance, Customer Resolution team and the Regulatory and Public Affairs Division exchanged correspondence noting that the First TIO Accessories Systemic Investigation focused on consumer confusion when entering into an accessory bundle contract having regard to sales practices, the way an accessory bundle is reflected in consumer contracts and the Vision Cards process.
2. On 24 October 2022, the FRM team prepared a final investigation report in response to a report made on 26 August 2021. The investigation report stated that Optus Licensee Staff at the Optus Barossa Store had engaged in improper sales practices, including making Free Accessories Misrepresentations and exploiting the vulnerability of a disabled consumer.
3. On 9 November 2022, the FRM team prepared a final investigation report which stated that two Optus Licensee Staff members, including the store manager, at a store in South Australia had made Free Accessories Misrepresentations to one consumer.
4. In December 2022, Optus's Executive Risk Committee was first notified that Optus management was reviewing alleged deceptive conduct at stores involving creation of "payment bundles" or payment-over-time structures potentially being used to mislead consumers and oversell accessories.
5. On or around 12 December 2022, the Director of Quality Control received a preliminary assessment report into deceptive sales tactics having been used at the Optus Belconnen Store (Belconnen PAR). The Belconnen PAR had been prepared in response to a whistleblower allegation that Optus Store Staff had created a misleading impression that consumers had received accessories for free, when in fact they had received a discount.
6. On 4 January 2023, members of senior management and others received an FRM investigation report which found that Optus Sales Staff at four Optus stores in Sydney had:

a. engaged in widespread misleading, deceptive and fraudulent conduct at the relevant stores including adding accessories to consumer accounts without their knowledge;

b. made Free Accessories Misrepresentations;

c. had overcharged consumers for accessories, including charging more than the RRP for accessories;

d. provided inaccurate or no tax invoices for accessories; and

e. entered false notes in Optus's IT Systems citing a "misunderstanding" or "change of mind" upon return of the accessories.

1. On 24 January 2023, the Director of Quality Control and others received notification of a whistleblower report in relation to Optus Licensee Stores operated by Masterlink in Victoria, at which stores it was alleged that Optus Licensee Staff had been adding accessories to consumer contracts without their knowledge.
2. On 17 February 2023, the Director of Quality Control and others received notification of a whistleblower report in relation to the Optus Merrylands Store. The whistleblower report alleged that a member of Optus Store Staff had been taking advantage of consumers who had English as a second language (and therefore could not fully understand what they were committing to), in order to upsell accessory products in excessive amounts as part of the cost of their overall plan. The whistleblower report also alleged that the same member of Optus Store Staff had bypassed credit checking rules.
3. On 16 March 2023, members of senior management and others received a preliminary assessment report about an allegation that an Optus Licensee Staff member at an Optus Licensee Store in South Australia had made the Free Accessories Misrepresentation to a consumer (Mount Barker PAR).
4. On 8 April 2023, members of senior management and others received a final investigation report in relation to improper sales practices at the Optus Melbourne Central Store (Melbourne Central FIR). The Melbourne Central FIR had been prepared in response to a whistleblower report made on 12 January 2023, alleging that the store manager at that store had used deceptive sales practices, including signing consumers up to contracts they were not fully aware of, and had instructed Optus Store Staff at the store to do the same. The whistleblower report also alleged that the Melbourne Central Store sold a significantly higher number of promotional devices compared to other like stores due to using deceptive sales practices.

123. In May 2023, Optus:

a. implemented a sales tool which requires Optus Sales Staff to educate consumers on accessories payment terms and methods (see further paragraph 360(b) below); and

b. engaged an external vendor to enable more frequent (monthly) mystery shopping visits at regional and remote locations (see further paragraph 364(b) below).

1. On 12 May 2023, a final investigation report was prepared following on from the Mount Barker PAR which recorded FRM's assessment that the allegation in the Mount Barker PAR had been substantiated such that the Optus staff member had deceived two customers by advising them that the accessories were included in their plan and not explaining that they had to pay for them, and sold the customers accessories that they did not need (Mount Barker FIR).
2. In July 2023, Optus implemented a process that requires, in relation to accessory sales, a Vision Card to be generated. The Vision Card, when generated, automatically lists things that the Optus Sales Staff "must mention" to the consumer when processing sales of accessories (see further paragraph 360(c) below).
3. On 5 April 2023, the TIO notified Optus of a second possible systemic issue regarding the sale of accessories (Second TIO Accessories Systemic Investigation), including that the TIO had identified complaints alleging that:

a. Optus Sales Staff had made Free Accessories Misrepresentations to consumers;

b. some consumers were told they could choose a bundle of accessories up to a certain value;

c. some consumers were given the accessories without a choice;

d. an accessories plan was added to some consumers' accounts without their knowledge and without receiving any accessories; and

e. when consumers found out they were being charged for the accessories, they attempted to return the accessories, but were told they would either have to continue paying monthly charges for the accessories or pay out the cost of the contract if they wanted to cancel.

1. On 8 May 2023, Optus responded to the TIO regarding the Second TIO Accessories Systemic Investigation and stated:

"Based on our investigations, we do not believe there is a systemic issue with our systems, processes, or procedures for the selling practices of accessory bundles to consumers. However, we acknowledge the TIO has identified some isolated incidents and we have identified improvement opportunities to address this."

(k) Optus's reports of Credit Check Failures - November 2021 to April 2024

1. On 25 November 2021, a meeting of the Customer Success Committee of Optus discussed the existence of a "work around" to bypass Optus's credit checking and validating process, which had been uncovered by Optus's FRM team.
2. On 14 February 2022, Optus's Group Credit Risk team (as it was then named) commenced issuing a weekly report identifying instances where core Group Credit Risk processes and functions were outside the accepted tolerance levels (see further paragraph 364(d)(ii) below).
3. On 18 February 2022, a member of senior management and others were informed that Optus's Group Credit Risk team (as it was then named) were looking into issues with Optus's system for credit checking in the context of the Second Optus Arndale Investigation "to see if more can be done to strengthen their parameters".
4. On 22 June 2023, the Quality Control team provided the Associate Director of FRM, the Director of Quality Control and others with a presentation on Credit Check Failures which had been prepared in or around May 2023. The presentation recorded that:

a. Quality Control were aware of the existence of the issue of Credit Check Failures;

b. Optus Sales Staff engaging in Credit Check Failures could lead to Optus breaching the TCP Code, by putting consumers into financial hardship;

c. there were impacts to Optus with revenue loss, early tenure churn and putting pressure on other internal teams such as Optus CRT;

d. an increase in complaints could lead to TIO investigations; and

e. Optus did not tolerate fraudulent behaviour and where manipulation of credit is identified, that conduct would be subject to an independent investigation.

1. On 23 June 2023, Optus gave a direction to Optus's IT team to execute a system change in its CRM designed to minimise Credit Check Failures. This change was implemented on 24 June 2024 (see further paragraph 359 below).
2. On 2 November 2023, the Director of Quality Control circulated to several Optus staff a draft presentation that referred to the existence of the following gaps in Optus's control objectives:

a. there was no control activity in place to ensure coverage was always checked;

b. incorrect information for credit checks could lead to manipulated credit assessments and there was no way for a consumer to check the accuracy of supplied information;

c. there was no control activity to verify all Vision Cards relevant to a sale were sent to the consumer; and

d. there was a capacity to bypass the process to obtain digital signatures and sales orders could be processed without consumer signatures.

1. On 14 December 2023, Optus's Executive Risk Committee was provided with a paper titled "Optus Fraud Update" which recorded that:

a. there was "growing concern" with Credit Check Failures;

b. Optus IT Systems allowed for potential Credit Check Failures when orders were inflight between order submission and order activation;

c. Credit Check Failures were prevalent in the Northern Territory, however, was found to be more widespread across other channels, largely retail;

d. a change request to mitigate the system gap in Optus's IT Systems was scheduled for a February 2024 release, but was under pressure due to there being no business program manager assigned; and

e. the primary driver for the conduct was to increase sales.

1. On 9 February 2024, emails between the Vice President of Operations & Enablement and the Director of Quality Control record that the IT systems change request to prevent Credit Check Failures appeared to have stalled, and that Quality Control were not able to continually prevent Credit Check Failures manually. The Vice President of Operations & Enablement confirmed that funding would have to be found.
2. On 2 April 2024, the Optus FRM team completed a final investigation report in relation to the St Albans Store (St Albans FIR). The St Albans FIR was provided to members of senior management and others. The St Albans FIR records that between September 2022 and January 2024, Optus Licensee Staff (including the store manager and three other Optus Licensee Staff) and the Optus Licensee, had:

a. engaged in Credit Check Failures by placing an order for fixed products and modifying the order to Stand Alone Accessories after the credit check approved the fixed application. The Optus Licensee was responsible for 24 such instances. The store manager was responsible for 39 such instances. Three other members of Optus Licensee Staff were responsible for a combined further 25 such instances;

b. in the case of the Optus Licensee of the Optus St Albans Store, allowed Optus Licensee Staff to engage in Credit Check Failures; and

c. ignored the credit advice and knowingly entered false information into Optus IT Systems to obtain credit approval.

1. On 4 April 2024, in emails between Optus management it was discussed that the IT systems change request to prevent Credit Check Failures had not been completed and was at that time scheduled for May 2024. One Optus staff member requested that he be given an "understanding of the volumes of order stacking that we see, and any associated complaints that arise." Another Optus staff member indicated that there was "no current way to highlight order stacking as the issue for a complaint".
2. In April 2024, Optus launched a new tool for Optus Stores that collates Key Risk Indicators (KRIs) with the aim of identifying anomalous or outlier transactions (see further paragraph 364(d)(iii) below).

4.8 Optus's knowledge of inappropriate sales practices and treatment of Vulnerable Consumers

1. Having regard to the matters outlined in Section 4.7 above, Optus had knowledge of the following matters by the following dates.

(a) Credit Check Failures

140. In light of the matters referred to in Section 4.7(a) and 4.7(k):

a. from at least December 2019, Optus, including through its senior management, knew or ought reasonably to have known that Optus Sales Staff could engage, and had engaged, in Credit Check Failure conduct; and

b. at all material times until at least 24 June 2024, the Optus IT Systems did not control and were ineffective to prevent Credit Check Failures, no system fix had been implemented to fix gaps in the relevant IT Systems, and that there was some delay on the part of Optus between the time a system fix was identified and its implementation due to, amongst other things, inadequate resourcing.

(b) Sale of accessories

1. In light of the matters in Section 4.7(b), from at least January 2021, Optus, including through its senior management, knew or ought reasonably to have known that there were numerous complaints alleging that Optus Sales Staff were overselling accessories to consumers and making Free Accessories Misrepresentations.
2. Despite the matters referred to in paragraph 141, at all material times after January 2021, Optus:

a. failed to have adequate and effective procedures and controls to prevent and detect all instances of overselling of accessories to consumers who did not want or need the products or did not know they were being sold the products;

b. did not itemise accessories on consumer contracts or list the total cost of accessories over the contract term;

c. until at least 31 January 2024, did not have procedures or controls in place that prevented Optus Licensee Stores from selling accessories above the RRP or the maximum price specified by Optus for those accessories, unlike for other products or services;

d. until at least 1 August 2024, did not have procedures or controls in place that prevented Optus Licensee Stores from setting their own or changing Optus's RRP for accessories, or selling accessories above the RRP specified by Optus for those accessories; and

e. maintained its commission structure (referred to in paragraphs 35 to 42 above) which, from at least 17 June 2022, Optus knew or ought reasonably to have known such commission structures had the potential to incentivise the overselling of accessories in a manner which could exacerbate or cause vulnerability of consumers.

1. In light of the matters in paragraphs 78, 100, 110, 111, 117, 119, 120 and 122, from February 2023, Optus, including through its senior management, also knew or ought reasonably to have been aware of at least seven whistleblower reports and numerous consumer complaints (including those notified in the First TIO Accessories Systemic Investigation and in respect of Consumers 5, 6 and 14 (see Section 6 below and the Schedule)) alleging that Optus Sales Staff were overselling of accessories to consumers and making the Free Accessories Misrepresentation.
2. Since at least 5 December 2023, Optus took steps to remove the function in its billing system which allowed Optus Sales Staff to sell accessories (or devices) above the RRP set by Optus. This change was implemented on 31 January 2024 (see further paragraph 360(d) below).

1. In light of the matters referred to in Section 4.7(c) above, from at least January 2021, Optus, including through its senior management, knew or ought reasonably to have known that Optus Sales Staff were able to include and had included false ABN details for consumers when entering into a contract.
2. This arose in circumstances where there can be material differences in credit check processes and outcomes, as well as complaints processes, for a business customer as compared to a consumer.

1. In light of the matters in Section 4.7(d) above, Optus, including through its senior management, knew or ought reasonably to have known:

a. from at least July 2021, that there were numerous complaints by consumers relating to Optus's debt collection practices, and that these practices may have been inconsistent with relevant laws and good industry practice; and

b. from at least 14 December 2022, that there had been instances where complaints about a debt or debt collection had not been escalated by the front-line Optus staff to the correct teams within Optus in accordance with Optus's procedures, with the result that debt collection by third party agencies was not paused or suspended and continued while a complaint was pending.

(e) Vulnerable Consumers

1. In light of the matters in Section 4.7(e) above, Optus, including through its senior management, knew or ought reasonably to have known that:

a. from at least July 2021, Optus staff were not trained in the identification and handling of Vulnerable Consumers;

b. from at least April 2022, that Vulnerable Consumers were subjected to a fragmented experience and being bounced around rather than having concerns addressed; and

c. that it was not until around February 2022 that Optus provided:

i. specific training or education with respect to identification and handling of Vulnerable Consumers; and

ii. guidance documents or materials to Optus staff working in sales, service or resolution which would have enabled them to appropriately navigate and escalate Vulnerable Consumer related interactions.

1. From February 2024 to September 2024, Optus launched various additional mandatory training modules relating to the handling of Vulnerable Consumers (see further paragraph 365(e) below).
2. In March 2024, Optus established the Optus Customer Advocate team which is a team that independently reviews escalated complaints and oversees consumer remediation (see further paragraph 365(b) below).

1. In light of the matters referred to in paragraph Section 4.7(i) above, from at least October 2021, Optus, including through its senior management, knew, or ought reasonably to have known that there was an issue with, and example of, Optus Sales Staff selling Optus Services to consumers from remote communities who lived in areas without Optus coverage and therefore would be unable to use those Optus Services where they lived.

152. Despite the knowledge referred to in paragraph 151 above:

a. it was not until November 2023 that Optus updated its CCT forms (see paragraph 361 below) to include coverage checks in the checklist (although the sale can still be made without completing the CCT); and

b. although coverage checks were mandatory for home internet connections, Optus did not mandate coverage checks for mobile services.

1. In November 2023, Optus introduced monthly reporting on whether Optus Sales Staff had conducted coverage checks at the point of sale. Optus also conducted an initial trial of a new network coverage information platform in selected Optus Stores, which was then rolled out to all Optus Stores in June 2024 (see further paragraph 361(a) below).
2. In November 2023, Optus also launched a dedicated onshore Specialist Care team within CRT to support Vulnerable Consumers (see further paragraph 365(a) below).

5 MOUNT ISA STORE

5.1 Conduct in respect of Mount Isa Store

1. In August 2019, an Optus staff member from the Profit Protection team obtained a NP Report, which showed a significant number of contracts at the Optus Mount Isa Store where no payments had ever been made on the accounts. The report showed that a substantial amount of the bad debt was attributable to the store manager.
2. As a result of the NP Report, Optus's FRM team and the Profit Protection team commenced the Mount Isa Investigation (as defined in paragraph 70).
3. On 29 October 2019, the Mount Isa Investigation was referred to the Optus Fraud Committee. The report stated that a store manager had falsified identification documents and consumer information to create services and had used the identities of First Nations consumers who were not aware that their identities had been used. It also stated that full clawback would be sought from the franchisee if the allegation was substantiated.
4. At the Optus Fraud Committee meeting, the Director of Internal Audit noted the report referred to in paragraph 157 above. Attendees at the meeting included the then CEO of Optus, the then CFO of Optus and members of Optus senior management and Optus management.
5. The findings of the Mount Isa Investigation were initially outlined in a preliminary assessment report (PAR) dated 22 November 2019 (Mount Isa PAR).

160. The Mount Isa PAR stated, among other things:

a. as part of the Mount Isa Investigation, the contracts identified in the NP Report had been reviewed;

b. the review revealed that 82 contracts in the NP Report appeared to have been fraudulently completed without consumer knowledge;

c. 16 of the consumers affected had two or more contracts completed in their names;

d. the majority of affected consumers were of First Nations heritage and would be considered "vulnerable" Australians living in remote parts of the country. In particular, searches of social media confirmed the majority of the never pay contracts were entered into by First Nations Australians, with addresses from both Mount Isa and the Northern Territory;

e. it appeared that the Optus Licensee Staff member who was the store manager of the Optus Mount Isa Store had conducted multiple credit checks for the affected consumers until he received an approved response (being a form of Credit Check Failures) which was achieved using the following procedures:

i. the Optus Licensee Staff member changed dates of birth, addresses, employment details and name spelling against consumers to obtain a credit approved response;

ii. multiple attempts for approval were made over a short period of time with slight detail changes until the system automatically approved the affected consumer; and

iii. the same Optus Licensee Staff member did not obtain consumer signatures on either the manual or electronic contracts, with the signatures on the contracts not matching those previously obtained in the Optus system and some signatures printed in similar block writing; and

f. it was recommended that the FRM team and Profit Protection Team within Optus undertake an analysis to identify the fraud control gaps that may have existed, which allowed or contributed to this incident.

1. The Mount Isa PAR was distributed to members of Optus senior management and others, including the then Vice President of Retail and Channel Sales, the Vice President of Operations & Enablement, the Head of Group Internal Audit and the then Head of Profit Protection.
2. On 1 December 2019, a copy of the Mount Isa PAR was emailed to the Head of Internal Audit. This email also attached a spreadsheet that listed the consumers that had been identified as affected in the Mount Isa Investigation.
3. On or around 4 February 2020, the Mount Isa Investigation was again referred to a meeting of the Optus Fraud Committee, which was attended by the then CEO of Optus, the then CFO of Optus and members of Optus senior management and Optus management. The report stated:

a. the assessed value of the affected accounts was $155,732; and

b. all International Mobile Equipment Identity numbers (IMEIs) had been blocked.

1. Every mobile and tablet device has an IMEI, which is a unique 15 digit electronic serial number. If an IMEI is blocked, the device will not be able to be used on any Australian network. That means that it will not be able to send or receive calls, text messages, or data.
2. A draft final investigation report in relation to the Mount Isa Investigation was prepared and dated 14 January 2020 (Mount Isa FIR). The Mount Isa FIR stated that "All IMEIs listed and believed to be fraudulently stolen have been blocked." The IMEIs had not in fact been blocked. The Mount Isa FIR did not refer to remediation of the customers to which it referred.
3. None of the Mount Isa PAR, the Mount Isa FIR, the reports to the committees, the minutes of the meetings of those committees or records of contemporaneous communications by Optus's senior management referred to any steps to be taken to remediate or address any harm to consumers.
4. From at least February 2020, Optus, including through its senior management, was aware of the Mount Isa Investigation and the findings of the Mount Isa PAR, including the finding that 82 contracts in relation to 46 consumers appeared to have been entered into at the Optus Mount Isa Store fraudulently without consumer knowledge.
5. After Optus, including through its senior management, was notified of the conduct the subject of the PAR, Optus did one or more of the following:

a. referred outstanding debts owed to Optus associated with the contracts that had been identified in the Mount Isa Investigation to third party debt collection agencies, despite the Mount Isa Investigation having identified that the contracts appeared to have been entered into fraudulently without consumer knowledge;

b. sold outstanding debts associated with the contracts identified in the Mount Isa Investigation to a third party factoring agency, despite the Mount Isa Investigation having identified that the contracts appeared to have been entered into fraudulently without consumer knowledge; and

c. subjected the Mount Isa Customer Accounts to debt collection activities by third party debt collections agencies and third party factoring agencies, and to having defaults listed against them with credit reporting bodies, despite the Mount Isa Investigation having identified that the contracts appeared to have been entered into fraudulently without consumer knowledge.

1. Optus did not apply collections holds in respect of the Mount Isa Customer Accounts. This resulted in 42 of the Mount Isa Customer Accounts, in respect of which either no payments were made or payments had fallen behind, having their debts referred and/or sold to third party debt collection agencies and/or factoring agencies pursuant to Optus's debt collection processes, despite the Mount Isa Investigation having identified that the contracts appeared to have been entered into fraudulently without consumer knowledge.
2. At least 40 of the Mount Isa Customer Accounts were subject to one or more of the following types of conduct by third party debt collection agencies and/or factoring agencies to which Optus had referred and/or sold the consumers' debts:

a. threats to inform credit reporting bodies of the default (if a report had not already been made), which included being advised that this could affect their ability to obtain future credit;

b. reports of default being made to credit reporting bodies;

c. threats of legal proceedings being commenced against them; and

d. regular and in some cases excessive calls (with one consumer receiving at least 831 calls from the third party collection agency in the period 28 October 2021 to 12 July 2024).

1. At least two Mount Isa Consumer Accounts whose debts were subjected to those debt collection practices entered into a payment arrangement with the third party debt collection agency and/or factoring agency, and either made payments towards, or paid the entirety of, the asserted debt.
2. In addition, 40 of the Mount Isa Customer Accounts had defaults listed against them with credit reporting bodies. None of these default listings were requested by Optus to be removed until 2024. The default listings had the potential to harm the financial position and applications for credit of the holders of the Mount Isa Customer Accounts. In particular:

a. commercial credit defaults remain on a credit report for five years, even when a consumer has repaid the amount; and

b. in at least one instance, a holder of a Mount Isa Customer Account, who had repaid in full the asserted debt connected with the Mount Isa Investigation, had been negatively impacted by the default listing under her name when seeking credit to purchase a car in 2024.

1. At least two holders of Mount Isa Customer Accounts advised the third party collection agency that they did not have a contract with Optus or otherwise that it was entered into fraudulently, but they continued to be pursued by the collection agency.
2. At the time of selling the debts, Optus failed to disclose to the debt collection agencies to whom it sold the debts the circumstances in which those debts arose.
3. Notwithstanding that Optus, including through its senior management, was aware of the conduct the subject of the Mount Isa Investigation from at least February 2020:

a. As stated at paragraph 166 above, none of the Mount Isa PAR, the Mount Isa FIR, the reports to the committees, the minutes of the meetings of those committees or records of contemporaneous communications by Optus's senior management referred to any steps to be taken to remediate or address any harm to consumers.

b. Optus did not pause debt collection activity or the referral and/or sale of debts incurred by the Mount Isa Customer Accounts, nor require manual assessment of those referrals and/or sales.

c. Some of the Mount Isa Customer Accounts' debts were not reassigned or repurchased by Optus, nor were defaults removed, until as late as July 2024. Until this time, the third party collection agencies were pursuing some of the holders of the Mount Isa Customer Accounts for repayment of the asserted debts.

1. Subsequent to the commencement of the proceedings, Optus has conducted further investigations in relation to the Mount Isa Customer Accounts. In three cases, it appears that the relevant contracts reflected actual purchases of goods and/or services by the consumer and were not fraudulently entered into or the consumer details used to create the contracts were fabricated such that no real consumer was adversely affected by the debt collection activities described above. However, some actual consumers were adversely affected by the debt collection activities described above, where the consumer had not in fact purchased the relevant goods and/or services (Mount Isa Affected Consumers).

5.2 Circumstances in which conduct took place in respect of Mount Isa Affected Consumers

1. The circumstances of Optus's unconscionable conduct in respect of the transactions with the Mount Isa Affected Consumers were:

a. from at least February 2020, Optus, including through its senior management, knew or ought reasonably to have known that:

i. each of the consumers were in a substantially weaker bargaining position relative to Optus, including because the consumers did not know about the contracts and were First Nations persons living in remote communities; and

ii. none of the consumers had knowledge (or it appeared that none of the consumers had knowledge) of the contracts that had been created at the Optus Mount Isa Store;

b. despite sub-paragraph (a), after February 2020, Optus pursued debt collection activities in relation to debts that the Mount Isa Affected Consumers had accrued; and

c. Optus unfairly failed to disclose to the debt collection agencies (to whom it sold the debts) the matters within Optus's knowledge about the provenance of those debts.

1. In respect of the Mount Isa Affected Consumers, Optus staff did not comply with the requirement of the TCP Code, cl 6.8.6, to inform the relevant credit reporting bodies within one working day of becoming aware that a customer or former customer has been default listed in error.

5.3 Contraventions in relation to the Mount Isa Store

1. As referred to in Sections 5.1 and 5.2 above, Optus referred debts to third party debt collection agencies and/or sold debts to factoring agencies in respect of the Mount Isa Affected Consumers in circumstances where Optus knew that the contracts for the relevant products and services had been or may have been created by Optus Licensee Staff without the knowledge of the affected consumers. This conduct involved many contraventions of s 21(1) of the ACL occurring as part of a pattern of behaviour of unconscionable conduct.

6 FURTHER INSTANCES OF UNCONSCIONABLE CONDUCT

6.1 Consumer 19

180. Consumer 19 is a First Nations person. English is not Consumer 19's first language.

1. At all material times, Consumer 19 lived in Darwin. She travels to a remote indigenous community in the Northern Territory about once a year and on other occasions for family reasons.
2. In around 2018, Consumer 19's part time role involved travelling to remote indigenous communities around the Northern Territory. From around 2018 to 2023, Consumer 19 worked for the Aboriginal Justice Unit within the Northern Territory Department of Attorney-General and Justice on a casual basis. Consumer 19 has not worked since December 2023 and her main income is from Centrelink payments. She also earns approximately $4,500 a year from selling art to an art gallery in Darwin.
3. At all material times relevant to Consumer 19's interactions with Optus, Consumer 19 had at least nine accounts with Optus and was provisioned at least 7 service numbers by Optus.
4. Optus has identified Consumer 19 as one of the consumers affected by the Darwin Inappropriate Selling Conduct (as defined at paragraph 347 below).
5. On 1 June 2021, Optus Sales Staff at the Optus Darwin Store sold Consumer 19 the following Optus Products and Optus Services under two contracts relating to one account (first and second Consumer 19 Contracts):

a. First contract: one phone, one phone or data plan and one Device Protect service. This contract had:

i. a monthly fee of $142.94;

ii. a total minimum cost of $2,058.38; and

iii. a total cost of $3,430.56 if the contract continued for a 24-month term.

b. Second contract: one accessories bundle. This contract had:

i. a monthly fee of $16.65;

ii. a total minimum cost of $399.60;

iii. a total cost of $399.60 if the contract continued for a 24-month term.

1. After entering into the first and second Consumer 19 Contracts, Consumer 19 tried to use the phone in remote communities and it did not have coverage.
2. On 14 March 2022, Consumer 19 attended the Optus Casuarina Store with her sister. During her visit, Consumer 19 told Optus Sales Staff she only worked casually, and Optus Sales Staff gave Consumer 19 and her sister a phone, speaker and a charger and told Consumer 19 the speaker and charger were "free".
3. On 14 March 2022, Optus Sales Staff at the Optus Casuarina store sold Consumer 19 the following under two contracts relating to two further accounts associated with Consumer 19 (third and fourth Consumer 19 Contracts):

a. Third contract: one phone and one phone or data plan. This contract had:

a. a monthly fee of $67.03;

b. a total minimum cost of $1,523.72; and

c. a total cost of $2,413.08 if the contract continued for a 36-month term.

b. Fourth contract: one accessories bundle. This contract had:

i. a monthly fee of $13.32;

ii. a total minimum cost of $479.52; and

iii. a total cost of $479.52 if the contract continued for a 36-month term.

1. On 23 December 2022, Consumer 19 attended the Optus Store because she wanted to pay a bill. Consumer 19 showed Optus Sales Staff a printed bill and asked to enter into a payment arrangement because she was struggling to pay her Optus bills.
2. During this visit, Optus Sales Staff gave Consumer 19 at least one SIM card and told Consumer 19 it was "free".
3. On 23 December 2022, Optus Sales Staff at the Optus Casuarina Store sold Consumer 19 one phone or data plan under a contract relating to another account associated with Consumer 19 (fifth Consumer 19 contract). This contract had:

a. a monthly fee of $29;

b. a total minimum cost of $29; and

c. a total cost of $343 is the contract continued for a 12-month term.

1. On or prior to 23 January 2023, Optus sent Consumer 19 numerous communications via letter, text message and email regarding late payments, including:

a. between 19 June 2021 and 23 January 2023 (and up to 18 March 2023) in relation to account associated with the first and second Consumer 19 Contracts;

b. between 2 May 2022 and 19 September 2022 in relation to account associated with the third Consumer 19 Contract;

c. between 16 August 2022 and 23 January 2023 (and up to 23 March 2023) in relation to account associated with the fourth Consumer 19 Contract;

d. between 1 September 2022 and 23 January 2023 (and up to 2 May 2023) in relation to account associated with the fifth Consumer 19 Contract;

e. between on or around 20 November 2021 and 5 December 2022, Consumer 19 entered into payment arrangements and/or payment extensions for outstanding payments on account associated with the first and second Consumer 19 Contracts;

f. on or around 10 December 2021 and 8 February 2022, Consumer 19 had her Optus Services restricted under account associated with the first and second Consumer 19 Contracts;

g. on 30 August 2022, Consumer 19's account associated with the third Consumer 19 Contract was closed due to missed payments and an invoice for $1,215.16 was issued on 1 September 2022;

h. on 12 October 2022, a debt of $1,215.16 on account associated with the third Consumer 19 Contract was referred to Credit Corp. The debt was "settled" with Credit Corp on or around 29 December 2022; and

i. on 23 January 2023, Optus sent Consumer 19 a text message and email stating that her payment of $404.21 for account associated with the first and second Consumer 19 Contracts was late.

193. At the time of attending the Optus Casuarina Store on 23 January 2023, Consumer 19:

a. wanted to pay an Optus bill;

b. already had a phone and an Optus pre-paid service as the service number associated with another Consumer 19 Contract had been moved to a pre-paid service;

c. had the following active payment obligations for Optus Products and Optus Services:

i. on one account, ongoing monthly payments of $16.65 for accessories and an outstanding debt of $404.21;

ii. on another account, ongoing monthly payment of $13.32 for accessories; and

iii. on another account, ongoing monthly payments totalling $104.37 for two Optus mobile plans and a phone and an outstanding debt of $104.37.

194. During Consumer 19's visit to Optus Casuarina Store on 23 January 2023:

a. Consumer 19 showed Optus Sales Staff a printed Optus bill and paid the outstanding debt of $104.37 on one of her accounts;

b. Optus Sales Staff told Consumer 19 that there was a "special" and that if she purchased two phones, then the second phone, two SIM cards and accessories would be "free" and a "bonus" with the first phone (the Consumer 19 Free Products Representation);

c. Optus Sales Staff told Consumer 19 she would be paying less than she had been paying to Optus and that everything would be "$500 or below";

d. Optus Sales Staff did not ask Consumer 19 if she had a job and said she was a "regular customer";

e. Optus Sales Staff asked Consumer 19 if she had an ABN number but did not explain the reason for asking;

f. Optus Sales Staff asked Consumer 19 to sign but did not explain the document to Consumer 19; and

g. Consumer 19 entered into five contracts with Optus to purchase Optus Products and Optus Services (the sixth to tenth Consumer 19 Contracts, set out below).

1. Under the sixth Consumer 19 Contract, Optus Sales Staff at the Optus Casuarina Store sold Consumer 19 two phones and two phone or data plans. This contract had:

a. a monthly fee of $130.36 for the first twelve months;

b. a monthly fee of $170.36 thereafter;

c. a total minimum cost of $2,296.16; and

d. a total cost of $5,652.96 if the contract continued for a 36-month term.

1. Under the seventh Consumer 19 Contract, Optus Sales Staff at the Optus Casuarina store sold Consumer 19 two phone plans. This contract had:

a. a monthly fee of $110;

b. a total minimum cost of $110; and

c. a total cost of $1,320 if the contract continued for a 12-month term.

1. Under each of the eighth, ninth and tenth Consumer 19 Contracts, Optus Sales Staff in the Optus Casuarina store sold Consumer 19 one accessory bundle. Each of the eighth, ninth and tenth Consumer 19 Contracts had:

a. a monthly fee of $8.32;

b. a total minimum cost of $299.52; and

c. a total cost of $299.52 if the contract continued for a term of 36 months.

1. The sixth, seventh, eighth, ninth and tenth Consumer 19 Contracts are referred to collectively as the January 2023 Consumer 19 Contracts.
2. Each of the accounts associated with the January 2023 Consumer 19 Contracts was an "Individual/Sole Trader" account.
3. At no point prior to Consumer 19 entering into January 2023 Consumer 19 Contracts did Optus Sales Staff:

a. ensure that Consumer 19 had read the contracts;

b. explain to Consumer 19 the terms of the contracts or explain that they were creating "Individual/Sole Trader" accounts;

c. explain to Consumer 19 that she was purchasing two mobile phones, two mobile phone plans and two associated data plans, and that she would continue paying for the Optus Products and Optus Services she was required to pay under the first to fifth Consumer 19 Contracts; and

d. inform Consumer 19 of the total cost of those Consumer 19 Contracts or explain to Consumer 19 the ongoing cost of the Optus Products and Optus Services provided.

1. Prior to or around the time Consumer 19 signed the January 2023 Consumer 19 Contracts, Optus Sales Staff:

a. conducted six credit checks for the January 2023 Consumer 19 Contracts, one of which was declined;

b. caused Credit Check Failures in relation to each of the January 2023 Consumer 19 Contracts, resulting in Consumer 19 being sold Optus Products and Optus Services exceeding her credit approval; and

c. created five accounts under Consumer 19's name, in addition to the four accounts already in Consumer 19's name as at 23 January 2023.

202. At the time of entering the January 2023 Consumer 19 Contracts, Consumer 19:

a. did not understand that she was purchasing all the Optus Products and Optus Services specified under those Consumer 19 Contracts;

b. did not know or understand the total cost of those Consumer 19 Contracts; and

c. did not know or understand that she would be required to pay for all the Optus Products and Optus Services under those Consumer 19 Contracts.

203. After entering into the January 2023 Consumer 19 Contracts:

a. Consumer 19 made payments under the January 2023 Consumer 19 Contracts;

b. from May 2023, Consumer 19 started receiving communications from Optus regarding missed payments on three of her accounts; and

c. between 24 January 2023 to 23 April 2024, Consumer 19 received bills and payment reminders from Optus.

1. On 1 February 2023, Consumer 19 called Optus to enquire about her billing delivery method.
2. In around February 2023, Consumer 19 returned to the Optus Casuarina Store regarding concerns that her bill on two accounts was so high (to which Optus Sales Staff at the Optus Casuarina Store responded that what she could afford was not enough and she had to pay more).
3. Consumer 19 returned to the Optus Casuarina Store a few more times that month to pay amounts towards her Optus bills.
4. On 8 March 2023, Consumer 19 called Optus enquiring about the cost to pay out a device under the sixth Consumer 19 Contract.
5. On or around 24 April 2023, Consumer 19 called Optus, asking how much she had left on the bill for the same device.
6. Between 10 May 2023 and 26 July 2023, Consumer 19 called Optus a number of times about cancelling Optus Products and Optus Services.
7. On 23 May 2023, Optus sent Consumer 19 a bill for the account associated with the sixth Consumer 19 Contract, stating that she owed $466, which included $336.64 for one of the phones.
8. On 8 June 2023, Consumer 19's services on that account associated with the sixth Consumer 19 Contract were limited because of missed payments. Optus granted Consumer 19 a payment extension to 9 July 2023. On 23 June 2023, Optus sent Consumer 19 a further payment request for $595.36.
9. Between 23 June 2023 and 23 July 2023, the contracts associated with the eighth and ninth Consumer 19 Contracts were cancelled and on 23 July 2023, Optus issued Consumer 19 bills which included payout fees of $249.60 for the accessories on those contracts.
10. During a phone call on 14 July 2023, Consumer 19 attempted to pay out a device and cancel Optus Services to which Optus Sales Staff offered Consumer 19 two discounts (which Consumer 19 declined).
11. In around late July 2023, Consumer 19 went to the Optus Casuarina Store to request a final bill and Optus Sales Staff told her to call customer services.
12. On or around 31 July 2023, Consumer 19 lodged a complaint with the TIO in relation to two of her accounts associated with the fifth, sixth and seventh Consumer 19 Contracts, although only one account number was provided. The complaint indicated that Consumer 19 wished to cancel accounts and switch mobile services to pre-paid and that Optus had not sent her the final bill or cancelled her account.
13. On 1 August 2023, Optus and Consumer 19 reached an agreement in relation to the accounts subject to the TIO complaint which involved keeping one of the accounts associated with the sixth Consumer 19 Contracts active, cancelling the other account associated with the seventh Consumer 19 Contract and phone services, with Consumer 19 paying out the device and accessory fees on the fifth and sixth Consumer 19 Contracts (and she was happy to do so on the understanding she did not need to pay any other amounts to Optus and that her debts would be settled) and keeping two phone services active so Consumer 19 could transfer the phone to Telstra.
14. On or around 7 August 2023, Optus referred a debt of $346.36 owed by Consumer 19 on the account associated with the fourth Consumer 19 Contract to Commercial Credit Control.
15. On 23 August 2023, Optus sent Consumer 19 a bill for $1,657.80 which included the device payout fee associated with the sixth Consumer 19 Contract as agreed between Optus and Consumer 19 in resolution of Consumer 19's TIO complaint.
16. Between 23 July 2023 and 23 August 2023, the tenth Consumer 19 Contract was cancelled. On 23 August 2023, Optus sent Consumer 19 a bill for $241.28 which included an accessories pay out fee for that contract.
17. On 25 August 2023, Optus closed the account associated with the fifth Consumer 19 Contract due to missed payments.
18. On 13 September 2023, Optus cancelled the account associated with the sixth Consumer 19 Contract due to unpaid overdue payments.
19. On 19 September 2023, Optus sent Consumer 19 communications stating that she owed Optus $213.38 in relation to the seventh Consumer 19 Contract and that her services were about to be suspended due to missed payments.
20. On 21 September 2023, Optus waived Consumer 19's debt of $221.36 under the fourth Consumer 19 Contract and requested the default listings in relation to debts owed on the third Consumer 19 Contract be removed.
21. From at least 21 September 2023, the Consumer 19 account associated with the sixth Consumer 19 Contract was identified as being impacted by misconduct the subject of the Darwin Suntel investigation (Darwin Suntel Investigation). The draft FIR (which was subsequently updated on 12 February 2024) in respect of the Optus Darwin Stores found that Consumer 19 was oversold services and devices as a result of Credit Check Failures, namely manipulation of the credit check system which permitted the provisioning of more services and devices to Consumer 19 than what the credit restrictions allowed.
22. The investigation incorrectly identified the number of Consumer 19's contracts and account numbers affected and this error was not identified by Optus until around October 2024. In fact, all five of the January 2023 Consumer 19 Contracts were subject to Credit Check Failures.
23. Between 8 and 30 October 2023, Optus unsuccessfully tried to direct debit outstanding amounts on the account associated with the sixth Consumer 19 Contract, and referred the debt of $1,538.80 to a third party debt collection agency.
24. On multiple occasions after 30 October 2023, Consumer 19 was contacted by debt collectors, including via text message and email. She made some payments towards these debts, including to debt collectors.
25. On or around 20 October 2023, Consumer 19 entered into an agreement with Commercial Credit Control to pay $287.54 owing on an account associated with the eighth Consumer 19 Contract.
26. On 10 November 2023, a default listing was made under Consumer 19's name in relation to debts owed under accounts associated with the first and second Consumer 19 Contracts.
27. On 13 November 2023, Consumer 19 received an email from Commercial Credit Control advising that she had defaulted on a payment arrangement associated with the ninth Consumer 19 Contract.
28. On 17 November 2023, Optus referred Consumer 19's debt of $790.78 under an account associated with the fifth Consumer 19 Contract to Commercial Credit Control.
29. On 1 December 2023, Optus sold Consumer 19's debt of $151.28 under an account associated with the first and second Consumer 19 Contracts to Credit Corp.
30. On 14 December 2023, Optus referred Consumer 19's debt of $128.38 under an account associated with the seventh Consumer 19 Contract to Australian Debt Recoveries.
31. By around 23 December 2023, Consumer 19 paid off in full the remaining amounts on accounts associated with the eighth and ninth Consumer 19 Contracts. On 23 December 2023 she was issued a bill for the account associated with the tenth Consumer 19 Contract, which had an adjusted balance of $0 and stated "W0 due to Collection Automatic Request".
32. On 1 March 2024, Optus sold a debt of $1,238.80 that Consumer 19 owed to under the account associated with the sixth Consumer 19 Contract to Credit Corp.
33. On or around 25 March 2024, Consumer 19 contacted a financial counsellor for assistance as she had been struggling to pay all of the Optus accounts and was finding the communications from Optus and debt collectors stressful. She was scared that if she did not pay off her debts to Optus she would go to gaol.
34. Consumer 19 asked the financial counsellor for assistance withdrawing money from her superannuation to pay for her Optus debts.
35. On 25 March 2024, the financial counsellor contacted Optus regarding Consumer 19's TIO complaint, requesting a copy of all of the contracts, account reconciliations, sales information and the TIO correspondence.
36. On 10 April 2024, a default listing was made under Consumer 19's name in relation to debts owed under the fifth Consumer 19 Contract.
37. On 17 April 2024, Optus recorded Consumer 19's accounts and corresponding debts as:

a. account associated with the seventh Consumer 19 Contract with a debt of $128.38;

b. account associated with the tenth Consumer 19 Contract with a debt of $266.24; and

c. account associated with the sixth Consumer 19 Contract with a debt of $1,238.80.

1. On 27 March 2024, the financial counsellor sent follow up correspondence to Optus, requesting a response to the 25 March 2024 email.
2. On 11 April 2024, Optus responded that they had attempted to contact the financial counsellor "to discuss the concerns raised by [Consumer 19]" and asked if the financial counsellor still required the relevant documents.
3. On 25 April 2024, Optus sent the financial counsellor the account notes for Consumer 19. On 28 May and 3 July 2024, the financial counsellor replied asking for Consumer 19's contracts. On 3 July 2024, Optus responded that they could not "see" any contracts because Consumer 19 had business accounts and the relevant Optus employee did not have access.
4. On or around 26 April 2024, Optus manually wrote off the outstanding amounts of $128.38 on account associated with the seventh Consumer 19 Contract and $640.78 on account associated with the fifth Consumer 19 Contract.
5. On 1 May 2024, Optus repurchased Consumer 19's debt of $151.28 on the account associated with the first and second Consumer 19 Contracts from Credit Corp.
6. On 10 May 2024, Optus requested that the default listing made under Consumer 19's name in relation to debts owed account associated with the fifth Consumer 19 Contract be removed.
7. On 29 May 2024, the financial counsellor requested that Credit Corp cease collection and contact with Consumer 19 regarding her Optus account. Credit Corp advised that it had placed Consumer 19's account on hold.
8. On 31 May 2024, Optus sold Consumer 19's debt of $128.38 on the account associated with the seventh Consumer 19 Contract to ARM Collect.
9. On 25 June 2024, Consumer 19 paid ARM Collect $128.38 to satisfy the debt (in full) under the account associated with the seventh Consumer 19 Contract.
10. As at 8 August 2024, Consumer 19 owed Optus an amount of $1,633.42 in respect of one of the accounts (associated with the sixth Consumer 19 Contract), no remediation steps had been taken, Optus was assessing the account and Optus had not waived Consumer 19's debt.
11. On 5 September 2024, Optus provided the sixth Consumer 19 Contract to Consumer 19's financial counsellor. On 6 September 2024, the financial counsellor responded explaining her view that the sixth Consumer 19 Contract was unconscionable and requested that Optus buy back the debt from Credit Corp, waive the debt, not require return of hardware, remove the default listing on Consumer 19's credit file, reimburse Consumer 19 for monies paid towards the contract, and compensate Consumer 19 for the stress caused.
12. As at 6 September 2024, Optus had not repurchased Consumer 19's debt on the account identified to be impacted in the Darwin Suntel Investigation and no remediation steps had been taken in relation to that account.

253. On 9 September 2024, Optus advised the financial counsellor that:

a. Consumer 19 had used two of the service numbers on the account associated with the sixth Consumer 19 Contract, identified as impacted in the Darwin Suntel Investigation, which were both cancelled. Optus received total payments on that account of $1,416.80;

b. it had waived the current balance of $128.38 on one of the accounts (associated with the seventh Consumer 19 Contract) and the default listing had been recalled. Optus had credited the full payments to this account of $511.33;

c. another account (associated with the tenth Consumer 19 Contract) had been returned to a $0.00 balance and total payment received on that account was $33.28; and

d. a member of Optus's Expert Specialist Care Team had requested that a refund of $628.28 be provided to Consumer 19 for one of the phones and that Optus was not requesting the return of the two phones.

1. The debt of $128.38 on the account associated with the seventh Consumer 19 Contract, which Optus claimed on 9 September 2024 to have waived, was in fact paid by Consumer 19 on 25 June 2024.
2. On 10 September 2024, the financial counsellor responded requesting the return of all money paid by Consumer 19 on the Consumer 19 Contracts, which would mean an additional refund of $1,416.80 for the amount Consumer 19 had paid on the account identified as impacted in the Darwin Suntel Investigation.
3. On 11 September 2024, Optus declined the financial counsellor's request for an additional refund as "the payments were for services used during this time and therefore valid charges". Optus reiterated its offer for Consumer 19 to retain the device at no additional cost to Consumer 19, or for Consumer 19 to return the device for a refund of the payments made for the device of $308.16.

257. On 27 September 2024, Optus confirmed to the financial counsellor that it:

a. had removed the default listings in respect of Consumer 19;

b. had refunded the payments of $511.33 made by Consumer 19 for services not used by Consumer 19;

c. would not seek the return of the device; and

d. would not refund the payments of $1,416.80 made by Consumer 19 for services used by Consumer 19.

258. In respect of the January 2023 Consumer 19 Contracts, Optus:

a. referred Consumer 19's debts for debt collection after Consumer 19 had made a TIO complaint;

b. continued to pursue those debt collection activities after being contacted by a financial counsellor acting on behalf of Consumer 19; and

c. continued to pursue those debt collection activities after Optus made findings that Consumer 19 had been subject to Credit Check Failures,

in circumstances where Optus, including through its senior management, knew or ought reasonably to have known of the matters referred to in paragraph 147 above.

6.2 Consumer 21

1. Consumer 21 is a First Nations person. Consumer 21 has very low English literacy, with English being his fourth language, and little understanding of contracts. At all material times, Consumer 21 was unemployed and received income from welfare payments from Centrelink.
2. Consumer 21 lived in a remote indigenous community not covered by Optus's mobile network.
3. On 4 October 2022, Optus Licensee Staff at the Optus Casuarina store sold Consumer 21 three mobile phones, three phone or data plans, three accessories bundles and three "Upgrade and Protect" service plans under one contract (October 2022 Consumer 21 Contract). The October 2022 Consumer 21 Contract related to one account (C21 Account 1).

262. The October 2022 Consumer 21 Contract had:

a. a monthly fee of $193.68 for the first three months;

b. a monthly fee of $238.68 for the fourth through to the twelfth month;

c. a monthly fee of $263.18 thereafter;

d. a total minimum cost of $2,684.98; and

e. a total cost of $9,045.48 if the contract continued for a 36-month term.

1. Prior to or around the time Consumer 21 entered into the October 2022 Consumer 21 Contract, Optus Licensee Staff:

a. did not conduct a coverage check or ignored the coverage check in selling Optus Products and Optus Services to Consumer 21;

b. entered one external credit check; and

c. entered false information on the credit check, namely by stating Consumer 21's "Occupation" was a "Professional", when he was unemployed; and

d. added multiple service numbers to C21 Account 1.

1. Consumer 21 made payments totalling $250.16 on the October 2022 Consumer 21 Contract. On 4 October 2022, Consumer 21 paid $125.08 upfront for the Optus Products and Optus Services associated with two of the service numbers under the October 2022 Consumer 21 Contract. On or around 7 November 2022, Consumer 21 paid a further $125.08 under the October 2022 Consumer 21 Contract.
2. On 13 February 2023, Optus sent Consumer 21 monthly payment requests for amounts owed in relation to the October 2022 Consumer 21 Contract.
3. On 27 February 2023, Consumer 21 attended the Optus Casuarina Store because he wanted to buy a mobile phone. Optus Sales Staff at the Optus Casuarina store obtained Consumer 21's signature on six contracts which comprised the following (February 2023 Consumer 21 Contracts):

a. First contract: one watch, one watch data plan, two phones, two phone or data plans, three "Upgrade and Protect" service plans and one accessories bundle. This contract had:

i. a monthly fee of $215.40 for the first month;

ii. a monthly fee of $245.40 thereafter;

iii. a total minimum cost of $3,731.59; and

iv. a total cost of $7,335.24 if the contract continued for a 36-month term.

b. Second contract: two phones, two phone or data plans, two accessories bundles and two "Upgrade and Protect" service plans. This contract had:

i. a monthly fee of $207.82 for the first month;

ii. a monthly fee of $237.82 thereafter;

iii. a total minimum cost of $2,858.02; and

iv. a total cost of $7,481.52 if the contract continued for the 36-month term.

c. Third contract: one accessories bundle. This contract had:

i. a monthly fee of $8.32;

ii. a total minimum cost of $299.52; and

iii. a total cost of $299.52 over the 36-month term.

d. Fourth contract: one accessories bundle. This contract had:

i. a monthly fee of $8.32;

ii. a total minimum cost of $299.52; and

iii. a total cost of $299.52 over the 36-month term.

e. Fifth contract: one accessories bundle. This contract had:

i. a monthly fee of $13.32;

ii. a total minimum cost of $479.52; and

iii. a total cost of $479.52 over the 36-month term.

f. Sixth contract: one accessories bundle. This contract had:

i. a monthly fee of $13.32;

ii. a total minimum cost of $479.52; and

iii. a total cost of $479.52 over the 36-month term.

1. The February 2023 Consumer 21 Contracts related to a second account (C21 Account 2).
2. At no point prior to Consumer 21 entering into the February 2023 Consumer 21 Contracts, did Optus Licensee Staff inform Consumer 21 that:

a. he would not be able to use the Optus Services where he lived because there was no Optus coverage in the area he lived;

b. they were making a further and separate account under his name; and

c. he did not need to obtain additional Optus Products and Optus Services to purchase a mobile phone.

1. Prior to or around the time Consumer 21 entered into the February 2023 Consumer 21 Contracts, Optus Sales Staff:

a. entered seven credit checks for Consumer 21 under two different names;

b. engaged in Credit Check Failures in order to sell Consumer 21 Optus Products and Optus Services of a value exceeding Consumer 21's applicable credit limit;

c. did not conduct a coverage check for where Consumer 21 lived, or ignored the coverage check, in selling the Optus Products and Optus Services to Consumer 21; and

d. added multiple service numbers to C21 Account 2.

270. After entering into the February 2023 Consumer 21 Contracts:

a. Consumer 21 did not have Optus network coverage where he lived;

b. as a result of not being able to use them where he lived, Consumer 21 disposed of the devices purchased under the Consumer 21 Contracts; and

c. Consumer 21 was charged monthly payments by Optus but he could not afford them.

1. Together, the October 2022 Consumer 21 Contract and February 2023 Consumer 21 Contracts are the Consumer 21 Contracts.
2. Between 4 March 2023 and 4 July 2023, Optus sent Consumer 21 monthly payment requests for $905.26 owed in relation to the October 2022 Consumer 21 Contract.
3. On or around 11 April 2023, Consumer 21 met with a financial counsellor to obtain assistance in relation to multiple issues including the February 2023 Consumer 21 Contracts.
4. In around mid-April 2023, a complaint was lodged by the financial counsellor on Consumer 21's behalf.
5. On 2 May 2023, Optus acknowledged that Consumer 21 was unemployed as at 27 February 2023 and lived in an area with no coverage. Optus made an offer to resolve the complaint (which was refused by Consumer 21) by:

a. waiving outstanding charges if Consumer 21 returned the devices in good working order; and

b. placing Consumer 21 on a payment plan in respect of the debts of $2,471.12 for the accessories (which would not be refunded or cancelled).

1. On 18 May 2023, the financial counsellor made a further complaint over the phone to Optus on behalf of Consumer 21 in relation to the February 2023 Consumer 21 Contracts.
2. On 30 May 2023, a further complaint was made by the financial counsellor that the sales to Consumer 21 were unconscionable and a request was made that all debt be waived, Consumer 21 not be required to return the devices and the adverse credit listings be removed.
3. On 2 and 5 June 2023, there was correspondence regarding Optus potentially crediting Consumer 21 if devices were returned, but Consumer 21 no longer had the devices.
4. On 2 June 2023, Optus referred the $7,804.18 debt owed in relation to C21 Account 2 to Commercial Credit Control.
5. On 9 June 2023, Optus responded to the financial counsellor that it was continuing to assess Consumer 21's complaint.
6. On or before 21 June 2023, Optus sought repayment of the outstanding debt owed by Consumer 21 (at that time around $8,000) and on the same day the financial counsellor requested Optus not call Consumer 21 and direct correspondence to her.
7. Between 22 June 2023 and 27 June 2023, there was internal Optus correspondence regarding C21 Account 2 to the effect that:

a. Credit Check Failures had occurred, including as a result of entering incorrect information about Consumer 21; and

b. Optus was responsible for placing the consumer in a financially difficult position.

1. On 30 June 2023, Optus made an offer to resolve Consumer 21's complaint by waiving outstanding charges, placing an IMEI block on devices under that account and blocking Consumer 21's credit file to prevent him being sold further post-paid Optus Products or Optus Services.
2. On 18 July 2023, an Optus Staff member contacted the financial counsellor stating "[Consumer 21's] complaint was referred to my team to investigate further with a focus on the sales practices within the store". On 19 July 2023, Optus advised the financial counsellor that Optus was further investigating Consumer 21's complaint and asking to speak to Consumer 21 to "ensure that this type of behaviour will not be repeated for other customers".
3. From at least 24 July 2023, Consumer 21's Account 2 was identified as being impacted by misconduct the subject of the Darwin Suntel Investigation. The PAR and FIR in respect of the Optus Darwin Stores found that Consumer 21 was oversold accessories as a result of Credit Check Failures on C21 Account 2.
4. Notwithstanding the correspondence set out in paragraphs 275 to 285 above, Optus did not at any time identify or notify the financial counsellor that C21 Account 1 existed, or seek to address that account in correspondence or other form of resolution.
5. In relation to C21 Account 1, which was not the account identified as being impacted as part of the Darwin Suntel Investigation:

a. on 25 July 2023, Optus issued a "Manual Bad Debt Write Off" for the debt owed; and

b. on 2 August 2023, Optus put that debt up for debt sale tender.

1. On 14 August 2023, Optus advised the financial counsellor that the amount outstanding of $7,804.18 had been removed with respect to C21 Account 2, that there were no longer any active services on the account, and that the account had been cancelled.
2. In relation to C21 Account 1, on 30 August 2023, a debt of $905.26 was sold to a third party debt collection agency and default listed with respect to Consumer 21.
3. On 29 September 2023, Optus sent communications to Consumer 21 in relation to the remediation steps it had taken in respect of C21 Account 2.
4. Notwithstanding paragraphs 285 and 290, Optus did not take steps to buy back Consumer 21's debt, or remove the default listing under his name, in relation to the October 2022 Consumer 21 Contract until on or around 27 September 2024. As at 16 October 2024, Optus had not waived the debt in relation to the October 2022 Consumer 21 Contract.
5. From 27 September 2024, Optus took steps to buy back debt on C21 Account 1, remove the default listing under Consumer 21's name and waive all of Consumer 21's outstanding debts which occurred by 7 November 2024.

1. The agreed facts in relation to the other individual consumers are contained in the Schedule to the SAFA.

6.4 Circumstances in which conduct took place in respect of, and contraventions in relation to transactions with, Consumers 1 to 24

1. The circumstances of Optus's conduct in connection with the supply of the Optus Products and Optus Services outlined above and in the Schedule occurred in circumstances where:

a. the consumer was in a substantially weaker bargaining position relative to Optus because of characteristics including, but not limited to, living in a remote community, English being a second language, having low English literacy or being unable to communicate in English, being elderly, suffering from health conditions and/or living with disability and/or being financially dependent on Government payments, as outlined in the above sections (and the Schedule) relating to each consumer;

b. prior to the time the relevant contracts were entered into, the relevant Optus Sales Staff knew or ought reasonably to have known that:

i. the consumer was a Vulnerable Consumer;

ii. in the cases of Consumers 1, 3, 4, 9, 12, 14, 17 and 21, they did not need or would not be able to use the Optus Services because there was no coverage in the area they lived;

iii. in the cases of Consumers 1, 2, 3, 4, 5, 6, 7, 11, 13, 15, 16, 18, 20, 21, 22 and 24, the consumer did not need or want any or all the Optus Products and Optus Services;

iv. in the cases of Consumers 1, 2, 5, 6, 7, 9, 10, 14, 15, 17, 18, 19 (in relation to the January 2023 Consumer 19 Contracts), 20, 21 and 24, the consumer did not understand the terms of the relevant contracts including because the Optus Sales Staff did not explain the terms to the consumer or did not explain the terms in a manner the consumer was capable of understanding; and

v. in the cases of Consumers 3, 4, 5, 6, 7, 10, 11, 12, 13, 14, 15, 17, 18, 19 (in relation to the January 2023 Consumer 19 Contracts), 20, 21, 22, 23 and 24, they could not afford the monthly or total payments under the relevant contracts given their unemployment, reliance on Government payments and/or the need for the Optus Sales Staff to undertake Credit Check Failures.

c. in the case of Consumer 6, Optus Sales Staff did not provide the consumer a copy of the contract;

d. in the cases of Consumers 2, 4, 8, 10, 15, 17, 18, 21 and 23, Optus Sales Staff entered false information in the external credit check and/or the consumer contract;

e. Optus Sales Staff exerted undue pressure and/or engaged in unfair sales tactics in inducing Consumers 1 to 24 to purchase the Optus Products and Optus Services;

f. Optus, through its senior management and/or its management (as those terms are defined in Section 4.7 above), knew or ought reasonably to have known:

i. in the cases of Consumers 3, 4, 5, 10, 11, 12, 13, 15, 17, 18, 19 (in relation to the January 2023 Consumer 19 Contracts) and 21, that Optus Sales Staff could engage in the Credit Check Failure conduct (see paragraph 140 above);

ii. in the cases of Consumers 3, 4, 5, 10, 11, 12, 13, 15, 17, 18, 19 (in relation to the January 2023 Consumer 19 Contracts) and 21, that the Optus IT Systems did not control and were ineffective to prevent Credit Check Failures at all material times prior to 24 June 2024, that no system fix had been implemented to fix gaps in the relevant IT Systems, and that there was some delay on the part of Optus between the time a system fix was identified and its implementation (see paragraph 140 above);

iii. in the cases of Consumers 7, 10, 11, 12, 13, 15, 17, 18, 19 (in relation to the January 2023 Consumer 19 Contracts), 21 and 24, that there had been:

1. numerous complaints about overselling of accessories, and the Free Accessories Misrepresentations (see paragraph 141 above); and

2. one or more whistleblower reports about overselling of accessories to consumers and the Free Accessories Misrepresentation;

iv. in the cases of Consumers 1, 6, 7, 10, 11, 12, 13, 15, 17, 18, 19, 21 and 24, that Optus had not initiated or implemented any changes to its systems, procedures or controls (see paragraph 142 above) to:

1. prevent and detect overselling of accessories to consumers who did not want or need the products or did not know they were being sold the products; or

2. provide transparency to consumers in relation to the cost of the accessories;

v. in the cases of Consumers 10, 17, 18, 19, 21 and 24, that it had maintained its commission structure (referred to in paragraphs 35 to 42 above) despite the fact that it was aware that commission structures had the potential to incentivise the overselling of accessories in a manner which could exacerbate or cause vulnerability of consumers (see paragraph 142.e) above);

vi. in the cases of Consumers 8, 10, 18 and 23, that Optus Sales Staff were able to include and had included false ABN details for consumers when entering into a contract or were able to engage in similar practices (for example, falsely classifying a consumer as a "sole trader") (see paragraph 145 above);

vii. in the cases of Consumers 9, 12, 14, 17 and 21, that there was an issue with Optus Services being sold to consumers from remote communities who lived in areas without Optus coverage and therefore would be unable to use those Optus Services where they lived (see paragraph 151 above);

viii. in the cases of Consumers 3, 4, 5, 10, 14, 17, 19 and 20 that there had been:

1. complaints from consumers relating to Optus's debt collection activities, in relation to potentially excessive debt collection activity and collection of disputed, old or settled debts, and that those activities may not have been in line with laws, good industry practice, and what was fair and reasonable in the circumstances (see paragraph 147 above); and/or

2. instances where complaints about a debt or debt collection had not been escalated by the front-line Optus staff to the correct teams within Optus in accordance with Optus's procedures, with the result that debt collection by third party agencies was not paused or suspended and continued while a complaint was pending (see paragraph 147 above); and

ix. in the cases of Consumers 5, 7, 10, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 24, that Vulnerable Consumers were subjected to a fragmented experience and being bounced around rather than having concerns addressed (see paragraph 148 above).

1. In the cases of Consumers 6, 18, 19 and 20, relevant Optus Sales Staff made the Consumer 6 POS Representations, Consumer 18 POS Representations, Consumer 19 Free Products Representation, and Consumer 20 Free Phones Representation (as those terms are defined in Section 6.1 and the Schedule), each of which were false or misleading.
2. The relevant Optus Sales Staff engaged in unfair sales tactics and/or undue sales pressure in inducing consumers to purchase the Optus Products and Optus Services under the relevant contracts in circumstances where they had the knowledge of and engaged in the conduct outlined in paragraph 294 and 295 above.
3. At the time that the Optus Sales Staff exerted the undue pressure and/or engaged in the unfair sales tactics referred to in paragraph 294 and 295 above:

a. in the cases of Consumers 1, 6, 7, 10, 11, 12, 13, 15, 17, 18, 19 (in relation to the January 2023 Consumer 19 Contracts), 21 and 24:

i. Optus had not initiated or implemented any changes to its systems, procedures or controls to:

1. prevent and detect overselling of accessories to consumers who did not want or need the products or did not know they were being sold the products;

2. provide transparency to consumers in relation to the cost of the accessories; and

ii. Optus maintained its commission structure which had the potential to incentivise the overselling of accessories; and

b. in the cases of Consumers 9, 12, 14, 17 and 21, Optus had not mandated coverage checks for mobile services despite Optus being capable of mandating coverage checks.

1. Aspects of the conduct of Optus Sales Staff in supplying the Optus Products and Optus Services to the consumers outlined in Section 6.1 and 6.2 above, and the Schedule, breached the following requirements in the TCP Code:

a. in the cases of Consumers 8, 10, 14, 16, 17, 18 and 20, to give Vulnerable Consumers the opportunity to take their time to discuss offers with others and never pressuring a vulnerable consumer to agree to anything with an awareness that actions that may seem reasonable for most consumers may distress or intimidate consumers experiencing vulnerability: TCP Code, cl 3.4.1;

b. in the cases of Consumers 2, 3, 4, 5, 6, 7, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 24, to take a responsible approach to selling, by utilising fair, transparent, responsible, and accurate sales practices, and clearly explaining key terms, conditions, and costs of products: TCP Code, cl 4.5.1(a)-(b);

c. in the cases of Consumers 1, 3, 4, 5, 6, 7, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 21, 23 and 24, to undertake a credit assessment before providing a post-paid service in circumstances where the service had a minimum term greater than one month, to explain the financial implications of the provision of that post-paid service to the consumer and to provide information about alternative products or services that may meet their needs: TCP Code, cl 6.1; and

d. in the cases of Consumers 3, 4, 10, 11, 12, 13, 15, 16, 18, 19 and 21 following a credit assessment, if staff conclude that a consumer either could not afford the items, or could only afford them "by incurring substantial hardship", to tell the consumer this and recommend more affordable products that may meet their needs: TCP Code, cl 6.1.2.

1. The conduct of the relevant Optus staff outlined in Section 6.1 and 6.2 above, and the Schedule, in handling the complaints of consumers, including where debts were pursued after the consumer had raised a complaint with Optus about the debt, breached the following requirements of the TCP Code or Complaints Standard:

a. in the cases of Consumers 1, 4, 11, 12, 14 and 15, to inform the relevant credit reporting bodies within one working day of becoming aware that a customer or former customer has been default listed in error: TCP Code, cl 6.8.6;

b. in the cases of Consumers 2, 3, 4, 5, 10, 14, 17, 19 and 20, to not take credit management action in relation to a disputed amount that was the subject of an unresolved complaint where Optus was aware that the dispute had not been resolved to the satisfaction of the consumer and was being investigated by Optus, the TIO or a relevant recognised third party: TCP Code, cl 6.9.1;

c. in the cases of Consumers 23 and 24, to provide contact information for Optus by which a complaint could be lodged: Complaints Standard, ss 7(1) and 8(1)(k);

d. in the cases of Consumers 2, 3, 4, 5, 13, 18, 22, 23 and 24, to use its best efforts to resolve a complaint on first contact: Complaints Standard, s 13(1)(a);

e. in the cases of Consumers 2, 5, 10, 18 and 23, to investigate a complaint to the extent that is commensurate with the seriousness of the complaint, where it is not possible to resolve the complaint to the satisfaction of the consumer at first instance or without an investigation: Complaints Standard, s 13(1)(c);

f. in the cases of Consumers 4, 5, 6, 9, 10, 13, 17, 18, 21 and 24, where the complaint is indicative of a broader problem or systemic issue, to seek to resolve the main cause of that problem or issue: Complaints Standard, s 13(1)(i); and

g. in the cases of Consumers 3, 4, 5 and 18, to only close a complaint with the consent of the customer or, where contact cannot be made after making five attempts on separate calendar days and writing to provide the consumer with details of the attempts: Complaints Standard, ss 13(1)(l) and 17.

300. Optus continued to seek to recover debts owed by certain consumers:

a. in the cases of Consumers 2, 6, 11 and 12, after Optus had been made aware of the consumer's circumstances, including, in the cases of Consumers 14, 17, 19, 21, by a financial counsellor contacting Optus or requesting Optus cease collections activity while they investigated the matter;

b. in the cases of Consumers 4, 11 and 12, while Optus was investigating their circumstances internally, including in the cases of Consumers 10 and 14, even after Optus had identified the consumer as one of those affected by the Darwin Suntel Investigation in circumstances where senior management knew or ought reasonably to have known of the matters in Section 4.8 above;

c. in the cases of Consumer 18 and 20, after a TIO complaint was made by or on behalf of the consumer and in the cases of Consumers 3 and 4, the TIO had directed Optus to cease debt collection activities (in circumstances where senior management knew or ought reasonably to have known of the matters in Section 4.8 above);

d. in the case of Consumer 5, even after Optus agreed to waive the consumer's debts, in circumstances where senior management knew or ought reasonably to have known of the matters in Section 4.8 above; and

e. in the cases of Consumers 15 and 19, even after Optus found that the consumer had been subject to Credit Check Failures and/or had identified that the consumer was eligible for remediation due to overselling and Credit Check Failures.

301. Optus only waived consumers' debt:

a. in the cases of Consumers 2, 5, 6, 14, 17, 22, 24, after a complaint was made to Optus or the TIO; and

b. in the cases of Consumers 14 and 18 after the consumer was identified as an affected consumer in the Darwin Suntel Investigation, in circumstances where senior management knew or ought reasonably to have known of the matters in Section 4.8 above.

6.5 Contraventions in relation to Consumers 1 to 24

1. By reason of the matters in the paragraphs above (and the Schedule), Optus's conduct in relation to each of Consumers 1 to 24, was in all the circumstances, unconscionable in contravention of s 21 of the ACL.
2. By reason of the matters in the paragraphs above (and the Schedule), Optus made false or misleading representations (being the Consumer 6 POS Representations, Consumer 18 POS Representations, Consumer 19 Free Products Representation, Consumer 20 Free Phones Representation) to Consumers 6, 18, 19 and 20 with respect to the price of goods and services, in contravention of ss 18 and 29(1)(i) of the ACL.

7 OPTUS DARWIN STORES

7.1 Background

(a) Failures to remedy known deficiencies

1. By February 2023, and despite the knowledge outlined in Section 4.8(e) above, Optus had not:

a. put in place steps such as the following (which were anticipated as part of the Optus Advocate Program):

i. Specialist Vulnerable Customers Team, which was proposed to be a team to focus on supporting and resolving consumer vulnerability issues and providing feedback on those complaints;

ii. Service Design Improvements, which was proposed to be a digital case management system to support the escalation of cases involving Vulnerable Consumers to the Specialist Vulnerable Customers Team; or

iii. Vulnerable Customer Training, which was proposed to involve the introduction of specialised training modules on dealing with Vulnerable Consumers;

b. remedied the software deficiency which enabled Optus Sales Staff to engage in Credit Check Failures;

c. put in place effective measures to prevent Optus Sales Staff from exceeding the credit limit of consumers;

d. mandated coverage checks for mobile services;

e. initiated or implemented any changes to its systems, procedures or controls to:

i. prevent and detect overselling of accessories; or

ii. provide transparency to consumers in relation to the cost of the accessories;

f. changed its commission-based structure, in circumstances where that structure had the potential to incentivise the overselling of accessories;

g. put in place proactive identification and management of Vulnerable Consumer related themes or trends; and

h. enhanced the 'Mystery Shopper' program so as to detect unconscionable sales practices in respect of Vulnerable Consumers, including First Nations consumers from remote communities.

(b) Investigation of Optus Darwin Stores

1. From February 2023 to July 2023, Optus's FRM team received a number of reports from other teams within Optus about concerns relating to the Optus Palmerston Gateway Store and Optus Casuarina Store (Optus Darwin Stores). The reports involved 18 Optus Licensee Staff (including managers) from the Optus Darwin Stores, including that they had engaged in Credit Check Failures and had exploited Vulnerable Consumers.
2. On or around 18 April 2023, Optus's FRM team commenced an investigation into allegations regarding the Optus Darwin Stores.
3. On 21 April 2023, a member of the Quality Control team identified potential Credit Check Failures conduct, and possible concerns regarding Vulnerable Consumers, at the Optus Palmerston Gateway Store.
4. On 23 June 2023, a member of the Quality Control team identified potential Credit Check Failures conduct, and possible concerns regarding Vulnerable Consumers, at the Optus Casuarina Store. It was noted that the conduct had similar behaviours to the conduct at the Optus Palmerston Gateway Store.
5. On 24 July 2023, Optus's management received a preliminary assessment report (Darwin PAR) from Optus's FRM team in respect of the Optus Darwin Stores. The cover email stated that there was evidence of Credit Check Failures conduct, unconscionable sales practices, and the exploitation of Vulnerable Consumers.

310. The initial findings in the Darwin PAR were that:

a. 17 Optus Licensee Staff members had engaged in unconscionable conduct at the Optus Darwin Stores by selling multiple services and devices to consumers who did not have Optus coverage;

b. since January 2022, Optus Licensee Staff, including managers, at both of the Optus Darwin Stores had provisioned services and devices for 24 consumers who did not have Optus coverage at their home address, 45 of the service numbers provisioned had no usage, and all of the accounts were in arrears and no payments had been made by the consumer;

c. the number of employees involved indicated a systemic issue of exploiting Vulnerable Consumers, as almost all the Vulnerable Consumers identified appeared to be First Nations Australians; and

d. Optus Licensee Staff had entered false information into credit checks in order to circumvent credit restrictions; and

e. in order to produce a final investigation report (referred to in paragraph 322 below), additional inquiries were proposed, including formal interviews of Optus Licensee Staff at the Optus Darwin Stores.

1. The issues described in the Darwin PAR were reported to the then CEO and the CFO of Optus in August 2023 and November 2023 and to the Optus Fraud Committee on 7 August 2023 and 30 October 2023.
2. On 2 August 2023, Optus established a working group to manage Optus's response to the conduct identified at the Optus Darwin Stores. The working group:

a. undertook a proactive review of the previous two years of sales at the Optus Darwin Stores in order to identify potentially impacted consumers that should be remediated - the details of that review and the consumers remediated are outlined in paragraphs 323 to 327 below;

b. implemented a process to ensure that all new credit applications originating from the Darwin Stores were automatically referred to Optus's Group Credit Risk team (as it was then named) for a manual credit assessment;

c. in August 2023, sent a communication to Optus Stores (both Optus Operated Stores and Optus Licensee Stores) that required all Optus Sales Staff to complete a declaration, which included confirmation that they would only offer products and services in line with credit limits and that they must perform mobile coverage checks before offering solutions. By late August 2023, 95% of Optus Sales Staff had completed the declaration; and

d. in September 2023, started generating reports to identify instances of Credit Check Failures.

1. On 9 August 2023, the TIO sent a letter to Optus advising it had identified a possible systemic issue relating to potential sales misconduct in the Optus Darwin Stores involving consumers from First Nations communities and/or consumers with vulnerabilities. The letter requested that Optus advise the TIO whether Optus was investigating the Optus Darwin Stores in relation to this issue.
2. On 11 August 2023, in an email from the Associate Director of FRM to other Optus staff, including Optus management, it was identified that that for the period 19 July 2021 to 31 May 2023:

a. 57 consumers were sold services even though they did not have Optus coverage at their home address; and

b. for the 57 consumers:

i. 146 services were provisioned, of which 102 had no usage at all and 44 had minimal usage; and

ii. 115 handsets were provisioned, of which 76 had no usage at all and 39 had minimal usage.

1. Whilst the email referred to "57 consumers", it was in fact 57 unique customer identification numbers (57 Consumer Accounts).
2. Between 25 July 2023 and 14 September 2023 employees of the Optus Darwin Stores were interviewed by Optus staff in the FRM team.
3. On 21 September 2023, a draft version of the final investigation report in respect of the Optus Darwin Stores was sent to the Associate Director of FRM his approval. The draft report stated that Optus Licensee Staff (including and managers) had, relevantly:

a. sold services to First Nations consumers who did not have Optus coverage;

b. engaged in credit manipulation to provide the consumers with more services and devices than they could afford to pay for; and

c. oversold accessories to consumers.

1. On 22 September 2023, Optus responded to the TIO's letter about the Optus Darwin Stores noting that its investigation to date:

a. found that Optus "first became aware of potential issues regarding staff misconduct" at the Optus Darwin Stores in April 2023;

b. had not found evidence suggesting that the conduct was targeted or directed towards any specific cohort of consumers, including consumers from First Nations communities or Vulnerable Consumers;

c. had identified potential misconduct by some sales agents who had circumvented Optus's processes and policy, including its credit assessment; and

d. had identified one additional consumer who had purchased Optus Products or Optus Services, and did not have Optus coverage at their residential address, and had not used the service.

319. Optus's communications to the TIO did not disclose the following matters:

a. that concerns about Credit Check Failures and fraudulent credits were referred to the FRM team by Group Credit Risk (as it was then named) on 21 February 2023;

b. the finding in the Darwin PAR that there appeared to be a systemic issue of exploiting Vulnerable Consumers as almost all consumers appeared to be First Nations Australians;

c. the Darwin PAR findings that 24 consumers who did not have Optus coverage at their home address had been provisioned services and devices, with 45 of the service numbers not used, and with the consumers' accounts in arrears and that no payment had been made by the consumers; and

d. the findings that the 57 Consumer Accounts were sold services and devices even though the relevant consumers did not have Optus coverage at their home address and almost all of the services and devices provisioned had no usage.

1. On 6 October 2023, a further draft version of the final investigation report was sent to the relevant manager within FRM for his approval.
2. On 2 February 2024, Optus prepared a FIR (Darwin FIR) in respect of the investigation into the Optus Darwin Stores.
3. The Darwin FIR was finalised on 12 February 2024, and included the following findings:

a. coverage was not being checked as a regular practice, despite Optus Licensee Staff confirming that they knew that the Northern Territory did not have sound coverage in all areas and that it is crucial to conduct coverage checks before selling products;

b. 57 Consumer Accounts had been sold Optus Products and Services even though they did not have Optus coverage at their home address, with many of those appearing to be First Nations consumers residing in remote communities in the Northern Territory. During this period attempts were made to provision services and devices for a further 30 consumers who did not have Optus coverage, which were not successful as the consumers did not pass credit checks. A total of 21 Optus Licensee Staff (including managers) were involved in this conduct;

c. Credit Check Failures were common, with the Optus Licensee store managers, the Optus Licensee assistant store managers and other Optus Licensee Staff all using different methods to circumvent credit restrictions;

d. 46 consumer accounts had been subject to Credit Check Failures between 18 February 2022 and 14 July 2023;

e. a total of 24 Optus Licensee Staff, including the store managers, engaged in the conduct. This was almost all staff at the Optus Darwin Stores;

f. as a result, some consumers were sold more than they could afford to pay for (and in most cases, their accounts being in arrears);

g. Optus Licensee Staff (including managers) had been involved in overselling accessories to consumers including Vulnerable Consumers who could not afford to pay for the accessories, and that many of the consumers had multiple contract arrangements involving multiples of the same accessory; and

h. there were no corrective controls to prevent manipulation of the CCS or to require coverage checks to occur as part of processing orders, which could identify and stop the conduct.

1. From August 2023, Optus reviewed the sales of Optus Licensee Staff at the Optus Darwin Stores during the period June 2021 to June 2023 in order to identify consumer accounts potentially impacted by sales misconduct for remediation (Remediation Review). A total of 363 consumer accounts were identified and those consumers fell within the following categories:

a. Consumers affected by the Coverage Check Conduct. A total of 1 consumer account fell within this category as outlined below at 342.

b. Consumers who may have not their identities verified in accordance with Optus's policies, and, as a result, Optus could not rule out the possibility that the consumer was unaware of the creation of the relevant account. A total of 34 consumer accounts fell within this category.

c. Consumers affected by Credit Check Failures. A total of 216 consumer accounts fell within these categories as outlined below at 331.

d. Consumers affected by the sale of accessories or devices above the recommended retail price (RRP). A total of 88 consumer accounts fell within this category as outlined below at 335.a).

e. Consumers who fell within two or more of the above categories. A total of 24 consumer accounts fell within this category.

1. Consumers 10, 13, 18, 19, 21, to which reference is made in Section 6 above (and the Schedule), were also part of the Remediation Review.
2. Some of the consumers identified as affected by the conduct set out in the Darwin FIR are additional to the 363 consumer accounts referred to in the Remediation Review.
3. On 7 February 2024, the Director of Complex Care and Vulnerable Customers, identified that a total of 564 consumers had been identified as impacted or potentially impacted by the sales conduct identified in the Darwin FIR, to the value of $649,858.84.
4. As at 25 October 2024, Optus had identified that a total of 70 consumer accounts were sold Optus Services without coverage at their residential addresses at the Darwin Stores from 13 June 2021 to 12 June 2023 and of those 70 consumer accounts, 6 consumer accounts had not used any of the Optus Services sold to them.

1. In the two-year period ending in around July 2023, Optus Licensee Staff engaged in Credit Check Failures at the Optus Darwin Stores which enabled them to sell the consumer more products and services at a higher credit approval amount and/or in excess of the consumer's credit limit.
2. A feature of Optus's CRM system was to enable large business consumers to place multiple orders, and to allow consumers to place new orders when a previous order was taking time to complete. The Credit Check Failures conduct improperly exploited this feature.
3. The Darwin FIR identified 46 consumer accounts that were impacted by Credit Check Failures.
4. The Remediation Review identified that a total of 216 consumer accounts were impacted by Credit Check Failures. Of the 216 consumer accounts:

a. 14 consumer accounts were considered "bad intent to pay", had their services cancelled and were subject to debt collection activities;

b. 32 consumer accounts had made some payments, had no "bad intent to pay", had their services cancelled and were subject to debt collection activities (with some possibly having their debts sold); and

c. 170 consumer accounts had no outstanding payments as at the date of Optus's assessment and were not subject to debt collection activities.

332. Many of the 46 consumers pleaded at paragraphs 331.a) and 331.b):

a. were First Nations consumers;

b. lived in remote communities; and/or

c. were vulnerable by reason of English not being their first language, having comprehension difficulties, living with a mental or physical disability, being from a remote community, being financially dependent and indigent and/or being elderly.

1. A consequence of the Credit Check Failures was that the consumers were provided with services and devices that they did not need, could not use and/or could not afford and some consumers were subjected to debt collection activities. This consequence was foreseeable to the Optus Licensee Staff.
2. The Credit Check Failures Conduct at the Optus Darwin Stores occurred in circumstances where, as outlined at paragraph 140 above:

a. from at least December 2019, Optus, including through its senior management, knew or ought reasonably to have known that Optus Sales Staff could engage, and had engaged, in the Credit Check Failure conduct; and

b. at all material times until at least 24 June 2024, the Optus IT Systems did not control and were ineffective to prevent Credit Check Failures, no system fix had been implemented to fix gaps in the relevant IT Systems, and that there was some delay on the part of Optus between the time a system fix was identified and its implementation.

(b) Accessories Conduct

1. Between 13 June 2021 and 12 June 2023, Optus Licensee Staff engaged in two types of accessories mis-selling conduct:

a. The manual increase of sales prices for accessories and/or devices by at least $10 above the RRP. The Remediation Review identified that 88 consumers were affected by this conduct where the amounts charged to consumers in excess of the RRP ranged between $15 and $850. At least 20 consumers were sold accessories at prices at least $100 above the RRP, in circumstances where consumers would have been able to acquire identical or equivalent accessories from other suppliers at the RRP.

b. The excessive selling of accessories to consumers. The Darwin FIR identified that 3 consumers were affected by this conduct,

(together, the Darwin Accessories Conduct).

336. Some of the consumers impacted by the Darwin Accessories Conduct:

a. were First Nations consumers;

b. lived in remote communities; and/or

c. were vulnerable by reason of English not being their first language, having comprehension difficulties, being from a remote community, being financially dependent and indigent and/or being elderly.

1. A consequence of the Darwin Accessories Conduct was that the consumers were provided with services and devices that they did not need, could not use and/or could not afford. This consequence was foreseeable to the Optus Licensee Staff.
2. The Darwin Accessories Conduct occurred in circumstances where as outlined at paragraphs 141 to 142 above:

a. From at least January 2021, Optus, including through its senior management, knew or ought reasonably to have known that there were numerous complaints alleging that Optus Sales Staff were overselling accessories to consumers and making Free Accessories Misrepresentations.

b. Despite the matters referred to in sub-paragraph (a), at all material times after January 2021, Optus:

i. failed to have adequate and effective procedures and controls to prevent and detect all instances of overselling of accessories to consumers who did not want or need the products or did not know they were being sold the products;

ii. did not itemise accessories on consumer contracts or list the total cost of accessories over the contract term;

iii. until at least 31 January 2024, did not have procedures or controls in place that prevented Optus Licensee Stores from selling accessories above the RRP or the maximum price specified by Optus for those accessories, unlike for other products or services;

iv. until at least 1 August 2024, did not have procedures or controls in place that prevented Optus Licensee Stores from setting their own or changing Optus's RRP for accessories, or selling accessories above the RRP specified by Optus for those accessories; and

v. maintained its commission structure (referred to in paragraphs 35 to 42 above) which, from at least 17 June 2022, Optus knew or ought reasonably to have known such commission structures had the potential to incentivise the overselling of accessories in a manner which could exacerbate or cause vulnerability of consumers.

(c) Coverage Check Conduct

1. Between 19 July 2021 and 31 May 2023, Optus Licensee Staff engaged in the Coverage Check Conduct, which involved a failure to conduct coverage checks to ascertain whether Optus provided coverage at the home address of the consumers or potential consumers.
2. All Optus Licensee Staff were aware that the Northern Territory did not have sound coverage in all areas and that it was crucial to conduct coverage checks before selling products.
3. The Coverage Check Conduct affected a number of consumers who were sold services at the Optus Darwin Stores between July 2021 to May 2023. The majority of the impacted consumers fell into default.
4. The Remediation Review identified that there were 70 consumer accounts that were sold services without Optus coverage at their home address, and these 70 consumer accounts included the 57 Consumer Accounts. Yet the Remediation Review identified that only 1 consumer account in total was: (a) affected by this conduct; and (b) had no usage (call, SMS, data usage) on any one of the services on their account. It was later identified by Optus in October 2024, that there were in fact 6 consumer accounts which were affected and also had no usage.
5. All, or almost all, of the 57 Consumers Accounts (consumers who were identified by Optus in August 2023 as being without coverage at their residential address):

a. were First Nations consumers;

b. lived in remote communities; and/or

c. were vulnerable by reason of living with a physical or mental disability, English not being their first language, having comprehension difficulties, being from a remote community, being financially dependent and indigent and/or being elderly.

344. The majority of the 57 Consumer Accounts fell into default.

1. A consequence of the Coverage Check Conduct was that the consumers were provided with services and devices that they could not use. This consequence was foreseeable to the Optus Licensee Staff.
2. The Coverage Check Conduct at the Optus Darwin Stores occurred in circumstances where as outlined in paragraph 151 to 152 above:

a. From at least October 2021, Optus, including through its senior management, knew, or ought reasonably to have known that there was an issue with, and example of, Optus Sales Staff selling Optus Services to consumers from remote communities who lived in areas without Optus coverage and therefore would be unable to use those Optus Services where they lived.

b. Despite the matters referred to in sub-paragraph (a):

i. it was not until November 2023 that Optus updated its CCT forms (see paragraph 361 below) to include coverage checks in the checklist (although the sale can still be made without completing the CCT); and

ii. although coverage checks were mandatory for home internet connections, Optus did not mandate coverage checks for mobile services.

(d) Darwin Inappropriate Selling Conduct

1. Almost all of the Optus Licensee Staff employed at the Optus Darwin Stores, including the store managers and assistant store managers, engaged in one or more of:

a. the Darwin Accessories Conduct;

b. Credit Check Failures; and

c. Coverage Check Conduct,

(collectively, the Darwin Inappropriate Selling Conduct).

348. The Darwin Inappropriate Selling Conduct occurred in situations where:

a. the Optus Licensee Staff, including the store managers and assistant store managers taught and/or directed the junior Optus Licensee Staff to engage in the Darwin Inappropriate Selling Conduct;

b. the Darwin Inappropriate Selling Conduct was pervasive at the Optus Darwin Stores; and

c. the consequences of the Darwin Inappropriate Selling Conduct were foreseeable to the Optus Licensee Staff.

1. Prior to or around the time that Optus Sales Staff engaged in the Darwin Inappropriate Selling Conduct, Optus, including through its senior management, had knowledge of the issues relating to Credit Check Failures (see paragraph 140 above), the sale of accessories (see paragraph 141 above) and coverage checks (see paragraph 151 above).
2. Some of the consumers impacted by the Darwin Inappropriate Selling Conduct were First Nations consumers, lived in remote communities, and/or were experiencing vulnerability or disadvantage by reason of:

a. English not being their first language;

b. having comprehension difficulties;

c. living with a mental or physical disability;

d. being from a remote community;

e. being unemployed and/or being financially dependent and indigent; and/or

f. being elderly.

1. Optus Sales Staff did not comply with the following requirements of the TCP Code when engaging in the Darwin Inappropriate Selling Conduct:

a. the requirement in cl 4.5.1(a)-(b) to take a reasonable approach to selling, by utilising fair, transparent, responsible, and accurate sales practices, and clearly explaining terms, conditions, and costs of products;

b. the requirement in cl 6.1 to undertake a credit assessment before providing a post-paid service in circumstances where the service had a minimum term greater than one month, to explain the financial implications of the provision of that post-paid service to the consumer and to provide information about alternative products or services that may meet their needs; and

c. the requirement in cl 6.1.2 that following a credit assessment, if staff conclude that a customer either could not afford the items, or could only afford them "by incurring substantial hardship", to tell the consumer this and recommend more affordable products that may meet their needs.

7.3 Contraventions in relation to the Optus Darwin Stores

1. By reason of the matters referred to in Sections 7.1 and 7.2 above, the Darwin Inappropriate Selling Conduct involved many contraventions of s 21(1) of the ACL occurring as part of a pattern of behaviour of unconscionable conduct.
2. APOLOGY, STEPS TO PREVENT OCCURRENCE AND OTHER ACTIONS TAKEN BY OPTUS

1. Optus has cooperated with the ACCC during the course of its investigation and has admitted to the contravening conduct.

1. On 31 October 2024, Optus's Interim CEO published (on Optus's website) an apology to the Affected Consumers, which included that Optus:

a. sincerely apologises to all consumers affected by the misconduct and for the distress caused;

b. deeply regrets that it failed to meet consumer service standards that its consumers deserve;

c. has undertaken a major review of how it manages sales, especially to Vulnerable Consumers, to help prevent misconduct in sales to Vulnerable Consumers; and

d. is in the process of appointing a consumer advocate in a new role to work alongside its partners, community groups, financial counsellors and consumer teams to focus on improving its support for consumers in need.

1. Optus has also sent an apology by email and letter to each of the Affected Consumers (other than two of the Affected Consumers who are deceased). In addition to the matters outlined above, this apology stated that Optus:

a. had commenced a complete review of all cases in which it believes consumers may have been subject to inappropriate sales practices; and

b. had taken a range of steps to remediate any consumers who were impacted by the misconduct but was undertaking a further review to ensure it has fully addressed any impact caused.

8.3 Remediation

356. Optus has undertaken the following steps in relation to the Affected Consumers:

a. applying credits to the consumer's account(s);

b. ceasing debt collection activities in relation to the account;

c. repurchasing debts from third party factoring agencies;

d. removing any default listings; and

e. allowing the consumer to keep any mobile devices or accessories purchased in connection with the services.

1. In addition, Optus has determined that some of the Affected Consumers should be paid an amount to reflect a refund of amounts paid by the consumer (plus interest) and/or an additional ex gratia payment in light of the individual consumer's experience. Optus has taken steps to contact all Affected Consumers who were determined to be eligible for the payment and where it has been successful in making that contact, the payment has been made to those Affected Consumers.

8.4 Steps taken to prevent mis-selling to Vulnerable Consumers

1. Since 2021, Optus has progressively implemented a series of improvements to its systems and processes to prevent, or more quickly detect, mis-selling to Vulnerable Consumers.
2. In relation to Credit Check Failures, Optus has implemented the following improvements:

a. On 24 June 2024, Optus implemented a system change designed to minimise instances of Optus Sales Staff from changing the contact details on a retail consumer account in Optus's CRM after the conduct of a credit check, while an order is still being processed.

b. On 24 June 2024, Optus implemented a system change in its CRM designed to minimise instances of Optus Sales Staff from (in addition to the initial order), submitting one or more additional orders for the same account after a credit assessment has been performed on an existing open order for the purpose of increasing the value approved.

c. On 24 October 2024, Optus implemented a system change designed to prevent Optus Sales Staff from adding new products or services to Inflight Orders which caused the order to exceed the value approved at the time of the credit check.

360. In relation to sale of accessories, Optus has implemented the following improvements:

a. In September 2021, Optus updated its 'TCP Code Best Practices' training module to state that the words "free", "gift" or "bonus" should not be used when selling accessories.

b. In May 2023, Optus implemented the 'Best Practice S.C.O.R.E. Framework', which is a sales tool used by Optus Sales Staff when selling accessories to consumers. The framework requires Optus Sales Staff to educate consumers on accessories payment terms and methods. This includes the use of a 'POT (Payment over Time) pocket card' to explain to consumers the amounts they will have to pay for accessories depending on the payment plan chosen.

c. In July 2023, Optus implemented a process that requires, in relation to accessory sales, a Vision Card to be generated. The Vision Card, when generated, automatically lists things that the Optus Sales Staff "must mention" to the consumer when processing sales of accessories.

d. On 31 January 2024, Optus removed the function in its billing system which allowed Optus Sales Staff to sell accessories (or devices) above the RRP set by Optus.

e. On 1 August 2024, Optus made changes to its systems to prevent Optus Licensee Stores from setting their own RRP on accessories or devices.

f. In December 2024, Optus updated its contract and billing processes such that a full breakdown of the accessories purchased (product description and number of repayments) is included on consumer contracts and invoices.

361. In relation to coverage checks:

a. Optus has implemented the following improvements:

i. in November 2023, Optus introduced monthly reporting on whether Optus Sales Staff had conducted coverage checks or shown the consumer a coverage map at the point of sale, based on data obtained through the mystery shopper program;

ii. in November 2023, a "coverage check" item was added to the checklist in the CCT forms; and

iii. in June 2024, Optus rolled out an updated platform to all Optus Sales Staff providing mobile network coverage information including 3G, 4G and 5G.

b. Optus is in the process of implementing the following improvements:

i. in September 2024, Optus commenced a process of system changes to ensure coverage checks are performed at the point of sale and the results provided to consumers and for monitoring compliance with coverage checks. This process will be carried out in stages and is scheduled to be completed in August 2025.

362. In relation to debt collection activities:

a. Optus has implemented the following improvements:

i. in June 2024, Optus expanded the list of consumers excluded from early stage debt sales to third parties to include consumers who have been managed as financial hardship cases in the last six months. In January 2025, Optus expanded the list of consumers excluded from late stage debt sales to third parties to include consumers who have been managed as financial hardship cases in the last six months; and

ii. since October 2024, if an FRM investigation has commenced in relation to potential sales misconduct involving a consumer, the FRM team must notify the Billing and Credit, Collections team who will then make a decision in relation to that consumer regarding debt collection, which may include the application of a manual pause on debt collection.

b. Optus is in the process of implementing the following improvements:

i. a formalised process will be implemented and embedded so that debt collection will be paused from the commencement of an FRM investigation into potential sales misconduct. Optus will seek to automate this process as much as possible; and

ii. Optus is also reviewing the existing debt collection pause process which occurs when a consumer complaint has been received by CRT and the consumer has been identified as a Vulnerable Consumer. Optus will seek to improve the current process such that it is robust and effective, and will also seek to automate this process as much as possible.

1. In relation to overselling or mis-selling generally, Optus has implemented the following improvements:

a. CCT forms: As outlined in paragraph 65 above, in May 2021 Optus introduced CCT forms for Optus Sales Staff to complete with each sales transaction. Optus Sales Staff are expected to discuss the CCT form with the store manager or assistant manager before the conclusion of a sale, with the manager to check the form to ensure that the Optus Sales Staff has followed the correct sales process, asked the correct questions, offered suitable products/services to the consumer and complied with key compliance metrics during the sale; and

b. Vision Cards: In June 2023, the Vision Card process was enhanced to enable certain notes to be automatically generated based on the selections made within the Vision Cards platform and for these notes to be copied by Optus Sales Staff into the consumer's account notes.

1. In relation to the detection of mis-selling, Optus has implemented the following improvements:

a. Store Assurance Program: In January 2022, Optus's Quality Control team implemented the "Store (Site) Assurance Program" for Optus Stores where it (along with the Business Operations Support team) visits approximately 20 Optus Stores each month to assess the stores against risk-based categories, including sales compliance. In 2024, the program was updated to outline the key areas of focus during the store inspections, which included Vulnerable Consumers. For example, one of the 'core questions' to Optus Sales Staff as part of the site visit was "[h]ow would you describe a possible vulnerable customer".

b. Mystery Shopper Program: In May 2023, Optus engaged an external vendor to enable more frequent (monthly) mystery shopping visits at regional and remote locations and, further, the program was updated to add components relating to compliance and Vulnerable Consumers. In May 2024, a financial hardship scenario was included in mystery shopping visits conducted that month. The financial hardship scenario was included again in the February 2025 mystery shopping visits.

c. Sales Compliance Standards: In May 2024, Optus launched a new Sales Compliance Standard handbook for Optus Stores. These handbooks specify the minimum expectations for Optus Sales Staff, including the conduct of serviceability and coverage checks, compliance with credit check processes, and Vision Card usage.

d. Monitoring and Reporting:

i. since January 2022, Optus's Quality Control team has issued weekly and monthly metric reports which provide an indication of possible non-compliance in Optus Stores. The types of metrics covered in the reports include Credit Check Failures, Vision Card usage, multi factor authentication (MFA) override and failures to obtain signatures on contracts;

ii. since 14 February 2022, Optus's Group Credit Risk team (now Billing and Credit, Collections team) has issued a weekly report identifying instances where core Group Credit Risk processes and functions are outside the accepted tolerance levels. This reporting seeks to the identify non-compliance with Optus policies such as the ID and Activation Policy and Consolidated Credit Management Policy - this includes potential non-compliance with Optus's credit assessment and debt collection policies;

iii. in April 2024, Optus launched a 'Risk Decisioning Model / Compliance Preventative Analytics' for Optus Stores. This is a tool that collates Key Risk Indicators (KRIs) with the aim of identifying anomalous or outlier orders/transactions, agents and stores which may indicate a heightened risk profile, possible internal process or policy breach behaviours, and internal fraud; and

iv. on 6 August 2024, Optus implemented a process for the Optus Advocate team and CRT to raise suspected non-compliant sales with Quality Control to ensure all non-compliant sales are reviewed and documented in the "Quality Control non-compliance register", and that appropriate remediation activities take place.

1. In relation to the handling of Vulnerable Consumers, in April 2022, Optus established its Advocate Program, which is a consumer-wide program to review, develop and implement initiatives and strategies to better support Vulnerable Consumers. Some key elements of the Advocate Program that have been implemented to date include:

a. Specialist Care team: In November 2023, Optus launched a dedicated, trauma-trained, onshore Specialist Care team within CRT to support Vulnerable Consumers. Where the frontline team identifies a consumer as experiencing vulnerability, they refer the consumer to the Specialist Care team which provides specialist case management support to those consumers, included extended hours.

b. Optus Customer Advocate team: In March 2024, Optus established the Optus Customer Advocate team. This team is comprised of a committee of experts within Optus who independently review escalated complaints and oversee consumer remediation. They also identify, report and escalate potentially systemic issues or trends, and are responsible for overseeing and approving changes to existing processes and implementing new processes that may impact vulnerable consumer support.

c. Vulnerable Customer Policy: On 30 October 2023, Optus implemented the Vulnerable Customer Policy, which outlines Optus's commitment to identifying, supporting, and interacting with Vulnerable Consumers and serves as a framework to ensure that Vulnerable Consumers receive appropriate care, protection, and consideration when engaging with our products, services, or people.

d. Vulnerable Customer Policy training module: The associated Vulnerable Customer Policy training module provides an introduction to the Vulnerable Customer Policy and trains staff on the recognition of different types of Vulnerable Consumers, understanding the role of the Specialist Care team, and how to effectively communicate with Vulnerable Consumers. The module has been mandatory for Optus Sales Staff since December 2023.

e. Other Vulnerable Customer training: Between February 2024 and September 2024, Optus launched various additional mandatory training modules relating to the handling of Vulnerable Consumers. For example, the 'Conscious Selling to First Nations Customers' module provides training to staff on understanding and making ethical decisions when assisting First Nations consumers, ensuring inclusive and respectful service. As of 19 April 2024, 93.3% of retail staff and 95% of contact centre staff had completed this training.

f. Engagement with external stakeholders: Since 2023, Optus has strengthened its engagement with other external stakeholders (for example, Financial Counsellors Australia and Thriving Communities Australia) in order to enhance Vulnerable Consumers' interests. Since February 2023, Optus has attended a regular forum with Financial Counsellors Australia where issues relating to Vulnerable Consumers are discussed.

g. Additional Needs Flag: On 19 July 2024, Optus introduced an "Additional Needs Flag", also known as the "Advocate Persistent Flag", in Optus's CRM. This enables the Specialist Care team (with the consumer's consent) to indicate on an account that the consumer requires heightened support when engaging with Optus. If this flag is applied, any frontline staff member handling the account should prioritise the consumer to ensure that they are provided with timely and appropriate assistance, taking into account their special needs in line with the 'vulnerable customer matrix'.

366. In relation to its commission structure:

a. Optus has implemented the following improvements:

i. in March 2021 (for Optus Licensee Stores) and July 2021 (for Optus Operated Stores), Optus made changes to the commissions structure to enhance consumer-centric, service driven and digital adoption components for earning commissions. These changes included an accelerator on commissions to incentivise the provision of excellent consumer experiences. In December 2024, this accelerator was changed to a threshold;

ii. from 1 December 2024, Optus introduced Quality Control scorecard thresholds for Optus Store Staff (at Optus Operated Stores) to be eligible for commissions. The metrics include training completion, MFA and Vision Card adoption; and

iii. from 1 February 2025, Optus made changes to the commission model for branded Optus Licensee Stores by replacing the "Digital Adoption Accelerator" with a "Quality and Compliance Accelerator", which is based on the store's Quality Control retail scorecard (which reflects the store's compliance with the same key metrics as outlined above at ii).

b. Optus is scheduled to make further changes to the commission structure from 1 July 2025.

8.5 Other Actions

1. In addition to the steps outlined above, Optus is currently establishing a Sales Misconduct Transformation Program, which is a CEO initiated program of cultural and structural change which should, at its core, protect consumers from the risk of mis-selling and ensure Vulnerable Consumers are treated fairly.
2. Some key changes which Optus is considering as part of this program are outlined below:

a. People & Organisation: Optus proposes to undertake a review of its leadership structure, with a view to creating a new model to enhance accountability for consumer protection across the business. This will ensure recruitment, capability, leadership, performance management and disciplinary practices are aligned to clear appropriate selling standards and expectations.

b. Licensee Store Buy Back: Optus has identified 34 Optus Licensee Stores for buy back, focussed on Licensee Stores where mis-selling issues have arisen, with completion targeted for August 2025.

c. Technology & Data: Optus has identified an initial prioritised list of technology improvements designed to prevent mis-selling and improve hardship detection.

Date: 13 June 2025

................................

James Docherty

AGS Lawyer

For and on behalf of the Australian Government Solicitor

Lawyer for the Applicant

................................

Christine Wong

Partner

Herbert Smith Freehills Kramer

Lawyer for the Respondent

SCHEDULE TO THE STATEMENT OF AGREED FACTS AND ADMISSIONS

This Schedule relates to Consumers 1 to 18, 20 and 22 to 24.

1.1 Consumer 1

1. Consumer 1 is a First Nations woman. Consumer 1's first language is not English.

1. At all material times Consumer 1 lived in a remote First Nations community in the NT, which had no Optus coverage (for phone or internet services).
2. On 8 January 2019, Optus Sales Staff approached Consumer 1 outside of the Optus Palmerston Gateway Store and pressured her to enter the Optus Palmerston Gateway Store. Consumer 1 had no intention of purchasing Optus Products or Optus Services.
3. At the time, Consumer 1 had a mobile phone contract with Telstra and did not want or need a new phone.

5. During her visit to the Optus Palmerston Gateway Store on 8 January 2019:

a. Consumer 1 thought Optus Sales Staff were offering her a free phone and other free Optus Products and Optus Services;

b. Consumer 1 felt pressured by Optus Sales Staff to accept the Optus Products and Optus Services offered to her;

c. Consumer 1 provided her name, age, contact details and residential address;

d. Consumer 1 thought she could use the phone at her residential address;

e. Optus Sales Staff submitted external credit checks in relation to Consumer 1 that stated Consumer 1's occupation was "Professional" and that her Employment Status was "Full Time"; and

f. Optus Sales Staff told Consumer 1 to attend the Optus Palmerston Gateway Store the following day. Consumer 1 thought this was in order to obtain other items for free.

1. On 8 January 2019, Optus Sales Staff at the Optus Palmerston Gateway Store sold Consumer 1 two phones, three phone plans, two Device Protect services and one accessories bundle under one contract (first Consumer 1 Contract). This contract had:

a. a monthly fee of $198.00;

b. a total minimum cost of $3,808.00; and

c. a total cost of $4,452.00 if the contract continued for a 24-month term (and one of the phone plans was cancelled at the end of its 12-month term).

1. On 9 January 2019, Optus Sales Staff at the Optus Palmerston Gateway Store sold Consumer 1 one phone plan and one accessories bundle under a second contract (second Consumer 1 Contract). This contract had:

a. a monthly fee of $35.00;

b. a total minimum cost of $540.00; and

c. a total cost of $540.00 if the contract continued for a 24-month term (and the phone plan was cancelled at the end of 12 months).

1. During that visit, Optus Sales Staff submitted a further credit check which had false information about Consumer 1's occupation and her employment status, stating that Consumer 1's occupation was "Administration" and that her employment status was "Casual/Seasonal".
2. At no point prior to Consumer 1 entering into the first Consumer 1 Contract and second Consumer 1 Contract (together, Consumer 1 Contracts), did Optus Sales Staff:

a. inform Consumer 1 that there was no Optus coverage at her residential address; and/or

b. explain the terms of the Consumer 1 Contracts to Consumer 1.

1. Prior to or around the time that Consumer 1 entered into the Consumer 1 Contracts in January 2019, Optus Sales Staff:

a. did not conduct a coverage check for where Consumer 1 lived, or ignored the coverage check in selling the Optus Products and Optus Services; and

b. conducted three credit checks in relation to the Consumer 1 Contracts, with two on 8 January 2019 and one on 9 January 2019.

11. After entering into the Consumer 1 Contracts:

a. between the period 9 January 2019 and 7 February 2019, Consumer 1 used data and/or phone call services provided by one or more of the mobile plans that Consumer 1 had purchased under the Consumer 1 Contracts, while in certain parts of the NT;

b. after 8 February 2019, Consumer 1 did not use any data or phone call services provided by the mobile phone plans that she had purchased under the Consumer 1 Contracts because she returned to the remote First Nations community in the NT where she resides and the Optus Services stopped working due to lack of coverage; and

c. on 13 February 2019, Consumer 1 was issued with a bill by Optus for the amount of $415.19.

1. In or around April or May 2019, Optus cancelled the Consumer 1 Contracts due to non-payment of bills. At the time of cancellation, Consumer 1 had accrued a debt of $2,570.34.
2. On or around 8 April 2019, Optus sent a letter to Consumer 1 which stated that an amount of $618.19 was overdue, and that Optus would disconnect any services in respect of that account after five working days.
3. On 25 May 2019, Optus sent a letter to Consumer 1 which stated that an amount of $2,570.34 was overdue, and that if the amount remained unpaid, Optus would refer this account to debt collection and that a default may be listed by Optus against Consumer 1's credit file.
4. Between June 2019 and February 2020, Optus issued Consumer 1 with further bills in respect of the Consumer 1 Contracts.
5. On 25 July 2019, Optus referred a debt of $2,380.34 under Consumer 1's name to a debt collection agency.

17. On 1 July 2020, Optus sold Consumer 1's debt of $2,570.34 to a factoring agency.

1. On or around 5 September 2020, the factoring agency sent Consumer 1 a debt collection notice, stating that the amount of $2,570.34 was due in full immediately.
2. Between 5 September 2020 and 25 October 2023, the factoring agency sent Consumer 1 at least 44 emails, 84 text messages and eight letters, and attempted to call Consumer 1 52 times.
3. On 27 February 2023, a default was listed under Consumer 1's name with a credit reporting body.
4. On 22 May 2023, the factoring agency sent Consumer 1 a letter advising that if the amount of $2,370.34 was not paid within seven days, it would refer her account to the State-based Civil and Administrative Tribunal.
5. On or around 10 October 2023, Consumer 1 contacted a financial counsellor for assistance. Consumer 1 told the financial counsellor that she had been receiving calls from a debt collector but did not fully understand the calls and was unsure what the debt related to.
6. On or around 25 October 2023, the financial counsellor sent an email to the factoring agency requesting information in relation to Consumer 1. On or around 27 October 2023, the financial counsellor was advised by the factoring agency over the phone that Optus had sold Consumer 1's debt to them in April 2019, with the current amount being $2,370.34.
7. On 6 December 2023, the financial counsellor emailed Optus on behalf of Consumer 1 regarding the Consumer 1 Contracts and subsequent on-selling of Consumer 1's debt, explaining that Consumer 1 was a vulnerable First Nations woman living in a remote community in NT, which does not have Optus coverage, who had been coaxed and pressured into entering the Consumer 1 Contracts that she did not understand fully. The financial counsellor also indicated that compensation was being sought on behalf of Consumer 1, and asked for copies of the credit assessment(s) completed by Optus in relation to the Consumer 1 Contracts.
8. On 12 December 2023, Optus responded to the financial counsellor's email, indicating that Optus was prepared to cease collections activity on Consumer 1's account, recall the debt from the factoring agency, remove the default listing, and that Optus would not seek payment or return for the devices under the Consumer 1 Contracts.
9. On 14 December 2023, Optus emailed the financial counsellor redacted information on the credit assessments completed in relation to the Consumer 1 Contracts. On the same day, the financial counsellor sought an account reconciliation statement showing monies paid by and outstanding debts of Consumer 1.

27. On 22 December 2023:

a. Optus repurchased the $2,570.34 debt that it had sold to the factoring agency;

b. Optus refunded Consumer 1 the purchase price; and

c. Optus declined to provide the financial counsellor an account reconciliation statement.

1. On 10 January 2024, after further contact from the financial counsellor, Optus provided information responsive to the financial counsellor's request for an account reconciliation statement.
2. On 12 January 2024, the financial counsellor again requested compensation on behalf of Consumer 1 in addition to the debt waiver and default removal.
3. On 25 January 2024, Optus responded to the financial counsellor, offering to resolve the complaint by ceasing all debt collections and releasing Consumer 1 from all current debts, recalling the debt and removing the debt from Consumer 1's credit file. In addition, Optus confirmed it would allow Consumer 1 to keep the two devices. However, Optus did not agree to pay any compensation to Consumer 1.
4. On 31 January 2024, a financial counsellor advised Optus that Consumer 1 would accept Optus's resolution offer on the condition that she reserved the right to escalate the case further.
5. On 8 February 2024, Optus responded to the financial counsellor confirming acceptance of the offer.
6. On 12 February 2024, Optus requested that the default listing under Consumer 1's name be removed.

1. Consumer 2 was born in 1940 and passed away in April 2022. He was diagnosed with Alzheimer's disease in 2018.
2. By around June 2019, Consumer 2 suffered from paranoia and hallucinations and the only information he could reliably remember about himself was his name and date of birth. He could not remember his mobile number, which was taped to his phone along with the mobile number of his daughter. Consumer 2 also struggled with certain physical tasks, and would have struggled with switching SIM cards in a mobile phone.
3. Prior to 7 July 2019, Consumer 2 had a Telstra-branded mobile phone for decades and used the Telstra network on a pre-paid basis for calls and text messages. Consumer 2 had no interest in changing telecommunications provider.
4. In February 2020, Consumer 2 moved into a nursing home. Consumer 2's daughter was his guardian and joint administrator from March 2020.
5. On or around 7 July 2019, Optus Sales Staff at the Optus Rosebud Store sold Consumer 2 one phone plan under one contract (Consumer 2 Contract). This contract had:

a. a monthly fee of $30.00;

b. a total minimum cost of $360.00; and

c. a total cost of $360.00 if the contract continued for a 12-month term.

1. Prior to or around the time that Consumer 2 entered into the Consumer 2 Contract on 7 July 2019, Optus Sales Staff:

a. entered a false email address on the Consumer 2 Contract; and

b. did not obtain Consumer 2's signature on the Consumer 2 Contract.

1. Consumer 2 did not understand the terms of the Consumer 2 Contract or the total cost of the Consumer 2 Contract.
2. After Consumer 2 entered into the Consumer 2 Contract, between July 2019 and January 2020, Optus issued monthly bills to Consumer 2 in respect of the Consumer 2 Contract. From September 2019 onwards, Consumer 2 did not pay the bills issued by Optus, and continued to be charged by Optus until January 2020.
3. On 7 November 2019, Optus sent a letter to Consumer 2 which stated that there was an amount of $60 overdue, and Consumer 2's account was due to be suspended within five working days of the date of the letter.
4. On 11 January 2020, Optus sent a letter to Consumer 2 which stated that there was an amount of $75 overdue, and Consumer 2's account was due to be suspended within five working days of the date of the letter.
5. In around January 2020, Consumer 2's daughter contacted Optus by phone and, on or around 21 January 2020, visited the Optus Rosebud Store in person to ask about cancelling the Consumer 2 Contract. Consumer 2's daughter told Optus Staff that Consumer 2 was elderly and had Alzheimer's. Optus Staff told Consumer 2's daughter she would need to bring Consumer 2 to the store in person to authorise her on the account.
6. On or around 21 January 2020, Consumer 2 and his daughter returned to the Optus Rosebud Store to cancel the Consumer 2 Contract. During that visit:

a. Consumer 2's daughter spoke to an internal Optus Staff member on the phone, who agreed to cancel the Consumer 2 Contract and repay the $120.00 that Consumer 2 had paid on the account;

b. Consumer 2's daughter was made the contact person for Consumer 2's account;

c. Consumer 2 could not remember his age;

d. Consumer 2 collapsed in-store; and

e. by the time Consumer 2 and his daughter left the Optus Rosebud Store, it had been around three hours.

46. On 21 January 2020, the Consumer 2 Contract was cancelled by Optus.

1. On 22 January 2020, Optus sent Consumer 2's daughter text messages saying that the refund of $120.00 was declined as the account was "not in credit".
2. Between February 2020 and September 2020, Optus continued to issue bills to Consumer 2.
3. On or around 4 March 2020, Optus sent Consumer 2's daughter a text message saying that there was $59.52 outstanding on Consumer 2's account.
4. On or around 5 March 2020, Consumer 2's daughter attended the Optus Rosebud Store to dispute the outstanding amount and ask about the $120 not yet refunded. During this visit Consumer 2's daughter spoke to an Optus Staff member on the phone who advised that the issue was resolved, that Consumer 2's account and all charges had been cancelled, and that the amount Consumer 2 had paid would be refunded. The senior Optus Staff member in the Optus Rosebud Store told Consumer 2's daughter that the Optus Sales Staff member who had sold Consumer 2 the Consumer 2 Contract should not have to recognise dementia as part of his job.
5. On 22 June 2020, Optus sent a letter to Consumer 2 requesting immediate payment of the $59.52 outstanding, adding the amount may be referred to a debt collection agency.
6. On 20 July 2020, Optus referred Consumer 2's debts under the Consumer 2 Contract to a debt collection agency for debt collection.
7. On 23 July 2020, Consumer 2's daughter received the first text message from the debt collection agency, stating that it was collecting an amount of $65.47 on behalf of Optus.
8. Between 23 July 2020 and at least 14 September 2020, Consumer 2's daughter received dozens of text messages and calls from the debt collection agency regarding Consumer 2's debt, including up to seven calls on a single day. Consumer 2's daughter explained to the debt collection agency that the debt was disputed with Optus and that she would not pay the debt.
9. During that time, Consumer 2's daughter disputed the debt numerous times with Optus, with multiple Optus operators advising that the problem would be resolved. She encountered issues with the Optus helpline because Consumer 2's account had been cancelled, so there was no relevant active account number to cite.
10. In around September 2020, Consumer 2's daughter contacted a community legal centre for assistance.
11. On or around 14 September 2020, Consumer 2's daughter granted the community legal centre authority to act on her behalf in her capacity as guardian for Consumer 2 and joint administrator of his estate.
12. On 15 September 2020, the community legal centre sent a letter to Optus requesting copies of documents held by Optus that were relevant to Consumer 2's accounts with Optus.
13. On 16 September 2020, Optus advised the community legal centre that Consumer 2's debt of $59.52 had been waived, and that Optus had recalled the account from the debt collection agency.
14. Between 17 September 2020 and 14 October 2020, the community legal centre continued to communicate with Optus in relation to its request for documents associated with Consumer 2's account.
15. On or around 13 January 2021, the community legal centre lodged a complaint with the TIO on Consumer 2's daughter's behalf for Consumer 2. The TIO referred the complaint to Optus on 18 February 2021.
16. On 3 March 2021, Optus sent an email to the community legal centre which stated that Optus had agreed to call back the $59.52 debt from the debt collection agency and confirmed that Consumer 2's account balance was $0 and provided copies of the Consumer 2 Contract and Customer Care Notes for Consumer 2's accounts. At this point in time, Consumer 2 had not yet received the refund of $120 promised in around January 2020.

63. On or around 19 March 2021:

a. the community legal centre advised Optus that it did not consider the complaint resolved, and requested the refund of $120 and compensation for the distress caused to Consumer 2 and his daughter; and

b. Optus agreed to refund Consumer 2 the $120 but declined to provide compensation, stating "Optus are not required to provide compensation which is in-line with the Telecommunications Industry Ombudsmen guidelines".

1. On 16 April 2021, the community legal centre sent two letters to Optus. The first letter outlined Consumer 2 and his daughter's legal claims and requested both the outstanding refund of $120 and compensation. The second letter contained an offer seeking $7,500 in compensation and the refund of $120. The community legal centre requested a response to the second letter by 30 April 2021.
2. Optus did not reply to the letter by 30 April 2021. The community legal centre followed up on the 16 April 2021 letter on 19 May 2021 and 28 May 2021.
3. On 27 May 2021, The Age newspaper published an article about Consumer 2.
4. On 26 May 2021, members of senior management received an email with The Age journalist's queries for Optus.
5. From at least 27 May 2021, members of senior management, became aware of the newspaper article published in The Age newspaper.
6. On 27 May 2021, the Vice President of Operations & Enablement replied to the Vice President of Regulatory & Public Affairs stating that the State Manager and Optus Sales Staff at the Optus Rosebud Store were "unaware" of the complaint or Consumer 2's return to the store.
7. On 27 May 2021, an Optus Staff member who was a Coach in the Optus CRT emailed the then Director of Complex and Vulnerable Care with her review of the matter, in which she stated that payments made should have been reversed in Optus's system to generate a refund to the customer. This would have created a debit account balance, been monitored and waived to prevent further bills, or credit collection actions.
8. On 28 May 2021, this email was forwarded to members of senior management. The Vice President of Regulatory & Public Affairs asked:

"The piece we are really after here are insights as to how this sale was made to a vulnerable customer - as alleged in the article - and whether this demonstrates gap in our proceses [sic] of dealing with vulnerable customers.

Do we have these insights?"

1. On 28 May 2021, the then Vice President of Retail and Channel Sales replied to the Vice President of Regulatory & Public Affairs' email, stating that Optus "went ont o [sic] engaging a collection agency to chase this payment down whilst we were engaging the customers [sic] lawyers."
2. On 31 May 2021, the financial counsellor sent a letter to the TIO, requesting that the TIO continue to investigate the matter and amending the nature of the earlier TIO complaint.
3. Between 2 and 4 June 2021, there was correspondence between the financial counsellor, the TIO and Optus, regarding the complaint made by the financial counsellor on behalf of Consumer 2.
4. On 9 June 2021, Optus sent a letter to the financial counsellor, offering to pay $5000 to Consumer 2 "as a goodwill gesture", together with the refund of $120. The letter also stated that Optus believed that it had not acted in contravention of any law, code or guideline, and did not consider Consumer 2 had a legal right to compensation, other than the $120 refund.
5. On 17 June 2021, the financial counsellor accepted the offer from Optus on behalf of Consumer 2.

1. Consumer 3 is a First Nations woman. Consumer 3 has low English literacy and little knowledge of contracts and charges. At all material times, Consumer 3's source of income was Centrelink payments and she lived in a remote First Nations community in SA which had no Optus coverage (for phone or internet services).
2. On 16 January 2020, Optus Sales Staff at the Optus Arndale Store sold Consumer 3 the following Optus Products and Optus Services under two contracts (Consumer 3 Contracts):

a. First contract: two phones, two accessories bundles and three phone plans. This contract had:

i. a monthly fee of $177.82;

ii. a total minimum cost of $1,764.02; and

iii. a total cost of $6,401.52 if the contract continued for a 36-month term.

b. Second contract: one phone plan and one accessories bundle. This contract had:

i. a monthly fee of $50.07;

ii. a total minimum cost of $516.27; and

iii. a total cost of $1,802.52 if the contract continued for a 36-month term.

1. During that visit an Optus Sales Staff member submitted an order on Optus's systems for one service and one device in respect of Consumer 3, and this order resulted in a credit assessment approval for up to three services with a maximum device value of $1,646.
2. Prior to or around the time that Consumer 3 entered into each of the Consumer 3 Contracts, Optus Sales Staff:

a. conducted two credit checks in relation to the Consumer 3 Contracts;

b. caused Credit Check Failures, resulting in Consumer 3 being sold products she could not afford and exceeding her credit approval; and

c. did not conduct a coverage check for where Consumer 3 lived, or ignored the coverage check in selling the Optus Products and Optus Services.

81. After entering into the Consumer 3 Contracts:

a. between the period 16 January 2020 and 15 February 2020, Consumer 3 used the data and phone call services provided by the mobile plans that she had purchased under the Consumer 3 Contracts, and was issued with a bill by Optus for the amount of $227.89; and

b. after 15 February 2020, Consumer 3 did not use any of the data or phone call services provided by the mobile phone plans that she had purchased under the Consumer 3 Contracts.

1. On 19 June 2020, Optus cancelled the Consumer 3 Contracts due to non-payment of bills. At the time of cancellation, Consumer 3 had accrued a debt of $1,367.34.
2. On 17 July 2020, Optus issued Consumer 3 with a bill in respect of the Consumer 3 Contracts, for a total amount of $2,979.86.
3. On 11 August 2020, Optus referred Consumer 3's debt to a debt collection agency for collection.
4. In or around February 2021, Consumer 3 received a debt collection notice for the amount of $4,320, in relation to debts on the Consumer 3 Contracts.
5. In or around March 2021, a financial counsellor contacted Optus on behalf of Consumer 3 regarding Consumer 3's debts, and stated that Consumer 3 was a First Nations woman, could not understand the Consumer 3 Contracts, was on Centrelink payments, and had no Optus coverage at her home and community.
6. After some attempted contact between Consumer 3's representative and Optus, on 8 April 2021, Consumer 3's representative contacted Optus again. In response, an Optus Staff member offered to waive $1,000 of Consumer 3's debt to Optus.
7. On 27 April 2021, Consumer 3's representative contacted Optus again, and advised that Consumer 3 rejected Optus's previous offer to waive $1,000 of the debt owing. Consumer 3's representative requested a full debt waiver, on the basis that:

a. Consumer 3 was an elderly First Nations woman with low English literacy and little to no knowledge of phone contracts and charges;

b. Consumer 3 lived in an area with no Optus coverage;

c. because of these matters, Optus should not have offered Consumer 3 the services in the Consumer 3 Contracts in the first place; and

d. Consumer 3 relied solely on Centrelink payments, and could not afford the balance of her debts to Optus.

1. An Optus Staff member responded to Consumer 3's representative and refused to waive the balance owed by Consumer 3.
2. On 4 May 2021, Consumer 3's representative made a complaint on behalf of Consumer 3 to the TIO (Consumer 3 TIO Complaint).
3. On 4 May 2021, the TIO sent an email to Optus, which included the details of the Consumer 3 TIO Complaint, and stated:

a. that under the TCP Code, Optus must ensure that it does not undertake credit management action on specified disputed amounts or while an arrangement under a financial hardship policy is being discussed or is in place; and

b. that in this case, the approximate total of disputed charges or debt for payment arrangement was $4,320.

1. Later in May 2021, Optus closed the complaint on the basis that they had been unable to contact Consumer 3's representative, despite the complaint remaining unresolved.
2. On 27 May 2021, Consumer 3's representative emailed the Optus Staff member requesting a call back. In response, Optus Staff sought a Letter of Authority from Consumer 3's representative.
3. On 9 June 2021, an Optus Staff member from Customer Resolution sent an email to other Optus Staff, which referred to the Consumer 3 TIO Complaint, and stated:

"Hoping you might be able to help or point me in the right direction - when Telstra's $50mil fine for this kind of sales practice went through, did we tidy up our own backyard? We can go back to individual stores and sales staff, but wondering if anything has happened at the organisational scale."

1. On 24 June 2021, the TIO sent an email to Optus, referring to the Consumer 3 TIO Complaint, which requested that Optus stop credit management action on charges that were the subject of the Consumer 3 TIO Complaint.
2. On 30 June 2021, Optus sold Consumer 3's debt of $2,994.86 to a factoring agency despite the TIO complaint remaining unresolved and the further contact from Consumer 3's representative.
3. On 6 July 2021, the TIO sent an email to numerous Optus Staff, which stated (inter alia) that:

a. the Consumer 3 TIO Complaint had been referred to a dispute resolution officer;

b. the complaint had been made on behalf of Consumer 3 by Consumer 3's representative; and

c. the complaint concerned a debt collection notice that Consumer 3 had received in February 2021, for the amount of $4,320.

1. On 9 July 2021, an Optus Staff member agreed to credit the charges owing to Optus by Consumer 3, waive the $2,994.86 owing and remove the default listing on the basis that Optus should not have sold the services the subject of the Consumer 3 Contracts to Consumer 3 given that Consumer 3 lived in an area with no Optus coverage.
2. On 27 July 2021, Optus repurchased Consumer 3's debt from the factoring agency.
3. In October 2021, the First Optus Arndale Investigation was commenced in relation to Consumer 3 and another consumer after receipt of the referral from the TIO.
4. On 20 October 2021, the Vice President of Regulatory & Public Affairs forwarded an email chain to the Managing Director of Customer Success, which contained details of the TIO complaint in respect of Consumer 3, to which the Managing Director of Customer Success replied copying other members of senior management.
5. On 20 October 2021, the Vice President of Operations & Enablement sent an email to other Optus Staff in relation to the Consumer 3 Contracts (and other consumer contracts) stating that: "it does appear that we failed simple process here especially with regard to coverage check".
6. On 29 October 2021, the Optus Quality Control division referred the circumstances surrounding the Consumer 3 Contracts to the FRM team for investigation.
7. On 27 January 2022, the Optus FRM team completed its PAR in respect of the circumstances surrounding the Consumer 3 Contracts, which stated that (inter alia) Optus Sales Staff manipulated, misused and breached the credit checking process in order to make multiple sales to consumers who could "ill afford" to maintain ongoing fees.
8. On 20 April 2022, Optus sent a response to the TIO in relation to the TIO Vulnerable Consumers Systemic Investigation in which Optus stated in respect of the sales to Consumer 3:

"Optus investigation of this complaint found that the sales representative who served this customer breached Optus's policies relating to customer identification and activation and credit assessment by: (i) adding additional services to the customer's account after the credit assessment had been completed, and (ii) incorrectly recording the customer's occupation, and entering an address and accepting a digital signature that did not match the customer's Proof of Age card."

106. Optus did not disclose:

a. Optus's internal findings in January 2022 that Credit Check Failures had occurred in order to make multiple sales to Consumer 3 in circumstances where she could "ill afford" to maintain ongoing fees; and

b. that Optus had issued Mavaya with a breach notice in respect of the conduct.

1.4 Consumer 4

1. Consumer 4 is a First Nations woman. At all material times, Consumer 4's sole source of income was JobSeeker payments and she lived in a remote community in SA which had no Optus coverage (for phone or internet services).
2. On 21 March 2020, Optus Sales Staff at the Optus Arndale Store sold Consumer 4 the following Optus Products and Optus Services under two contracts (Consumer 4 Contracts):

a. First contract: two phones, seven phone or data plans, four Optus Voice to MMS services and two Device Protect services. This contract had:

i. a monthly fee of $534.02;

ii. a total minimum cost of $3,079.99; and

iii. a total cost of $19,224.72 if the contract continued for a 36-month term.

b. Second contract: one accessories bundle. This contract had:

i. a monthly fee of $13.32; and

ii. a total cost of $479.52 if the contract continued for a 36-month term.

1. During that visit an Optus Sales Staff member submitted an order on Optus's systems for one service and one device in respect of Consumer 4, and this order resulted in a credit assessment approval for Consumer 4 for up to eight services with a maximum device value of $2,632.
2. Prior to or around the time that Consumer 4 entered into the Consumer 4 Contracts on 21 March 2020, Optus Sales Staff:

a. conducted two credit checks in relation to the Consumer 4 Contracts;

b. caused Credit Check Failures, resulting in Consumer 4 being sold products she could not afford and exceeding her credit approval;

c. entered a false email address on the Consumer 4 Contracts; and

d. did not conduct a coverage check for where Consumer 4 lived, or ignored the coverage check in selling the Optus Products and Optus Services.

1. On 22 April 2020, Optus issued a bill to Consumer 4 for a total amount of $1,268.92, which:

a. was in respect of the five monthly phone plans and two data plans covered by the Consumer 4 Contracts;

b. showed that in respect of four of the plans, Consumer 4 had used none of the data allowance associated with those plans for the period from 23 March 2020 to 22 April 2020; and

c. showed that of the combined data allowance of the seven plans, over 567GB remained unused (with only 162GB being used during the period covered by the bill).

1. On 26 August or 9 September 2020, Optus cancelled the Consumer 4 Contracts due to non-payment of bills. By that time, Consumer 4 had accrued a total debt in respect of the Consumer 4 Contracts of $3,912.85.
2. On 23 September 2020, Optus issued a bill to Consumer 4 for a total amount of $6,119.17, which:

a. showed that 128GB of data allowance had been used in the period from 21 April 2020 to 20 August 2020;

b. showed that in respect of six of the seven plans covered by the bill, Consumer 4 had used none of the data allowance associated with those plans for the period from 21 August to 23 September 2020; and

c. showed that of the combined data allowance of the seven plans, 730GB remained unused (with only 320KB being used during the period covered by the bill).

1. Optus continued to issue bills to Consumer 4 for this amount of $6,119.17 up to 23 June 2021.
2. On 2 November 2020, Optus referred Consumer 4's debts under the Consumer 4 Contracts to a debt collection agency.
3. On 7 April 2021, Optus listed a default in relation to Consumer 4.
4. On 7 May 2021, a financial consultant contacted Optus on behalf of Consumer 4 regarding Consumer 4's debts with Optus. On 25 May 2021, Consumer 4's representative requested a full debt waiver on behalf of Consumer 4, and an Optus Staff member responded on 21 June 2021 indicating that Optus was prepared to waive the amount of $4,032.68, but only if the devices were returned by Consumer 4 in good condition. The Optus Staff member stated that if the devices were not in good condition, the charge of $2,086.49 remained payable.
5. On 24 June 2021, Consumer 4's account was placed under a hardship arrangement lasting until 27 July 2021.
6. On 20 July 2021, Consumer 4's representative made a complaint on behalf of Consumer 4 to the TIO (Consumer 4 TIO Complaint).
7. On 21 July 2021, the TIO sent an email to Optus, which included the details of the Consumer 4 TIO Complaint, and stated:

a. that under the TCP, Optus must ensure that it does not undertake credit management action on specified disputed amounts or while an arrangement under a financial hardship policy is being discussed or is in place; and

b. that in this case, the approximate total of disputed charges or debt for payment arrangement was $2,086.

1. Despite the account being placed under a hardship arrangement from 24 June to 27 July 2021, on 23 July 2021, Optus issued a bill to Consumer 4 for a total amount of $2,086.49. The hardship hold was removed in accordance with Optus's procedure of removing hardship holds after 45 days unless circumstances require otherwise and Optus was not able to contact the financial counsellor after 25 May 2021.
2. On 27 July 2021, the Customer Care Notes for Consumer 4's account recorded a complaint made by Consumer 4's representative to Optus, which stated that:

a. Consumer 4 was a First Nations woman from the remote north-west of SA;

b. while in Adelaide, Consumer 4 was sold seven Optus Services and two handsets, with total minimum monthly repayments of $497, despite Consumer 4's sole income being JobSeeker payments such that the repayments were almost half her monthly income; and

c. there is no Optus coverage at all at her residential address, and despite Consumer 4 providing her address, she was still sold seven Optus Services.

123. On 13 August 2021, Optus closed the complaint.

1. On 19 August 2021, Consumer 4's representative sent an email to Optus, indicating that the handsets associated with Consumer 4's account had been lost.
2. On 30 September 2021, an Optus Staff member informed Consumer 4's representative that because Optus had not heard from Consumer 4's representative, that they had removed the "Dispute Bar" on Consumer 4's account on the debt of $2,086.49 and the account would go back to collection status. This was despite receipt of the email from Consumer 4's representative on 19 August 2021.
3. In October 2021, the First Optus Arndale Investigation was commenced in relation to Consumer 4 and Consumer 3 after receipt of the referral from the TIO.
4. On 20 October 2021, the Vice President of Regulatory & Public Affairs forwarded an email chain to the Managing Director of Customer Success, which contained details of the TIO complaint in respect of Consumer 3, to which the Managing Director of Customer Success replied copying other members of Optus senior management.
5. On 20 October 2021, the Vice President of Operations & Enablement sent an email to other Optus Staff in relation to the Consumer 4 Contracts and Consumer 3 Contracts stating that: "it does appear that we failed simple process here especially with regard to coverage check".
6. On 29 October 2021, the Optus Quality Control division referred the circumstances surrounding the Consumer 4 Contracts and Consumer 3 Contracts to the Optus FRM team for investigation.
7. On 6 December 2021, Optus sold Consumer 4's debt of $2,086.49 to a factoring agency.
8. On 27 January 2022, the Optus FRM team completed its PAR in respect of the circumstances surrounding the Consumer 4 Contracts and Consumer 3 Contracts, which stated that (inter alia) Optus Staff manipulated, misused and breached the credit checking process in order to make multiple sales to consumers who could "ill afford" to maintain ongoing fees.
9. On 20 April 2022, Optus sent a response to the TIO in relation to the TIO Vulnerable Consumers Systemic Investigation in which Optus stated in respect of the sales to Consumer 4 that "Optus' investigation of this complaint did not identify any regulatory compliance issues. Optus identified that the sales representative who served this customer breached Optus's policies relating to customer identification and activation and credit assessment by: (i) adding additional services to the customer's account after the credit assessment had been completed, and (ii) incorrectly recording the customer's occupation, and entering an address and accepting a digital signature that did not match the customer's driver's licence."
10. Despite stating that Optus did not identify any regulatory compliance issues with respect to Consumer 4, Optus did not disclose:

a. Optus's internal findings in January 2022 that Credit Check Failures had occurred in order to make multiple sales to Consumer 4 in circumstances where she could "ill afford" to maintain ongoing fees; and

b. that Optus had issued Mavaya with a breach notice in respect of the conduct.

1. Optus continued to issue bills to Consumer 4 for the amount of $2,086.49 up to 21 June 2022.
2. On 5 August 2022, Optus waived Consumer 4's debt of $2,086.49 and requested that the default listing in relation to Consumer 4 be removed. The Customer Care Notes on Consumer 4's account state that the reason for this was: "CRT confirmed, they are using this acc as an example re a systemic investigation to KBR and need this urgently fixed". KBR was a reference to the then-CEO of Optus.
3. On 13 August 2022, Optus re-purchased Consumer 4's debt of $2,086.49 from the factoring agency.

1. Consumer 5 is a person living with an intellectual disability and as a result, she has a very limited understanding of money or written documents, low literacy and limited vocabulary. At all material times Consumer 5's finances were controlled by the Public Trustee of South Australia and Consumer 5's income consisted of disability pension payments from Centrelink, which she sometimes supplemented with a small wage through casual work.
2. On 15 May 2020, Optus Sales Staff at the Optus Munno Para Store sold Consumer 5 the following Optus Products and Optus Services under three contracts (first, second and third Consumer 5 Contracts):

a. First contract: one phone, one phone plan and one accessories bundle. This contract had:

i. a monthly fee of $95.62;

ii. a total minimum cost of $1,727.32; and

iii. a total cost of $3,442.32 if the contract continued for a 36-month term.

b. Second contract: one broadband plan and one modem. This contract had:

i. a monthly fee of $68.00;

ii. a total minimum cost of $1,632.00; and

iii. a total cost of $1,632.00 if the contract continued for a 24-month term.

c. Third contract: one phone plan. This contract had:

i. a monthly fee of $36.75;

ii. a total minimum cost of $36.75; and

iii. a total cost of $441.00 if the contract continued for a 12-month term.

139. After entering into the first, second and third Consumer 5 Contracts:

a. Consumer 5 was overdue on her payments to Optus on several occasions; and

b. Optus restricted Consumer 5's services in July and November 2020 due to overdue payments.

1. On 9 December 2020, Optus Sales Staff at the Optus Parabanks Store sold Consumer 5 the following Optus Products and Optus Services under two contracts (fourth and fifth Consumer 5 Contracts):

a. Fourth contract: one phone, one phone plan, two accessories bundles and one Device Protect service. This contract had:

i. a monthly fee of $227.10;

ii. a total minimum cost of $2,470.60; and

iii. a total cost of $8,175.60 if the contract continued for a 36-month term.

b. Fifth contract: one phone, one phone plan, one accessories bundle and one Device Protect service. This contract had:

i. a monthly fee of $194.34;

ii. a total minimum cost of $1,388.54; and

iii. a total cost of $6,996.24 if the contract continued for a 36-month term.

1. On 10 December 2020, Optus Sales Staff at the Optus Elizabeth Store sold Consumer 5 the following Optus Products and Optus Services under two contracts (sixth and seventh Consumer 5 Contracts):

a. Sixth contract: one accessories bundle. This contract had a total cost of $400 and a term of 36 months.

b. Seventh contract: one accessories bundle. This contract had a total cost of $360 and a term of 36 months.

1. All seven Consumer 5 Contracts are referred to collectively as the Consumer 5 Contracts and the fourth, fifth, sixth and seventh Consumer 5 Contracts are referred to collectively as the December Consumer 5 Contracts.
2. On 9 December 2020, Optus Sales Staff had submitted three internal credit checks in relation to Consumer 5 between 12:41 AEST and 12:54 AEST. The internal credit checks were submitted in succession and each time approved Consumer 5 for between $227 and $275 of services and between $1,658 and $2,853 of devices. This was done in order to circumvent Optus's credit check processes. Optus Sales Staff also input false information on the credit checks, listing Consumer 5's occupation as "Not Supplied" and residential status as "Not provided".
3. On 10 December 2020, Optus Sales Staff submitted four internal credit checks in relation to Consumer 5 between 17:00 AEST and 17:10 AEST. The internal credit checks were submitted in succession and each time approved Consumer 5 for up to $296 of services and between $400 and $420 of devices (other than one credit check which was declined). This was done in order to circumvent Optus's credit check processes. Optus Sales Staff also input false information on the credit checks, listing Consumer 5's occupation as "Not Supplied" and residential status as "Not provided".
4. This conduct constituted Credit Check Failures in respect of the transactions with Consumer 5 on 9 and 10 December 2020.
5. Prior to or around the time of Consumer 5 entering into the December Consumer 5 Contracts, Optus Sales Staff:

a. conducted three credit checks on 9 December 2020, all of which were approved, and four credit checks on 10 December 2020, one of which was declined; and

b. caused Credit Check Failures.

147. After entering into the December Consumer 5 Contracts:

a. Consumer 5's monthly Optus bills increased from approximately $200 per month to approximately $430 per month; and

b. Consumer 5 could not afford the monthly payments under the Consumer 5 Contracts and only made occasional part payments.

1. In or around January 2021, Consumer 5's parents contacted Optus and explained that Consumer 5 was on a disability pension, lived with an intellectual disability, did not have capacity to understand written documents and could not make informed financial decisions due to her disability.

149. After contact by Consumer 5's parents:

a. On 11 January 2021, Optus Staff told Consumer 5 and her mother to go to the stores where Consumer 5 was sold the contracts and discuss the problem with them. Optus Staff also asked Consumer 5's mother to provide a medical certificate for Consumer 5. At some time between 20 and 28 January 2021, this medical certificate was provided to Optus.

b. On 25 January 2021, Consumer 5's mother went to the Optus Parabanks Store. Optus Staff told her there was nothing they could do, and Consumer 5 would need to pay her Optus bill.

c. On 28 January 2021, in light of the medical certificate provided by Consumer 5's parents, Optus offered to deduct $10 off the monthly cost of the contracts for 12 months. Consumer 5's parents refused this offer, including because it would still be unaffordable for Consumer 5.

d. On 3 February 2021, Optus Staff called Consumer 5's parents. The Optus Sales Staff member claimed that Consumer 5's mother had been in the Optus Parabanks Store with her on 9 or 10 December 2020, which was not true. Optus offered to apply a $74.50 monthly credit for 12 months. Consumer 5's parents refused this offer, including because it would still be unaffordable for Consumer 5.

1. As at February 2021, the complaint in respect of the December 2020 Consumer 5 Contracts was unresolved.
2. Between the period from December 2020 to June 2021, Consumer 5 continued to be billed by Optus. The majority of the bills issued by Optus were for amounts around $430, but in April 2021 and June 2021, the amounts of the bills increased to over $2,000 each. The final bill issued by Optus in June 2021 was for the amount of $6,809.61.
3. On 17 February 2021, Consumer 5's father made a complaint on Consumer 5's behalf to the TIO, which was sent to Optus on the same day.
4. On 4 March 2021, the TIO requested that Optus stop credit management action in respect of Consumer 5's accounts with Optus.
5. On or around 10 March 2021, Consumer 5's parents informed Optus that Consumer 5 wanted to return two devices, and Optus advised that it required a medical certificate for Consumer 5. Consumer 5's parents replied on 12 March 2021, attaching the same medical certificate previously provided to Optus in January 2021.
6. On 17 March 2021, Optus told Consumer 5's parents that it had received the medical certificate and had sent them collection kits for the Optus Products to be returned to Optus.
7. On 18 March 2021, the TIO issued a further request to Optus to stop credit management action in relation to Consumer 5's accounts with Optus.
8. From at least 25 March 2021, Optus knew or ought reasonably to have known that Consumer 5's finances were controlled by the Public Trustee of South Australia by virtue of receiving a copy of Consumer 5's guardianship certificate by email on this date.
9. On 16 April 2021, Optus sent Consumer 5 a bill requiring Consumer 5 to pay the outstanding charges on two devices, totalling $3,473.45.
10. On 15 May 2021, Optus sent a letter to Consumer 5, which stated that Consumer 5 owed Optus $3,473.45, and that Optus intended to suspend Consumer 5's account within five working days.
11. Between May 2021 and June 2021, Optus had liaised with the Public Trustee of South Australia and ultimately agreed to close Consumer 5's account and waive outstanding debts. Optus barred Consumer 5 from buying further services and products.
12. On 16 June 2021, Optus sent Consumer 5 a bill requiring Consumer 5 to pay the further outstanding charges on one device and six accessories bundles, being $2,996.48. The total amount due was $6,809.61.
13. Between 16 July 2021 and 15 May 2023, Optus continued to send bills to Consumer 5 for $6,809.61, despite Optus having agreed to waive this debt in June 2021.
14. On 20 April 2022, Optus sent a response to the TIO in relation to the TIO Vulnerable Consumers Systemic Investigation in which Optus stated in respect of the sales to Consumer 5 that Optus's investigation of this complaint did not identify any regulatory compliance issues, non-compliance with Optus's customer ID and activation policies, or any concerning sales conduct.
15. On 15 June 2023, Optus issued a bill to Consumer 5 which had a $0 balance and stated "Manual Insolvency Write Off".
16. On 8 August 2024, Optus stated that Consumer 5's current outstanding balance was $6,809.61 and no remediation steps had been taken. However, Consumer 5's debt had in fact been written off (which was communicated to the customer in the bill issued on 15 June 2023 as outlined above) and Optus did not take any steps to recover the outstanding balance after that time. In November 2024, Optus removed any outstanding balance from Consumer 5's account to reflect this position.

1. Consumer 6 is a single mother of four children, two of whom have been diagnosed with autism. Consumer 6 has mental and physical health issues and has been required to spend significant amounts of time in hospital. At all material times Consumer 6 was unemployed and Consumer 6's sole source of income was Centrelink payments of approximately $700 a week.
2. On 27 May 2020, Consumer 6 contacted Optus seeking a payment extension. She was referred to "Collections".
3. On 2 June 2020, Consumer 6 contacted Optus by phone seeking to cancel her prepaid service and go on a plan with a new phone. She wanted to be able to communicate with doctors and specialists in light of her regular hospital visits. She told Optus Staff she did not want to upgrade her phone or plan, and wanted something she could afford. She was told to go to the Optus Northland Store in person.
4. On or around 4 June 2020, Consumer 6 attended the Optus Northland Store because she wanted a new phone on a plan and told Optus Sales Staff that:

a. she wanted to go on a small plan;

b. she was unemployed and her only source of income was Centrelink payments; and

c. she had received phone calls from debt collectors.

1. During her visit to the Optus Northland Store on 4 June 2020, an Optus Sales Staff member made the following representations to Consumer 6:

a. that it would be cheaper for Consumer 6 to buy two mobile phones, as opposed to one mobile phone;

b. that it would be cheaper for Consumer 6 to buy a top of the range phone, because if she did she would be able to get extra accessories "for free";

c. that if Consumer 6 signed up for a new phone plan with internet and Optus Sport, she would make "big savings"; and

d. that all the Optus Products and Optus Services that Consumer 6 purchased would cost around $100 per month,

referred to collectively as the Consumer 6 POS Representations.

1. After the Consumer 6 POS Representations were made, on 4 June 2020, Optus Sales Staff at the Optus Northland Store sold Consumer 6 three phones, four phone or data plans, three accessories bundles, three Device Protect services and one Optus Sport service under one contract (Consumer 6 Contract). This contract had:

a. a monthly fee of $420.58;

b. an upgrade fee of $121.02;

c. a total minimum cost of $6,968.38; and

d. a total cost of $15,261.90 if the contract continued for a 36-month term (which included a one-off upgrade fee of $121.02).

1. At no point prior to Consumer 6 signing the Consumer 6 Contract, did the Optus Sales Staff at the Optus Northland Store:

a. explain the terms of the Consumer 6 Contract to Consumer 6;

b. provide a copy of the Consumer 6 Contract to Consumer 6 or ensure she read it; and/or

c. explain the cost of the Consumer 6 Contract and the ongoing cost of the Optus Products and Optus Services covered by the Consumer 6 Contract.

1. Prior to or around the time that Consumer 6 entered into the Consumer 6 Contract on 4 June 2020, Optus Sales Staff conducted one credit check in relation to the Consumer 6 Contract.

174. After entering into the Consumer 6 Contract:

a. on 4 June 2020, Consumer 6 sought to clarify the monthly cost of the Consumer 6 Contract and was told by Optus Sales Staff it was around $100 per month for each device and that the Consumer 6 Contract could not be changed because Consumer 6 had signed it;

b. monthly payments were charged to Consumer 6 by Optus;

c. Optus disconnected Consumer 6's phone and internet services on several occasions, often without notice to her, making it difficult for her to communicate with doctors and specialists (and for them to reach her) and for her children to learn from home during Victoria's lockdowns in response to the COVID-19 pandemic; and

d. Consumer 6 struggled to make the payments to Optus as they consumed a large part of her income. Sometimes she had to forego other essentials to make the payments to Optus.

1. On or around 9 April 2021, Consumer 6's Optus account was cancelled due to non-payment of bills.
2. On or around 19 April 2021, Optus sent Consumer 6 a bill for $4,818.90 for service and other charges in addition to the outstanding balance of $550, totalling $5,368.90.
3. In or around May 2021, Consumer 6's services were reinstated on a new account number at Consumer 6's request.
4. On 2 June 2021, Optus sold a debt in the amount of $5,368.90 in relation to Consumer 6's account to a factoring agency.
5. On 4 June 2021, Consumer 6 received correspondence from the factoring agency demanding repayment of an asserted debt of $5,852.10.
6. On 25 June 2021, Consumer 6 received correspondence from a law firm, on behalf of the factoring agency, demanding repayment of an asserted debt of $5,852.10.
7. On 5 July 2021, Consumer 6 received a call from the factoring agency in relation to the asserted debt of $5,852.10 during which Consumer 6 advised she had a meeting with a financial counsellor later that day.
8. On 5 July 2021, Consumer 6 met with a financial counsellor and authorised the financial counsellor to act on her behalf in relation to dealings with Optus. Consumer 6's financial counsellor sent an authorisation form to Optus to be added to Consumer 6's file.
9. On or around 13 July 2021, Consumer 6 received correspondence from the factoring agency offering to reduce the debt asserted to be owed by Consumer 6 to $4,681.68 if payment was received within seven days.
10. Some time between 5 July 2021 and 19 July 2021, the financial counsellor contacted Optus and made a complaint on behalf of Consumer 6.
11. In response to Consumer 6's financial counsellor, on 19 July 2021, Optus offered to apply a partial credit to Consumer 6's accounts.
12. On 21 July 2021, the debt with the factoring agency was reduced to $1,050.57.
13. Between 21 July 2021 and 28 July 2021, the factoring agency attempted to call and send text messages to Consumer 6 in relation to the asserted debt of $1,050.57 owed by her.
14. On 3 August 2021, the debt with the factoring agency was reduced to $0.01 and the account for Consumer 6 was closed by the factoring agency.
15. On or around 13 September 2021, Consumer 6's financial counsellor contacted Optus again to advise Optus that a handset debt waiver had not been applied to Consumer 6's account.
16. On or around 7 October 2021, Consumer 6's financial counsellor made a complaint to the TIO on Consumer 6's behalf.
17. On or around 12 October 2021, Optus responded to Consumer 6's financial counsellor advising that they were only in a position to remove the handset monthly charges if Consumer 6 returned the devices.
18. On 20 December 2021, Consumer 6 and Optus resolved the complaint. Optus agreed to:

a. place a flag on Consumer 6's credit file to ensure manual assessment of any future credit check, thereby reducing the risk of auto-approval;

b. apply a credit of $729.03 on Consumer 6's account to bring her balance to $0; and

c. waive Consumer 6's remaining device payout charges in respect of the three phones received by her.

1. On 20 April 2022, Optus sent a response to the TIO in relation to the TIO Vulnerable Consumers Systemic Investigation in which Optus stated in respect of the sales to Consumer 6 that:

a. the credit assessment was automatically approved on the basis that Consumer 6 had been a customer with Optus for over 10 years;

b. at the time of the credit assessment application the customer's account indicated that she was not in hardship, she had good payment history and had paid off two existing contracts with accessories;

c. Consumer 6 attempted to obtain two further services from Optus but her applications were declined as she was considered to have over-extended her capacity;

d. Consumer 6 signed up to a total of 4 services over 12 months, including 3 mobile and 1 home Internet service; and

e. Optus's investigation of this complaint did not identify any regulatory compliance issues, non-compliance with Optus's customer ID and activation policies, or any concerning sales conduct.

1. After Optus was contacted by Consumer 6's financial counsellor in July 2021, Consumer 6 continued to be billed by Optus for Optus Products and/or Optus Services under the Consumer 6 Contract until April 2022.

1. Consumer 7 was born on 20 February 1962. He passed away in May 2023. At all material times, Consumer 7 was homeless, lived with deafness and was mute (and could not communicate in English and communicated by Australian Sign Language) and had parts of his fingers and hand amputated. He had very limited ability to use technology, including computers or phones. Consumer 7's only income was the disability pension which was $882.20 per fortnight.
2. Between 13 May 2021 and 11 November 2021, Optus Sales Staff at the Optus Westfield Marion Store sold Consumer 7 the following Optus Products and Optus Services under four contracts (Consumer 7 Contracts):

a. First contract dated 13 May 2021: one phone plan. This contract had:

i. a monthly fee of $65;

ii. a total minimum cost of $65; and

iii. a total cost of $780 if the contract continued for a 12-month term.

b. Second contract dated 8 July 2021: one phone, one phone plan, one accessories bundle and one Device Protect service. This contract had:

i. a monthly fee of $127.00;

ii. a total minimum cost of $1,807.00; and

iii. a total cost of $4,572.00 if the contract continued for a 36-month term.

c. Third contract dated 11 November 2021: one phone and one phone plan. This contract had:

i. a monthly fee of $49.75;

ii. a total minimum cost of $320.65; and

iii. a total cost of $1,791.00 if the contract continued for a 36-month term.

d. Fourth contract dated 11 November 2021: one accessories bundle. This contract had:

i. a monthly fee of $11.10; and

ii. a total cost of $399.60 if the contract continued for a 36-month term.

1. At no point prior to Consumer 7 signing any of the Consumer 7 Contracts at the Optus Westfield Marion Store did Optus Sales Staff explain the terms of the Consumer 7 Contracts in a manner which Consumer 7 would be capable of understanding, including in light of his hearing disability.
2. Prior to or around the time that Consumer 7 entered into each of the Consumer 7 Contracts, Optus Sales Staff conducted credit checks in relation to the first Consumer 7 Contract and second Consumer 7 Contract.
3. On or around 20 December 2022, Consumer 7's support coordinator, made a complaint to the TIO on Consumer 7's behalf.
4. On 9 January 2023, Optus notified the support coordinator that they could not progress the TIO complaint without receiving a power of attorney document. On the same day, Optus marked the TIO complaint as "resolved" and subsequently closed the complaint.
5. From December 2022 to around April 2023, the support coordinator continued to attempt to facilitate resolution of Consumer 7's complaint. On at least one occasion, the support coordinator answered a phone call from Optus Staff while Consumer 7 was present. The Optus Staff refused to speak about the complaint until they had spoken with Consumer 7, which was not possible given Consumer 7 was deaf and mute.
6. Between around February 2023 and March 2023, Optus advised the support coordinator and the TIO that it could not progress the TIO complaint without a valid power of attorney and completion of a verification process in relation to Consumer 7.
7. On 15 March 2023, the TIO notified Optus that Consumer 7 would attend an Optus store with a support person and provide identification in order to complete the verification process.
8. On 17 and 31 March 2023, Consumer 7 attempted to verify his identity at the Optus Castle Plaza Store.
9. On 5 April 2023, after a query from the TIO, Optus notified the support coordinator that the verification process could be completed by email. The support coordinator provided the information on the same day.
10. On 17 April 2023, the TIO notified the support coordinator that Optus had agreed to accept return of the Optus Products, and cancel the Optus Services, purchased pursuant to the Consumer 7 Contracts, and waive the outstanding amount of $911.91 owed by Consumer 7.

1. Consumer 8 was around 82 years old in July 2021. Consumer 8 mainly speaks Italian at home and her spoken English is good but she has difficulties with English-language paperwork.
2. On or around 2 July 2021, Consumer 8 attended the Optus Tea Tree Plaza Store to enquire about a bill she had received from Optus.

209. During her visit to the Optus Tea Tree Plaza Store on 2 July 2021:

a. Optus Sales Staff recorded in the customer care notes that Consumer 8 mentioned she had a crack on the screen of her phone;

b. Optus Sales Staff offered Consumer 8 a new phone; and

c. Consumer 8 felt pressured by Optus Sales Staff and unable to refuse a new phone, even though she did not want a new phone.

1. On or around 2 July 2021, Optus Sales Staff at the Optus Tea Tree Plaza Store sold Consumer 8 one phone and one phone plan under one contract (Consumer 8 Contract). This contract:

a. had a monthly fee of $79.68;

b. had a total minimum cost of $1,293.48; and

c. had a total cost of $2,868.48 if the contract continued for a 36-month term.

1. The Consumer 8 Contract stated that Consumer 8 was the CEO/Managing Director of a business.
2. Optus Sales Staff did not ask Consumer 8 about the business name and ABN on the Consumer 8 Contract, and Consumer 8 was a consumer who did not have a business in that name.
3. Prior to or around the time that Consumer 8 signed the Consumer 8 Contract, Optus Sales Staff:

a. pressured Consumer 8 into purchasing a new phone, in circumstances where the purpose for which Consumer 8 had entered the Optus Tea Tree Plaza Store was to pay a bill for an existing service;

b. conducted one credit check in relation to the Consumer 8 Contract; and

c. entered false information on the Consumer 8 Contract and/or credit check, namely that Consumer 8 was a "CEO/Managing Director" of a business with a name and ABN that did not belong to Consumer 8.

214. After entering into the Consumer 8 Contract, Consumer 8 was upset and felt cheated.

1. Consumer 8 returned to the Optus Tea Tree Plaza Store on 3 July 2021 and 6 July 2021 and Optus Staff told her she was unable to cancel the Consumer 8 Contract.
2. On or around 7 July 2021, Consumer 8 and/or her niece made a complaint to the TIO and requested that the Consumer 8 Contract be cancelled and the device returned.
3. On 13 July 2021, Optus agreed to release Consumer 8 from the Consumer 8 Contract and have the phone returned to Optus and that a credit of $1,213.80 would be applied to Consumer 8 once the phone had been returned to Optus.
4. Sometime after making the complaint to the TIO, between 14 July and 5 August 2021, Consumer 8 sent the phone back to Optus.
5. On or around 23 August 2021, $185.28 was direct debited from Consumer 8's account by Optus under the Consumer 8 Contract.
6. On or around 17 September 2021, Consumer 8 and/or her niece contacted Optus and requested that Consumer 8 be credited the amount Consumer 8 was charged by Optus on or around 23 August 2021.
7. In around late September 2021 or early October 2021, Optus applied a credit of $1,179.12 to Consumer 8's Optus account.

1. Consumer 9 is a First Nations person and does not speak English. At all material times, Consumer 9 lived in a remote community in the NT where there was no Optus mobile coverage.
2. On 30 December 2021, Optus Sales Staff at the Optus Casuarina Store sold Consumer 9 the following Optus Products and Optus Services under two contracts (Consumer 9 Contracts):

a. First contract: one phone, one phone or data plan and one accessories bundle. This contract had:

i. a monthly fee of $89.10;

ii. a total minimum cost of $1,632.60; and

iii. a total cost of $3,207.60 if the contract continued for a 36-month term.

b. Second contract: one accessories bundle. This contract had:

i. a monthly fee of $6.64;

ii. a total minimum cost of $239.04; and

iii. a total cost of $239.04 if the contract continued for a 36-month term.

1. The Consumer 9 Contracts were allocated to two separate account numbers in Consumer 9's name.
2. Prior to or around the time that Consumer 9 entered into the Consumer 9 Contracts on 30 December 2021, Optus Sales Staff:

a. did not conduct a coverage check for where Consumer 9 lived, or ignored the coverage check in selling the Optus Products and Optus Services; and

b. conducted two credit checks in relation to the Consumer 9 Contracts.

226. After entering the Consumer 9 Contracts:

a. Consumer 9 did not use the data in the mobile phone plans he was sold, including because he did not have Optus network coverage where he lived; and

b. Consumer 9 could not afford the monthly payments.

1. Between 7 February 2022 and 7 January 2023, Optus sent at least 25 service communications to Consumer 9 in relation to debts owing on the account linked to the second contract.
2. Between 30 March 2022 and 30 August 2022, Optus sent multiple payment requests to Consumer 9 in respect of the Consumer 9 Contracts.
3. Between 19 April 2022 and 12 September 2022, Optus sent Consumer 9 at least six default notices in respect of the overdue debts associated with Consumer 9's accounts with Optus.
4. On 6 May 2022, a debt of $1,534.60 owed by Consumer 9 under the first contract was referred by Optus to a debt collection agency.
5. On 26 September 2022, a debt owed by Consumer 9 of $1,534.60 under the first contract was listed by Optus with a third-party credit reporting company. A default listing was made under Consumer 9's name in relation to the debts owed under this account, on the same day.
6. On 3 October 2022, a debt of $239.04 owed by Consumer 9 under the second contract was referred by Optus to a debt collection agency. A default listing was made under Consumer 9's name in relation to the debts owed under this account, although the exact date on which it was made cannot be identified.
7. In August 2023, Consumer 9 contacted a financial counsellor seeking assistance in relation to the Consumer 9 Contracts.
8. On or around 22 August 2023, the financial counsellor, on behalf of Consumer 9, made a request to Optus that Optus investigate, and provide the details of, any accounts in the name of Consumer 9.

235. On 24 August 2023, Optus sent an email to the financial counsellor which:

a. set out the two accounts in Consumer 9's name;

b. stated that the account relating to the first contract had been "in collections" since 3 February 2022 for the amount of $1,534.60;

c. stated that the account relating to the second contract had been "in collections" since 30 May 2022 for the amount of $239.04; and

d. stated that Optus would recall the charges under both accounts and the charges would be waived.

1. On or around 25 August 2023, the default listings under Consumer 9's name in respect of Consumer 9's debts to Optus were removed.
2. On 29 August 2023, the financial counsellor sent an email to Optus requesting copies of the contracts signed by Consumer 9 with Optus.
3. On 1 September 2023, Optus provided the financial counsellor with a copy of the Optus contracts signed by Consumer 9.
4. On 5 September 2023, the financial counsellor sent an email to Optus asking if Consumer 9 was eligible for compensation from Optus. The email noted that Consumer 9 is a First Nations person and is from a remote area without Optus coverage.
5. On 13 September 2023, Optus responded to the email from the financial counsellor which stated that Optus had decided to reverse all previous charges and waive all future charges incurred in relation to the contracts, and to allow the customer to keep the devices that the contracts relate to at no charge. Optus did not consider any further compensation to Consumer 9 was appropriate.
6. On 13 September 2023, the then Director of Complex and Vulnerable Care sent an email to numerous Optus Staff in which she stated:

"We are not compensating people based on race. Jason and Antony can you please review this case and ensure we have provided a fair and reasonable resolution commensurate with any gaps in the standard of telco service provided to this customer".

1.10 Consumer 10

1. Consumer 10 has impaired decision-making capacity, including because they live with cerebral palsy and attention deficit hyperactivity disorder. At all material times, Consumer 10 was unemployed, Consumer 10 had never owned or run a business and Consumer 10's sole source of income was the disability support pension from Centrelink.
2. Between 13 January 2022 and 8 April 2023, Consumer 10 entered into 24 contracts with Optus (Consumer 10 Contracts). The majority of these were entered into at the Optus Palmerston Gateway Store and Optus Casuarina Store in Darwin. The Consumer 10 Contracts were allocated across 19 separate accounts in Consumer 10's name.
3. On 13 January 2022, Optus Sales Staff at the Optus Casuarina Store sold Consumer 10 one phone, one accessories bundle and one phone or data plan under one contract (first Consumer 10 Contract). This contract had:

a. a monthly fee of $103.00;

b. a total minimum cost of $2,133.00; and

c. a total cost of $4,374.00 if the contract continued for a 36-month term (which included a one-off upgrade fee of $666).

1. On 1 February 2022, Optus Sales Staff at the Optus Palmerston Gateway Store sold Consumer 10 one watch and one watch plan under one contract (second Consumer 10 Contract). This contract had:

a. a monthly fee of $25.80;

b. a total minimum cost of $753.80; and

c. a total cost of $928.80 if the contract continued for a 36-month term.

1. On 6 April 2022, Optus Sales Staff at the Optus Palmerston Gateway Store sold Consumer 10 the one watch and one watch plan under one contract (third Consumer 10 Contract). This contract had:

a. a monthly fee of $25.80;

b. a total minimum cost of $753.80; and

c. a total cost of $1,615.20 if the contract continued for a 36-month term (which included a one-off upgrade fee of $686.40).

1. On 15 June 2022, Optus Sales Staff over the phone sold Consumer 10 one accessories bundle under one contract (fourth Consumer 10 Contract). This contract had:

a. a monthly fee of $13.32;

b. a total minimum cost of $479.52; and

c. a total cost of $479.52 if the contract continued for a 36-month term.

1. On 25 September 2022, Optus Sales Staff at the Optus Casuarina Store sold Consumer 10 one accessories bundle under one contract (fifth Consumer 10 Contract). This contract had:

a. a monthly fee of $11.94;

b. a total minimum cost of $429.84; and

c. a total cost of $429.84 if the contract continued for a 36-month term.

1. On 14 October 2022, Optus Sales Staff at the Optus Casuarina Store sold Consumer 10 one phone, one phone or data plan, and one "Upgrade and Protect" service plan under one contract (sixth Consumer 10 Contract). This contract had:

a. a monthly fee of $45.87 for the first three months;

b. a monthly fee of $60.87 thereafter;

c. a total minimum cost of $365.07; and

d. a total cost of $2,146.32 if the contract continued for a 36-month term.

1. On 28 December 2022, Optus Sales Staff at the Optus Palmerston Gateway Store sold Consumer 10 the following Optus Products and Optus Services under two business contracts (seventh and eighth Consumer 10 Contracts):

a. Seventh contract: one phone, two phone or data plans, and one "Upgrade and Protect" service plan. This contract had:

i. a monthly fee of $78.68 for the first three months;

ii. a monthly fee of $117.68 for the fourth through to twelfth month;

iii. a monthly fee of $157.68 thereafter;

iv. a total minimum cost of $1,292.48; and

v. a total cost of $5,079.48 if the contract continued for a 36-month term.

b. Eighth contract: one watch, two accessories bundles and one watch plan. This contract had:

i. a monthly fee of $45.48;

ii. a total minimum cost of $1,559.58; and

iii. a total cost of $1,637.28 if the contract continued for a 36-month term.

1. On 27 January 2023, Optus Sales Staff at the Optus Palmerston Gateway Store sold Consumer 10 the following Optus Products and Optus Services under three contracts (two of which were business contracts) (ninth, tenth and eleventh Consumer 10 Contract):

a. Ninth contract: one accessories bundle. This contract had:

i. a monthly fee of $8.32;

ii. a total minimum cost of $299.52; and

iii. a total cost of $299.52 if the contract continued for a 36-month term.

b. Tenth contract: one phone or data plan and one accessories bundle. This contract had:

i. a monthly fee of $43.42 for the first twelve months;

ii. a monthly fee of $63.42 thereafter;

iii. a total minimum cost of $334.62; and

iv. a total cost of $2,043.12 if the contract continued for a 36-month term.

c. Eleventh contract: one tablet and two phone or data plans. This contract had:

i. a monthly fee of $26.34 for the first three months;

ii. a monthly fee of $95.34 thereafter;

iii. a total minimum cost of $540.14; and

iv. a total cost of $3,225.24 if the contract continued for a 36-month term.

1. On 30 January 2023, Optus Sales Staff at the Optus Casuarina Store sold Consumer 10 the following Optus Products under four contracts (twelfth, thirteenth, fourteenth and fifteenth Consumer 10 Contracts):

a. Twelfth contract: one accessories bundle. This contract had:

i. a monthly fee of $13.32;

ii. a total minimum cost of $479.52; and

iii. a total cost of $479.52 if the contract continued for a 36-month term.

b. Thirteenth contract: one accessories bundle. This contract had:

i. a monthly fee of $8.32;

ii. a total minimum cost of $299.52; and

iii. a total cost of $299.52 if the contract continued for a 36-month term.

c. Fourteenth contract: one accessories bundle. This contract had:

i. a monthly fee of $8.32;

ii. a total minimum cost of $299.52; and

iii. a total cost of $299.52 if the contract continued for a 36-month term.

d. Fifteenth contract: one accessories bundle. This contract had:

i. a monthly fee of $8.32;

ii. a total minimum cost of $299.52; and

iii. a total cost of $299.52 if the contract continued for a 36-month term.

1. On 1 February 2023, Optus Sales Staff at the Optus Palmerston Gateway Store sold Consumer 10 one tablet and one phone or data plan under one contract (sixteenth Consumer 10 Contract). This contract had:

a. a monthly fee of $26.34;

b. a total minimum cost of $540.14; and

c. a total cost of $948.24 if the contract continued for a 36-month term.

1. On 8 February 2023, Optus Sales Staff at the Optus Palmerston Gateway Store sold Consumer 10 one modem and one internet plan under one contract (seventeenth Consumer 10 Contract). This contract had:

a. a monthly fee of $0.00 for the first month;

b. a monthly fee of $59.00 thereafter;

c. a total minimum cost of $216.00; and

d. a total cost of $865.00 if the contract continued for a 12-month term (which included a one-off cost of $216 for the modem).

1. On 9 February 2023, Optus Sales Staff at the Optus Palmerston Gateway Store sold Consumer 10 one phone, one phone or data plan, one accessories bundle and one "Upgrade and Protect" service plan under one contract (eighteenth Consumer 10 Contract). This contract had:

a. a monthly fee of $87.27 for the first three months;

b. a monthly fee of $102.27 thereafter;

c. a total minimum cost of $2,537.57; and

d. a total cost of $3,735.72 if the contract continued for a 36-month term (which included a one-off upgrade fee of $99).

1. On 12 February 2023, Optus Sales Staff at the Optus Palmerston Gateway Store sold Consumer 10 the following Optus Products under two contracts (nineteenth and twentieth Consumer 10 Contracts):

a. Nineteenth contract: one accessories bundle. This contract had:

i. a monthly fee of $5.00;

ii. a total minimum cost of $180; and

iii. a total cost of $180 if the contract continued for a 36-month term.

b. Twentieth contract: one accessories bundle. This contract had:

i. a monthly fee of $5.00;

ii. a total minimum cost of $180; and

iii. a total cost of $180 if the contract continued for a 36-month term.

1. On 17 February 2023, Optus Sales Staff at the Optus Palmerston Gateway Store sold Consumer 10 the following Optus Products under two contracts (twenty-first and twenty-second Consumer 10 Contracts):

a. Twenty-first contract: one accessories bundle. This contract had:

i. a monthly fee of $7.50;

ii. a total minimum cost of $180; and

iii. a total cost of $180 if the contract continued for a 24-month term.

b. Twenty-second contract: one accessories bundle. This contract had:

i. a monthly fee of $12.48;

ii. a total minimum cost of $299.52; and

iii. a total cost of $299.52 if the contract continued for a 24-month term.

1. On 3 March 2023, Optus Sales Staff sold Consumer 10 one phone or data plan under one contract (twenty-third Consumer 10 Contract) over the phone. This contract had:

a. a monthly fee of $29.00 for the first twelve months;

b. a monthly fee of $49.00 thereafter;

c. a total minimum cost of $29.00; and

d. a total cost of $1,477.92 if the contract continued for a 12-month term (which included a one-off upgrade fee of $1,129.92).

1. On 8 April 2023, Consumer 10 bought one phone, one mobile or data plan and one "Upgrade and Protect" service plan under one contract (twenty-fourth Consumer 10 Contract) through the Optus app. This contract had:

a. a monthly fee of $87.86 for the first three months;

b. a monthly fee of $102.86 for thereafter;

c. a total minimum cost of $1,447.96; and

d. a total cost of $3,657.96 if the contract continued for a 36-month term.

1. The seventh, eighth, ninth, tenth and twenty-fourth Consumer 10 Contracts were business contracts, which listed Consumer 10 as a sole trader with an ABN.
2. In entering into the eighteenth, nineteenth, twentieth, twenty-first and twenty-second Consumer 10 Contracts, Consumer 10 was served by her former disability carer who was an Optus Sales Staff member.
3. At no point prior to Consumer 10 signing the Consumer 10 Contracts did the Optus Sales Staff dealing with Consumer 10 in respect of the entry into each of the Consumer 10 Contracts:

a. explain the terms of the Consumer 10 Contracts to Consumer 10;

b. take steps to ensure that Consumer 10 had read and understood each of the Consumer 10 Contracts;

c. where the contract was made under a business account, explain to Consumer 10 that the contract was being made under a business account instead of a 'consumer' account; and/or

d. inform Consumer 10 of the total costs of each of the Consumer 10 Contracts or explain to Consumer 10 the ongoing costs of the Optus Products and Optus Services sold.

1. Prior to or around the time that Consumer 10 entered into the Consumer 10 Contracts, Optus Sales Staff:

a. caused Credit Check Failures, to provide Consumer 10 with more Optus Products and Optus Services than she could afford, in relation to at least ten of the Consumer 10 Contracts including:

i. on 28 December 2022, in relation to the seventh Consumer 10 Contract;

ii. on 30 January 2023, in relation to the twelfth, thirteenth, fourteenth and fifteenth Consumer 10 Contracts;

iii. on 9 February 2023, in relation to the eighteenth Consumer 10 Contract;

iv. on 12 February 2023, in relation to the nineteenth and twentieth Consumer 10 Contracts; and

v. on 17 February 2023, in relation to the twenty-first and twenty-second Consumer 10 Contracts;

b. pressured Consumer 10 into purchasing devices, accessories and services that she did not want and/or did not need and/or could not afford;

c. conducted a total of 31 credit checks in relation to the Consumer 10 Contracts, except for the twenty-third Consumer 10 Contract entered into over the phone on 3 March 2023 at which time the Optus Sales Staff member conducted only an ID check;

d. in some instances, created business accounts for Consumer 10 without her knowledge or consent and entered false information into five of the Consumer 10 Contracts and/or credit checks by claiming that Consumer 10 was a sole trader;

e. in some instances, added further personal and business accounts despite Consumer 10 already having a personal account, and no business as a sole trader;

f. in some instances, input false information into the Consumer 10 Contracts and/or credit checks, by listing a false employer for Consumer 10 called "Sports and Rec" and identifying Consumer 10 as a "Professional", when Consumer 10 was not employed; and

g. failed to obtain Consumer 10's signature on four of the Consumer 10 Contracts.

1. Further, Consumer 10's former disability carer was a member of Optus Sales Staff at the Optus Casuarina Store and Optus Palmerston Gateway Store.
2. Optus Sales Staff entered Consumer 10 into further contracts for Optus Products and Optus Services in circumstances where Consumer 10 had been issued multiple communications from Optus in relation to outstanding payments.
3. At the time of entering into the second, third, fifth, sixth, seventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, twenty-third and twenty-fourth Consumer 10 Contracts, Optus had issued numerous text messages, letters and emails to Consumer 10 regarding missed or late payment on Consumer 10 Contracts.

267. After entering the Consumer 10 Contracts:

a. monthly payments were charged to Consumer 10 by Optus; and

b. Consumer 10 could not afford to continue to pay the monthly payments under the Consumer 10 Contracts.

1. Between February 2023 and November 2023, Consumer 10 contacted Optus via its "web chat" feature, seeking to cancel services or obtain payment extensions because she could not afford to pay her Optus bills. She was told that her debt may be referred to a third-party collector.
2. On 20 March 2023, Consumer 10's father contacted the Optus Palmerston Gateway Store informing Optus Staff of Consumer 10's intellectual disability and status as a disability pensioner, stating she "has little to no concept of spending/budgeting money" and could not afford the items she had purchased from Optus. He requested that Optus stop selling items to Consumer 10. This email was forwarded by the Optus Palmerston Gateway Store to the Optus Casuarina Store requesting "a STOP SELL" on Consumer 10's account.
3. From at least April 2023, an Optus senior staff member in the role of franchise area manager knew or ought reasonably to have known of the circumstances surrounding sales to Consumer 10.
4. On 5 May 2023, Consumer 10's disability support pension account was overdrawn by $1,192.06 after Optus charged her $2,922.12 on that day.
5. On 15 May 2023, Optus was made aware of a complaint by Consumer 10's father to the TIO on Consumer 10's behalf in relation to some of the Consumer 10 Contracts.
6. From at least 17 May 2023, Optus's Advocacy Support Team knew or ought reasonably to have known of the circumstances surrounding sales to Consumer 10.
7. On 30 May 2023, the TIO complaint file was closed because Consumer 10 had revoked her father's authority to act on her behalf on 19 May 2023.
8. From 22 May 2023 to around July 2023, Consumer 10's parents assisted Consumer 10 to contact Optus and cancel a number of the Consumer 10 Contracts.
9. On 18 July 2023, Optus emailed Consumer 10 about her recently cancelled account(s) and outstanding payment due of $2,291.68. The email stated that the debt may be referred to a debt collection agency if payment was not made in seven to eight days.
10. From at least 21 July 2023, senior Optus franchise management and at least one member of the Optus Customer Success Compliance Committee were aware of the circumstances surrounding sales to Consumer 10.
11. From at least 1 August 2023, at least one member of Optus's FRM team knew or ought reasonably to have known of the circumstances surrounding sales to Consumer 10.
12. From at least 3 August 2023, Optus had identified one of Consumer 10's accounts as being impacted by the conduct the subject of the Darwin Suntel investigation (Darwin Suntel Investigation).
13. On 15 August 2023, the amount of $2,291.68 owing by Consumer 10 on one of her accounts became overdue. This account was not the account identified by the Darwin Suntel Investigation. Optus did not undertake any remediation steps in relation to this debt.
14. On 21 September 2023, Optus prepared a draft FIR in respect of the Darwin Suntel Investigation. The findings included that one account number under Consumer 10's name had been subject to Credit Check Failures, namely the manipulation of the credit check system which permitted the provisioning of more services and devices to Consumer 10 than what the credit restrictions allowed.
15. While the draft FIR correctly identified that Consumer 10 had been the subject of Credit Check Failures engaged in by Optus Sales Staff, it did not correctly identify the number of contracts and account numbers affected. Optus only identified this error in October 2024. There were at least 10 Consumer 10 Contracts across 10 accounts which were subject to Credit Check Failures, comprising of credit checks:

a. on 28 December 2022, in relation to the seventh Consumer 10 Contract;

b. on 30 January 2023, in relation to the twelfth, thirteenth, fourteenth and fifteenth Consumer 10 Contracts;

c. on 9 February 2023, in relation to the eighteenth Consumer 10 Contract;

d. on 12 February 2023, in relation to the nineteenth and twentieth Consumer 10 Contracts; and

e. on 17 February 2023, in relation to the twenty-first and twenty-second Consumer 10 Contracts.

1. At some point between 15 August 2023 and 18 January 2024, Optus sold the $2,291.68 debt owed by Consumer 10 to a factoring agency.
2. In March 2024, Consumer 10's debt was bought back from the factoring agency. By 28 November 2024, Optus had waived all of Consumer 10's outstanding debts.

1. Consumer 11 is a First Nations woman. At all material times, Consumer 11 was a pensioner.
2. On 16 February 2022, Optus Sales Staff at the Optus Arndale Store sold Consumer 11 the following Optus Products and Optus Services under three contracts (Consumer 11 Contracts):

a. First contract: one phone and two phone or data plans. This contract had:

i. a monthly fee of $63.75;

ii. a total minimum cost of $334.65; and

iii. a total cost of $2,295.00 if the contract continued for a 36-month term.

b. Second contract: one phone, one accessories bundle, and one phone or data plan. This contract had:

i. a monthly fee of $190.06;

ii. a total minimum cost of $1,627.16; and

iii. a total cost of $6,842.16 if the contract continued for a 36-month term.

c. Third contract: one accessories bundle. This contract had:

i. a monthly fee of $11.10;

ii. a total minimum cost of $399.60; and

iii. a total cost of $399.60 if the contract continued for a 36-month term.

287. On 17 February 2022, Optus issued a bill to Consumer 11 for a total amount of $399.76.

1. Prior to or around the time that Consumer 11 signed each of the Consumer 11 Contracts, Optus Sales Staff:

a. conducted six credit checks in relation to the Consumer 11 Contracts, five of which were approved and one of which was declined;

b. caused Credit Check Failures resulting in Consumer 11 being sold products exceeding her credit approval; and

c. did not conduct a coverage check for where Consumer 11 lived.

1. On 18 February 2022, the Senior Expert in Regulatory Compliance, Customer Resolution sent an email to numerous other Optus Staff in relation to the Consumer 11 Contracts, stating that Consumer 11 was offered 10 new service contracts, 3 devices, plus accessories bundles and Optus had not conducted a deep dive investigation into how this sale was possible in a single transaction.
2. On 7 March 2022, a Fraud Analyst at Optus issued a PAR in respect of the circumstances surrounding the Consumer 11 Contracts and those of a second consumer, Consumer 12, as part of the Second Optus Arndale Investigation, which stated that the POI had oversold 10 services to Consumer 11, which were more than they could afford to pay for, by engaging in Credit Check Failures. The PAR also noted that Consumer 11 appeared to be a First Nations person.
3. On 10 March 2022, a member of the FRM team at Optus sent an email to other Optus Staff, which stated that an Optus Sales Staff member at the Optus Arndale Store had "oversold ten (10) services to vulnerable customer, [Consumer 11]". In a further email on 11 March 2022, the same member of the FRM team at Optus stated that:

"I might just flag this issue with my manager and get back to you. Given this may show a pattern of behaviour for the franchise (we just had an issue with their staff selling to vulnerable customers in [a remote majority First Nations] region who didn't have coverage), it will be an important aspect to get clarity on and I'll need to speak it over with him".

292. On 16 June 2022, Optus issued a bill to Consumer 11 for a total amount of $3,683.92.

1. On 16 July 2022, Optus referred Consumer 11's debt of $3,683.92 to a debt collection agency despite the findings of the PAR on 7 March 2022.
2. On or around 13 December 2022, Optus sold Consumer 11's debt of $3,683.92 to a factoring agency.
3. Also on or around 13 December 2022, a default was listed of $3,683.92 with respect of Consumer 11 with credit reporting bodies.
4. On 9 January 2023, a Senior Fraud Investigator at Optus issued a FIR in respect of the circumstances surrounding the Consumer 11 Contracts, which stated:

a. that an Optus Sales Staff member at the Optus Arndale store had oversold ten services to a "potential vulnerable customer", Consumer 11;

b. that the Optus Sales Staff member did not conduct network coverage checks for Consumer 11 at her known residential location; and

c. that the Optus Sales Staff member engaged in Credit Check Failures by submitting multiple orders in quick succession to circumvent credit restrictions and provided Consumer 11 with more services and devices than she could afford to pay for.

1. Also on 9 January 2023, Consumer 11 received a letter from the factoring agency advising that Optus had assigned a debt of $3,683.92 to it, demanding repayment of the debt and advising that failure to make payment will mean further collection activity, additional charges being applied and impacts to Consumer 11's credit record.
2. Between 9 January 2023 and 15 February 2023, the factoring agency made 10 phone calls, and sent two text messages, to Consumer 11's mobile number in relation to repayment of the asserted debt.
3. Despite being aware of concerns relating to the sale to Consumer 11 in February 2022, Optus did not put a hold on collections activity in relation to the Consumer 11 Contracts until February 2023. On 20 February 2023 Optus advised the factoring agency to place a collection hold on Consumer 11's account for a period of four weeks.
4. The collections hold on Consumer 11's account was removed on 26 September 2023, and collections activity recommenced.
5. Between 28 September 2023 and 10 November 2023, the factoring agency made 17 outgoing phone calls to Consumer 11's mobile number in relation to the asserted debt, and sent an email to Consumer 11 advising that Consumer 11 could propose a payment arrangement with the factoring agency.
6. As at February 2024, Optus was yet to repurchase the debt in respect of Consumer 11 from the factoring agency or remove the default listing in respect of Consumer 11. On 6 February 2024, Optus placed a further collection hold on Consumer 11's account. On 12 February 2024, Optus indicated it was in the process of writing off Consumer 11's debt.
7. On 15 May 2024, Consumer 11 received a letter from the factoring agency advising that the debt of $3,683.92 had been assigned from the factoring agency back to Optus.

1. Consumer 12 is a First Nations man. At all material times, Consumer 12's sole source of income was Centrelink payments.
2. At as February 2022, Consumer 12 lived in a remote community in South Australia. At all material times, the Optus mobile network did not cover where Consumer 12 lived.
3. On 16 February 2022, Optus Sales Staff at the Optus Arndale Store sold Consumer 12 the following Optus Products and Optus Services under nine contracts (Consumer 12 Contracts):

a. First contract: one phone and two mobile or data plans. This contract had:

i. a monthly fee of $183.75;

ii. a total minimum cost of $454.65; and

iii. a total cost of $6,615.00 if the contract continued for a 36-month term.

b. Second contract: one phone and four phone or data plans. This contract had:

i. a monthly fee of $137.75;

ii. a total minimum cost of $408.65; and

iii. a total cost of $4,959.00 if the contract continued for a 36-month term.

c. Third contract: one phone, three data plans and two internet plans. This contract had:

i. a monthly fee of $92.75 for the first month;

ii. a monthly fee of $230.75 thereafter;

iii. a total minimum cost of $363.65 and

iv. a total cost of $8,169 if the contract continued for a 36-month term.

d. Fourth contract: one modem, one internet plan, and one phone or data plan. This contract had:

i. a monthly fee of $119.20 for the first month;

ii. a monthly fee of $188.20 for the second to twelfth months;

iii. a monthly fee of $218.00 thereafter;

iv. a total minimum cost of $1,706.20; and

v. a total cost of $4,805.40 if the contract continued for a 24-month term.

e. Fifth contract: one accessories bundle. This contract had:

i. a monthly fee of $11.10;

ii. a total minimum cost of $399.60; and

iii. a total cost of $399.60 if the contract continued for a 36-month term.

f. Sixth contract: one accessories bundle. This contract had:

i. a monthly fee of $11.10;

ii. a total minimum cost of $399.60; and

iii. a total cost of $399.60 if the contract continued for a 36-month term.

g. Seventh contract: one accessories bundle. This contract had:

i. a monthly fee of $11.10;

ii. a total minimum cost of $399.60; and

iii. a total cost of $399.60 if the contract continued for a 36-month term.

h. Eighth contract: one accessories bundle. This contract had:

i. a monthly fee of $11.10;

ii. a total minimum cost of $399.60; and

iii. a total cost of $399.60 if the contract continued for a 36-month term.

i. Ninth contract: one accessories bundle. This contract had:

i. a monthly fee of $11.10;

ii. a total minimum cost of $399.60; and

iii. a total cost of $399.60 if the contract continued for a 36-month term.

1. Prior to or around the time that Consumer 12 signed each of the Consumer 12 Contracts, Optus Sales Staff:

a. conducted 13 credit checks in relation to the Consumer 12 Contracts, 10 of which were approved and three of which were withdrawn;

b. caused Credit Check Failures, resulting in Consumer 12 being sold products exceeding his credit approval; and

c. knew where Consumer 12 lived and did not conduct a coverage check for where Consumer 12 lived.

1. On 18 February 2022, the Senior Expert in Regulatory Compliance, Customer Resolution sent an email to numerous other Optus Staff in relation to the Consumer 12 Contracts, stating that Consumer 12 was sold 12 mobile contracts (some of which included devices), 3 home wireless services, and additional accessory bundles, and Optus had not conducted an investigation into how this sale was possible in a single transaction.
2. On 7 March 2022, a Fraud Analyst at Optus issued a PAR in respect of the circumstances surrounding the Consumer 12 Contracts and Consumer 11 Contracts as part of the Second Optus Arndale Investigation, which stated that the POI had oversold 20 services to Consumer 12 who did not have coverage, and that there was Credit Check Failure conduct, resulting in Consumer 12 being provided more services than they could afford to pay for. The PAR also noted that Consumer 12 appeared to be a First Nations person residing in rural SA and may be considered vulnerable.
3. On 10 March 2022, a member of the FRM team at Optus sent the email to other Optus Staff, referred to in paragraph 291 above.
4. On 7 May 2022, Optus cancelled the Consumer 12 Contracts on the basis of non- payment of bills. At the time of cancellation, Consumer 12 had a debt of $2,382.45.
5. On 7 June 2022, Optus issued a bill to Consumer 12 for a total amount of $7,058.34.
6. On 29 June 2022, Optus referred Consumer 12's debt of $7,058.34 to a debt collection agency despite the findings of the PAR on 7 March 2022.
7. On 7 October 2022, Optus issued a bill to Consumer 12 for a total amount of $7,058.34.
8. On 19 and 20 October 2022, Optus listed a default of $7,058.34 in respect of Consumer 12 with credit reporting bodies.
9. On or around 11 November 2022, Optus sold Consumer 12's debt of $7,058.34 to a factoring agency.
10. On 2 December 2022, Consumer 12 received a letter from the factoring agency advising that Optus had assigned a debt of $7,058.34 to it, demanding repayment of the debt and advising that failure to make payment would mean further collection activity, additional charges being applied and impacts to Consumer 12's credit record.
11. Between 6 December 2022 and 9 January 2023, the factoring agency made 10 outgoing phone calls, and sent two text messages, to Consumer 12's mobile number in relation to repayment of the asserted debt.
12. On 9 January 2023, a Senior Fraud Investigator at Optus issued a FIR in respect of the circumstances surrounding the Consumer 12 Contracts, which stated:

a. that an Optus Sales Staff member at the Optus Arndale Store had oversold twenty services to "a potential vulnerable customer", Consumer 12;

b. that the Optus Sales Staff member did not conduct network coverage checks for Consumer 12 at his known residential location, and Optus coverage maps showed that Consumer 12 did not have Optus coverage at his residential address; and

c. that the Optus Sales Staff member had engaged in Credit Check Failures by submitting multiple orders in quick succession to circumvent credit restrictions and provided Consumer 12 with more services and devices than he could afford to pay for.

1. On 12 January 2023, the Director of Quality Control exchanged emails with another Optus Staff member, which recorded their understanding that Consumer 12's debt had been referred to debt collectors and that those debt collectors would be pursuing Consumer 12.
2. Despite being aware of concerns relating to the sale to Consumer 12 in February 2022, Optus did not put a hold on collections activity in relation to the Consumer 12 Contracts until February 2023. On 20 February 2023, Optus advised the factoring agency to place a collection hold on Consumer 12's account for a period of four weeks.
3. On or around 23 May 2023, Optus re-purchased Consumer 12's debt of $7,058.34 from the factoring agency, and cleared the default that had been listed in respect of debts owed under Consumer 12's account with Optus advising that the "customer was sold services under 'unconscionable selling practices as a vulnerable customer'" and confirming Consumer 12 was not liable for the debt.
4. Also on or around 23 May 2023, Optus made a request to the credit reporting bodies that the default of $7,058 in respect of Consumer 12 be removed.
5. On 2 August 2023, Consumer 12 received a letter from the factoring agency advising that the debt of $7,058.34 had been assigned from the factoring agency back to Optus.
6. On 12 February 2024, Optus cleared Consumer 12's debt in respect of the Consumer 12 Contracts from Consumer 12's account with Optus.

1. Consumer 13 is a First Nations woman. English is Consumer 13's third language. At all material times:

a. Consumer 13 lived in a remote community in the NT;

b. Consumer 13 sometimes travelled to Darwin for periods of time;

c. Consumer 13's main source of income was Centrelink payments, with some income from seasonal casual work at a community base station and part time work as an aged care worker; and

d. the Optus mobile network did not cover where she lived in the NT.

1. Optus has identified Consumer 13 as one of the consumers affected by the Darwin Inappropriate Selling Conduct (as defined in paragraph 347).
2. On 11 May 2022, Consumer 13 attended the Optus Casuarina Store with her daughter to inquire about getting a phone. During Consumer 13's visit:

a. Optus Sales Staff told Consumer 13 that the phone came in a "bundle" with a watch;

b. Optus Sales Staff gave Consumer 13 the impression that she needed to take the phone as part of a bundle and could not get it separately, even though she informed Optus she did not want the watch;

c. Optus Sales Staff did not inform Consumer 13, and Consumer 13 did not understand, that she would need to pay for the watch; and

d. Optus Sales Staff informed Consumer 13 that there was no Optus coverage where she lived, but told her that if she was coming and going between where she lived and Darwin, the phone would work when she was in Darwin.

1. On 11 May 2022, Optus Sales Staff at the Optus Casuarina Store sold Consumer 13 the following Optus Products and Optus Services under two contracts (Consumer 13 Contracts), linked to two separate accounts in Consumer 13's name:

a. First contract: one phone, one phone or data plan, one "Upgrade and Protect" service plan, one watch and one watch plan. This contract had:

i. a monthly fee of $154.38;

ii. a total minimum cost of $2,679.98; and

a total cost of $5,557.68 if the contract continued for a 36-month term.

b. Second contract: two accessories bundles. This contract had:

i. a monthly fee of $26.64;

ii. a total minimum cost of $959.04; and

a total cost of $959.04 if the contract continued for a 36-month term.

1. Prior to or around the time that the Consumer 13 Contracts were entered into on 11 May 2022, Optus Sales Staff:

a. conducted two credit checks in relation to the Consumer 13 Contracts;

b. caused Credit Check Failures, resulting in Consumer 13 being sold products exceeding her credit approval; and

c. submitted that Consumer 13's income was part time with the occupation of "manager", which was not correct.

331. After entering into the Consumer 13 Contract:

a. once she returned home, Consumer 13 replaced the Optus SIM card on the phone with a Telstra SIM card;

b. Consumer 13 never used the Optus mobile phone plan or the data plan associated with the Apple Watch; and

c. between May 2022 and February 2023, Optus issued Consumer 13 with bills in relation to the second contract, but Consumer 13 never made any payments to Optus.

1. On 12 July 2022, Optus referred a debt of $2,594.98 owed by Consumer 13 in relation to the first contract to a debt collection agency, for debt collection.
2. On 26 September 2022, Optus referred a debt of $959.04 owed by Consumer 13 in relation to the second contract to another debt collection agency for debt collection.
3. On 28 October 2022, a default was listed under Consumer 13's name in relation to the first contract.
4. On 1 December 2022, Optus sold Consumer 13's debt of $2,594.98 in relation to the first contract to a factoring agency.
5. On 31 December 2022, Optus sent a letter to Consumer 13 stating that unless Consumer 13 paid $959.04 within 14 days of the date of the letter, Optus may take steps to list a default with credit reporting bodies in respect of the second contract.
6. On a date that Optus is unable to identify, a default was listed under Consumer 13's name in relation to the contract under Consumer 13 in respect of the second contract.
7. On 1 February 2023, Optus sold Consumer 13's debt of $959.04 in respect of the second contract to a factoring agency.
8. In around May 2023, a financial counsellor, contacted Optus on behalf of Consumer 13 regarding Consumer 13's debts to Optus.
9. When the financial counsellor called the Optus call centre, she was told by the Optus Staff member on the phone that Consumer 13 had signed the contract, and was therefore liable for the debt.
10. On 3 May 2023, the financial counsellor emailed an Optus Complaints Manager, with an authority to act on behalf of Consumer 13, asking for Optus to investigate the "alarming" behaviour by Optus Sales Staff in making sales to Consumer 13.
11. On 30 June 2023, the financial counsellor emailed Optus stating that Consumer 13 was sold products that were not fit for use as there is no Optus coverage at Consumer 13's location, Consumer 13 was on Centrelink payments, and Consumer 13 did not speak proper English.
12. In or around July 2023, the financial counsellor contacted an Optus Complaints Manager in relation to Consumer 13's debts. On 8 August 2023, after speaking with Consumer 13, the financial counsellor told the Optus Complaints Manager that:

a. Consumer 13 had visited the Optus Casuarina Store to look at phones and, when she asked Optus Sales Staff about a phone, Optus Sales Staff told Consumer 13 that the phone came in a "bundle" with a watch;

b. Optus Sales Staff had given Consumer 13 the impression that she needed to take the phone as part of a bundle and could not get it separately;

c. Consumer 13 had not understood that she had to pay for both the phone and the watch;

d. Optus Sales Staff had informed Consumer 13 that there was no Optus coverage where she lived, but told her that if she was coming and going between where she lived and Darwin, the phone would work when she was in Darwin; and

e. Consumer 13 no longer had the devices as they were stolen when her house was broken into.

1. By August 2023, Optus was aware that Optus Sales Staff engaged in Credit Check Failures in relation to the Consumer 13 Contract to provide Consumer 13 with "2 additional $480 SPOTS above the initial limit set by the credit team".
2. On 9 August 2023, the Optus Complaints Manager sent an email to Optus Staff regarding Consumer 13's account due to her concern that Consumer 13 may be impacted by the Darwin Suntel Investigation.
3. On or around 14 or 15 August 2023, Optus agreed to cancel Consumer 13's contracts, waive the charges associated with those contracts and remove the default listings under Consumer 13's name.
4. On 15 August 2023, Optus sent an email to the financial counsellor confirming that with respect to both of Consumer 13's accounts:

a. the accounts had been cancelled and there were no active services on the accounts;

b. the charge of $2,594.98 on one account (in relation to the first contract) had been waived;

c. the charge of $959.04 on the second account (in relation to the second contract) had been waived; and

d. the request for default removal had been placed for both accounts.

1.14 Consumer 14

1. Consumer 14 is a First Nations person. English is not Consumer 14's first language. At all material times:

a. Consumer 14 lived in a remote community in the N T;

b. Consumer 14 was a low income earner, earning between $1,000 and $1,200 per fortnight as well as receiving an additional $100 per fortnight from Centrelink for her 16 year old child. Consumer 14 also occasionally received Newstart or JobSeeker payments, roughly every six weeks, when her pay reduced; and

c. the Optus mobile network did not cover where she lived.

1. Optus has identified Consumer 14 as one of the consumers affected by the Darwin Inappropriate Selling Conduct (as defined in paragraph 347).
2. On 25 May 2022, Consumer 14 attended the Optus Casuarina Store. During her visit, Optus Sales Staff:

a. were told by Consumer 14 that she wanted a phone for her child so that her child could contact her from boarding school;

b. asked Consumer 14 about her living costs, and Consumer 14 told Optus Sales Staff that she had costs of about $500 per fortnight. Consumer 14 also gave Optus Sales Staff her Centrelink customer reference number to look up her income, and showed them an electronic payslip;

c. told Consumer 14 that she could make more purchases up to a certain amount, even though Consumer 14 did not wish to buy anything else;

d. told Consumer 14 that, if she bought one phone, she would get a discount on a second phone, and that if she bought two phones she might as well buy two more phones;

e. suggested that Consumer 14 get accessories, such as different types of speakers and cases, which she did not need;

f. made Consumer 14 feel pressured to make purchases of more than just the one phone; and

g. obtained Consumer 14's signature on some papers whereby Consumer 14 entered into a contract with Optus.

1. On 25 May 2022, Optus Sales Staff at the Optus Casuarina Store sold Consumer 14 four phones, four phone or data plans, four accessories bundles and two "Upgrade and Protect" service plans under one contract (Consumer 14 Contract). This contract had:

a. a monthly fee of $265.02;

b. a total minimum cost of $4,263.42; and

c. a total cost of $9,540.72 if the contract continued for a 36-month term.

1. Prior to or around the time that Consumer 14 signed the Consumer 14 Contract on 25 May 2022, Optus Sales Staff:

a. conducted one credit check in relation to the Consumer 14 Contract; and

b. either did not conduct a coverage check for where Consumer 14 lived, or ignored the coverage check in selling the Optus Products and Optus Services.

1. At no point prior to Consumer 14 signing the Consumer 14 Contract did Optus Sales Staff:

a. tell Consumer 14 the total cost of the Consumer 14 Contract;

b. explain the ongoing cost of the Optus Products and Optus Services included in the Consumer 14 Contract; and/or

c. ensure that Consumer 14 understood the terms of the Consumer 14 Contract.

354. After entering into the Consumer 14 Contract:

a. Consumer 14 did not have Optus network coverage where she lived, save for some usage from her child at boarding school in Darwin, and did not otherwise use the data in the plans she was sold; and

b. Consumer 14 was charged monthly payments by Optus, but Consumer 14 struggled with the monthly payments under the Consumer 14 Contract.

1. On 14 September 2022, a debt recovery agency sent Consumer 14 a payment request requiring her to pay a sum owing to Optus of $4,075.92.
2. On 25 September 2022, Optus sent Consumer 14 a payment request requiring her to pay outstanding charges on her account totalling $4,055.92.
3. On 29 September 2022, Consumer 14 spoke to a financial counsellor to obtain help in relation to her debts to Optus.
4. On 13 October 2022, the financial counsellor contacted Optus on behalf of Consumer 14 requesting Optus cease collections activity while they investigated the matter and communicate with them rather than Consumer 14 regarding the Consumer 14 Contract.
5. On 14 October 2022, a similar request was made by the financial counsellor to the debt recovery agency.
6. On or around 7 November 2022, the debt recovery agency returned Consumer 14's debt back to Optus.
7. On 7 December 2022, Optus lodged a default under Consumer 14's name in respect of Consumer 14's account with Optus. Optus told the financial counsellor that Consumer 14's debt could only be waived, and her default could only be removed, if the four devices purchased under the Consumer 14 Contract were returned to Optus.
8. Following a phone call between Optus Staff and the financial counsellor, on or around 31 January 2023, Optus waived the accessory payout costs and acknowledged "[t]here was 4 accessories upsold at point of sale". Optus declined to waive Consumer 14's remaining balance in respect of the two devices.
9. On or around 21 February 2023, Consumer 14 entered into a payment plan in respect of the remaining two devices.
10. On or around 8 August 2023, Optus identified Consumer 14 as being one of the consumers impacted by the conduct the subject of the Darwin Suntel Investigation.
11. On 9 February 2024, as part of the Darwin Suntel Investigation, Optus identified that Consumer 14's account had not been remediated.
12. On 12 February 2024, Optus requested that the default in respect of Consumer 14 be removed, and on 13 February 2024, Optus reduced Consumer 14's account balance to zero and removed it out of "collections".

367. On 5 April 2024, Optus confirmed in a letter to Consumer 14 that it would be:

a. cancelling any repayment plan for a device or accessory that exceeded Optus's usual credit assessment limits;

b. crediting the amount of those devices or accessories that exceeded Optus's usual credit assessment limits to Consumer 14's Optus account;

c. stopping all collection activities in relation to Consumer 14's services; and

d. permitting Consumer 14 to keep all devices and accessories purchased in connection with the services.

1. The 5 April 2024 letter also stated that Optus had processes in place to ensure its customers have a reasonable capacity to pay, however, in the case of Consumer 14 these processes were not followed properly.

1. Consumer 15 is a First Nations person. Consumer 15's first language is not English and his English language skills are very limited. He understands some basic words in spoken English, but cannot read or write in English.

370. At all material times:

a. Consumer 15 spent extended periods of time in regional NT due to family reasons;

b. the Optus mobile network did not cover the area in regional NT that Consumer 15 spent periods of time; and

c. Consumer 15's only income was welfare payments from Centrelink.

1. On 19 July 2022, Consumer 15 attended the Optus Cairns Store. He wanted to purchase a new phone outright, into which he would place his existing Telstra SIM Card.

372. During his visit to the Optus Cairns Store:

a. an Optus Sales Staff member approached Consumer 15 while he was looking around the store, and Consumer 15 pointed to a Samsung phone that he wished to purchase;

b. the Optus Sales Staff member asked Consumer 15 for his ID, address and phone number. Consumer 15 understood this part of the conversation and gave the Optus Sales Staff member his ID, address and phone number;

c. Consumer 15 told the Optus Sales Staff member that he was not working, that he was on Centrelink and how much he received in payments;

d. Consumer 15 did not understand most of the things that the Optus Sales Staff member told him, including what a "plan" was;

e. the Optus Sales Staff member gave Consumer 15 a watch, telling him it connected to the Samsung phone. Consumer 15 did not want a watch, had not asked for a watch and did not know he was being charged for the watch;

f. the Optus Sales Staff member read out something on a screen and asked Consumer 15 to sign his name. Consumer 15 did not understand most of what was said, but wrote his name on the screen; and

g. the Optus Sales Staff obtained Consumer 15's signature on six contracts.

1. On 19 July 2022, Optus Sales Staff at the Optus Cairns Store sold Consumer 15 the following Optus Products and Optus Services under seven contracts (Consumer 15 Contracts):

a. First contract: two phones, one phone or data plan (with two SIMs), one watch, one watch plan and two "Upgrade and Protect" service plans. This contract had:

i. a monthly fee of $243.80;

ii. a total minimum cost of $2,261.90; and

iii. a total cost of $8,776.80 if the contract continued for a 36-month term.

b. Second contract: one phone or data plan (with two SIMs). This contract had:

i. a monthly fee of $165;

ii. a total minimum cost of $165; and

iii. a total cost of $1,980 if the contract continued for a 12-month term.

c. Third contract: one accessories bundle. This contract had:

i. a monthly fee of $11.10;

ii. a total minimum cost of $399.60; and

iii. a total cost of $399.60 if the contract continued for a 36-month term.

d. Fourth contract: one accessories bundle. This contract had:

i. a monthly fee of $11.10;

ii. a total minimum cost of $399.60; and

iii. a total cost of $399.60 if the contract continued for a 36-month term.

e. Fifth contract: one accessories bundle. This contract had:

i. a monthly fee of $11.10;

ii. a total minimum cost of $399.60; and

iii. a total cost of $399.60 if the contract continued for a 36-month term.

f. Sixth contract: one accessories bundle. This contract had:

i. a monthly fee of $11.10;

ii. a total minimum cost of $399.60; and

iii. a total cost of $399.60 if the contract continued for a 36-month term.

g. Seventh contract: one accessories bundle. This contract had:

i. a monthly fee of $11.10;

ii. a total minimum cost of $399.60; and

iii. a total cost of $399.60 if the contract continued for a 36-month term.

374. The third to seventh contracts are the Consumer 15 Accessories Contracts.

1. The Consumer 15 Contracts and Consumer 15 Accessories Contracts were linked to at least six separate accounts in Consumer 15's name.
2. On 19 July 2022, Optus Sales Staff submitted six external credit checks and one internal credit check in relation to Consumer 15 in quick succession (between 12:04 AEST and 13:15 AEST) each time approving Consumer 15 for between $120 to $500 of services and between $0 and $2,110 of devices in order to circumvent Optus's credit check processes. Optus Sales Staff also input false information on the credit checks, by listing Consumer 15's employment as "Professional".
3. This conduct constituted Credit Check Failures by Optus Sales Staff and resulted in Consumer 15 being sold Optus Products and Optus Services of a value exceeding his credit limit.
4. At no point prior to Consumer 15 entering into the Consumer 15 Contracts on 19 July 2022 did the Optus Sales Staff:

a. ensure Consumer 15 understood the Consumer 15 Contracts;

b. explain the terms of the Consumer 15 Contracts to Consumer 15 in a manner he would be capable of understanding in light of his limited English language skills;

c. ensure Consumer 15 understood that he was purchasing two mobile phones, two Upgrade and Protect services, two Optus Plus Family Plans capable of accommodating four services each, a Samsung Watch and associated data plan, and five accessories bundles as part of the Consumer 15 Contracts; and/or

d. ensure Consumer 15 understood the total cost of the Consumer 15 Contracts or explain to Consumer 15 the ongoing cost of the Optus Products and Optus Services provided.

1. Prior to or around the time that Consumer 15 signed the Consumer 15 Contracts on 19 July 2022, the Optus Sales Staff:

a. conducted seven credit checks and one ID check in relation to the Consumer 15 Contracts, all of which were approved;

b. caused Credit Check Failures, resulting in Consumer 15 being sold products exceeding his credit approval;

c. entered false information on the Consumer 15 Contracts, namely an email address for Consumer 15 that was not his email address;

d. input false information into the Consumer 15 Contracts and/or credit checks by listing an occupation for Consumer 15, although Consumer 15 was not employed and was reliant on Centrelink as his sole source of income; and

e. created six accounts under Consumer 15's name.

380. At the time of entering the Consumer 15 Contracts, Consumer 15:

a. did not know or understand that he was purchasing all of the Optus Products and Optus Services specified under the Consumer 15 Contracts;

b. did not know or understand the total cost of the Consumer 15 Contracts; and

c. did not know that Optus Sales Staff had created six accounts under his name.

381. After entering into the Consumer 15 Contracts:

a. Consumer 15 removed his Optus SIM card from his phone for a few months because he knew there was no Optus coverage where he was visiting (which was a remote community). He was unaware that Optus was charging him for Optus Services when he was not using the Optus SIM card;

b. Consumer 15 never used the Samsung Watch and was unaware that Optus was charging him for it;

c. Optus sent letters and text messages to Consumer 15 in relation to his accounts. Consumer 15 did not see any letters sent to his address in Darwin until he returned to Darwin (following his visit to a remote community) a few months later, and could not read the letters; and

d. Consumer 15 did not make any payments towards the Consumer 15 Contracts.

1. In respect of Consumer 15's account under which Consumer 15 was sold Optus Products and Optus Services:

a. on 23 July 2022, the account entered collections status;

b. on 24 August 2022, the account and related contract was cancelled;

c. on 19 September 2022, Optus issued a Payment Request to Consumer 15 in the sum of $2,048.04;

d. on 26 October 2022, Optus referred the debt to a debt collection agency;

e. a default listing was placed in respect of the debt on 13 February 2023 and 14 February 2023 (with two different credit reporting bodies);

f. between 31 March 2023 and 6 April 2023, the debt was sold to a factoring agency;

g. as at 6 September 2024:

i. Optus had not requested that the default listing be removed; and

ii. the debt had not been repurchased by Optus.

383. In respect of the five Consumer 15 Accessories Contracts:

a. on 3 September 2022, those five accounts entered collections status;

b. on 19 November 2022, Optus issued bills for each of those five accounts, each for $399.60;

c. on 5 January 2023, Optus referred each of the five debts to debt collection agencies;

d. default listings were placed in respect of each of the debts on 27 April 2023 and 28 April 2023 (with two different credit reporting bodies);

e. on 18 July 2023, each of the five accounts were sold to a factoring agency;

f. as at 6 September 2024:

i. Optus had not requested that the default listings under Consumer 15's name be removed; and

ii. none of the five debts had been repurchased by Optus.

1. Between April 2023 to December 2023, two factoring agencies contacted or attempted to contact Consumer 15 by way of multiple letters, text messages, emails and calls.
2. On 22 January 2024, Consumer 15 spoke to a financial counsellor to obtain help in relation to the accounts he had with Optus, as well as debts he may have had with other providers.
3. On 22 January 2024, the financial counsellor contacted Optus on behalf of Consumer 15 requesting that Optus confirm whether Consumer 15 had any Optus accounts and to provide copies of Consumer 15's Optus contract(s), employment/credit assessment, account statements, and file notes, as well as details of whether any debt had been sold to a creditor and, if so, which creditor, when, and the amount sold. The financial counsellor provided Consumer 15's name and date of birth as identifiers, and an authority to act.
4. On the same day, 22 January 2024, Optus replied to the financial counsellor, directing her to Customer Support "[d]ue to the nature of your request".
5. Between 26 January 2024 and 9 February 2024, members of Optus senior management and Optus management discussed the conduct relating to Consumer 15.
6. On 29 January 2024, an Optus Staff member stated in an email that it appeared that there had been Credit Check Failure conduct in relation to Consumer 15, because a total of 8 orders had been submitted and auto approved between 12:04 and 13:15 on the same day.
7. On 1 February 2024, an Optus Staff member stated in an email that it appeared the orders had exceeded Consumer 15's credit limit.
8. On 9 February 2024, an Optus Staff member (who had been asked to investigate whether there were Credit Check Failures in relation to Consumer 15) concluded that Credit Check Failures had occurred. The other Optus Staff on the email chain who replied accepted this conclusion.
9. As at 12 February 2024, Optus's consideration of remediation in relation to Consumer 15 did not extend to buying back debts sold to the factoring agencies, or removal of adverse default listings in relation to Consumer 15. Consideration of buying back the debts was raised internally by an Optus Staff member on 15 February 2024.
10. As at 21 February 2024, Optus had not provided the financial counsellor with the information sought in relation to Consumer 15. On 21 February 2024, the financial counsellor emailed Optus and again sought the relevant documents and information in relation to Consumer 15.
11. On 24 February 2024, an Optus Customer Support Consultant replied to the financial counsellor stating: "Based on the information provided, we were unable to locate any accounts. Please provide us any relevant account numbers". This was after the point in time that Optus had determined that Consumer 15 was eligible for remediation due to overselling and Credit Check Failures.
12. On 28 February 2024, Optus reversed its internal write off of Consumer 15's debts under the six accounts and seven contracts, "as per request from CRT as Balance will be credited for Buy Back".

396. On 1 March 2024:

a. Optus responded to the financial counsellor with an offer to:

i. remove the default listings; and

ii. waive the charges under the five accessory contracts;

b. Optus declined to waive Consumer 15's outstanding charges in respect of the devices unless they were returned by Consumer 15 "in good working conditions + no physical damages"; and

c. Optus did not provide the documents sought by the financial counsellor.

1. On 15 March 2024, the financial counsellor sent an email again asking for documents relevant to Consumer 15's accounts with Optus.
2. On 11 April 2024, the financial counsellor sent a further email to Optus requesting the original contract, employment/credit assessment, account statements and file notes in respect of Consumer 15's accounts. On or around the same day, Optus provided to the financial counsellor copies of seven contracts, six "final bills" and Customer Care Notes in respect of Consumer 15's accounts. On the same day, the financial counsellor again sought copies of any credit checks conducted in respect of Consumer 15 by Optus.
3. On 9 May 2024, an Optus Staff member responded to the financial counsellor, stating in respect of her request for credit checks that the information was not readily available.
4. On 17 May 2024, the financial counsellor responded to Optus and reiterated the request for copies of the credit checks. On 4 July 2024, the financial counsellor sent a further email to Optus following up the email of 17 May 2024 and requested that a response be provided within 7 days.
5. On 11 July 2024, an Optus Staff member provided the credit check in respect of Consumer 15 to the financial counsellor by email.
6. On 6 August 2024, both the factoring agencies removed the default listings under Consumer 15's name relating to the Consumer 15 Contracts.
7. As at 8 August 2024, Consumer 15 owed Optus $4,046.04, no remediation steps had been taken, Optus was assessing the account, and Optus had not waived Consumer 15's debt.
8. As at 6 September 2024, Optus had not sought to remove the defaults listed under Consumer 15's name in respect of the debts owed under the Consumer 15 Contracts, and none of the six debts sold to factoring agencies had been repurchased or sought to be repurchased by Optus.

1. Consumer 16 was around 79 years old in August 2022. At this time, she was experiencing symptoms of dementia such that she would often get easily confused and overwhelmed, experienced memory loss and had difficulty understanding conversations.
2. Consumer 16 lives alone and her only income is the pension.
3. On or around 13 August 2022, Consumer 16 attended the Optus West Lakes Store to enquire whether her existing phone, which was damaged, could be fixed. At that point in time, she owned her phone outright and had an Optus monthly phone plan which had a fee of $39 per month.

408. During her visit to the Optus West Lakes Store on or around 13 August 2022:

a. Optus Sales Staff told Consumer 16 that they could not fix her existing phone and that Consumer 16 would need to get a new phone;

b. Consumer 16 felt pressured to purchase the new top of the range phone that the Optus Sales Staff showed her;

c. Optus Sales Staff performed an internal credit check which was approved;

d. Optus Sales Staff continued with the sale even after Consumer 16 told them she had doubts about it;

e. Optus Sales Staff told Consumer 16 that she could return the new phone if she had trouble with it and swap it for another device; and

f. Consumer 16 signed a contract with Optus for a device plan and associated data plan/service.

1. On or around 13 August 2022, Optus Sales Staff at the Optus West Lakes Store sold Consumer 16 one phone and one phone or data plan under one contract (Consumer 16 Contract). This contract had:

a. a monthly fee of $98.96;

b. a total minimum cost of $1,847.56; and

c. a total cost of $3,562.56 if the contract continued for a 36-month term.

1. Prior to or around the time that Consumer 16 signed the Consumer 16 Contract, Optus Sales Staff:

a. told Consumer 16 she needed to purchase a new phone, and made Consumer 16 feel like she had no other option but to purchase that phone;

b. conducted one credit check in relation to the Consumer 16 Contract;

c. did not explain to Consumer 16 that she could have purchased a cheaper phone; and

d. told Consumer 16 that she could exchange the new phone and did not explain to Consumer 16 that she would not be able to do so within the first month of the Consumer 16 Contract or that she would be charged a fee to do so.

411. After entering into the Consumer 16 Contract:

a. Consumer 16 did not understand how to operate the new phone and could not afford the ongoing monthly payments under the Consumer 16 Contract;

b. on 29 August 2022, Consumer 16 returned to the Optus West Lakes Store with her brother, who told the Optus Sales Staff that Consumer 16 did not need a new phone like the phone she had purchased, that Consumer 16 did not understand how to operate the new phone, and that Consumer 16 was on a pension and could not afford the new phone; and

c. during the store visit on 29 August 2022, Optus Sales Staff told Consumer 16 and her brother that they could swap the phone but that Consumer 16 would need to pay a $100 fee and wait until after the first month of the Consumer 16 Contract to do so.

1. On 29 August 2022, Consumer 16's brother made a complaint to the TIO and requested that the Consumer 16 Contract be cancelled and that Consumer 16 be able to change to a less expensive device and associated data plan or service.
2. On 1 September 2022, Consumer 16 called Optus to authorise her brother to act in relation to her Optus account. During the call, Optus Sales Staff offered an additional mobile SIM plan to Consumer 16, at 75% of the usual cost.
3. On 1 September 2022, in response to the TIO complaint, Optus advised Consumer 16 and her brother that she could return the new phone, choose a different phone and have an adjustment applied for the previous handset charges.
4. On or around 6 September 2022, Consumer 16 and her brother attended the Optus Brickworks Store and selected a less expensive phone.
5. On 8 September 2022, Optus issued a new contract for Consumer 16 comprising a $19.40 monthly device plan for the less expensive phone over a term of 36 months and a $49 monthly associated data/service plan.
6. On or around 8 September 2022, Consumer 16 and her sister attended the Optus Brickworks store and collected the new phone.
7. On or around 14 September 2022, Consumer 16 and her sister posted the phone purchased under the Consumer 16 Contract back to Optus.

1. Consumer 17 is a First Nations person. English is not Consumer 17's first language. At all material times:

a. Consumer 17 lived in a remote community in the NT, where there is no Optus coverage; and

b. Consumer 17's only income was Centrelink payments.

1. On or around 18 November 2022, Consumer 17 attended the Optus Palmerston Gateway Store because she wanted to know if she owed a debt to Optus. During her visit, Optus Sales Staff:

a. asked Consumer 17 if she wanted a new mobile phone. Consumer 17 told Optus Sales Staff she wanted a new phone as a birthday present for her son;

b. told Consumer 17 she could have additional accessories, including a smart watch, speakers and other things, even though Consumer 17 did not want a smart watch, speakers and other things;

c. pressured Consumer 17 to take extra accessories in addition to the mobile phone she asked for;

d. asked Consumer 17 about her income details. Consumer 17 told the Optus Sales Staff she had Centrelink and gave Optus Sales Staff her Centrelink customer reference number; and

e. obtained Consumer 17's signature on a small black screen, which resulted in Consumer 17 entering into five contracts with Optus.

1. On or around 18 November 2022, Optus Sales Staff at the Optus Palmerston Gateway Store sold Consumer 17 the following Optus Products and Optus Services under five contracts (Consumer 17 Contracts) linked to at least five separate accounts in Consumer 17's name:

a. First contract: one phone, two phone or data plans, one watch, one watch plan and one "Upgrade and Protect" service plan. This contract had:

i. a monthly fee of $154.61;

ii. a total minimum cost of $2,155.21; and

iii. a total cost of $5,565.96 if the contract continued for a 36-month term.

b. Second, third, fourth and fifth contracts: each one accessories bundle. These contracts each had:

i. a monthly fee of $8.32;

ii. a total minimum cost of $299.52; and

iii. a total cost of $299.52 if the contract continued for a 36-month term.

1. At the time of entering into the Consumer 17 Contracts, Consumer 17 did not want an Optus SIM card as she knew that the Optus network did not cover where she lived.
2. On 18 November 2022, Optus Sales Staff submitted 2 external and 4 internal credit checks in relation to Consumer 17 in quick succession (between 14:24 AEST and 15:08 AEST) each time approving Consumer 17 for between $200 to $250 of services and $300 of devices (noting that one credit check declined) in order to circumvent Optus's credit check processes. Optus Sales Staff input false information on the credit checks by listing Consumer 17's occupation as "Professional" or "Not Supplied" and residential status as "Rents" or "Not provided". Optus Sales Staff also input false information onto the Consumer 17 Contracts and credit checks, by listing a false employer for Consumer 17. This conduct constituted Credit Check Failures by Optus Sales Staff.
3. A separate credit check performed by Optus Staff dated 16 November 2022 had identified that Consumer 17 was unemployed.
4. At no point prior to Consumer 17 signing the Consumer 17 Contracts did the Optus Sales Staff:

a. provide a copy of the Consumer 17 Contracts to Consumer 17 or ensure she read the Consumer 17 Contracts;

b. explain the terms of the Consumer 17 Contracts to Consumer 17;

c. explain to Consumer 17 that she was purchasing two mobile phone plans, an Apple Watch and associated data plan, and accessories as part of the Consumer 17 Contracts; and/or

d. inform Consumer 17 of the total cost of the Consumer 17 Contracts or explain to Consumer 17 the ongoing cost of the Optus Products and Optus Services provided.

1. Prior to or around the time that Consumer 17 signed the Consumer 17 Contracts, the Optus Sales Staff:

a. conducted six credit checks in relation to the Consumer 17 Contracts, two of which were declined;

b. caused Credit Check Failures;

c. input false information onto the Consumer 17 Contracts and credit checks, by listing a false employer;

d. entered false information on the Consumer 17 Contracts, namely an email address for Consumer 17 that was not her email address; and

e. either did not conduct a coverage check for where Consumer 17 lived, or ignored the coverage check in selling the Optus Products and Optus Services.

427. At the time of entering the Consumer 17 Contracts, Consumer 17 did not know that:

a. she was purchasing two mobile phone plans, a smart watch and associated data plan, and accessories as part of the Consumer 17 Contracts; and

b. the total cost of the Consumer 17 Contracts.

428. After entering into the Consumer 17 Contracts:

a. Consumer 17 did not use the data in the mobile phone plans that she was sold, including because she did not have Optus network coverage where she lived; and

b. Consumer 17 was charged monthly payments by Optus in accordance with the Consumer 17 Contracts, but Consumer 17 could not afford the monthly payments and made no payments towards the Consumer 17 Contracts.

1. On 18 January 2023, Optus sent Consumer 17 a payment request requiring her to pay the outstanding charges totalling $2,029.46. On 18 February 2023, Optus sent Consumer 17 a further payment request.
2. In or around January or February 2023, Consumer 17 spoke to a financial counsellor to obtain help in relation to the services she had with Optus and Telstra.
3. On 10 February 2023, the financial counsellor contacted Optus on behalf of Consumer 17 requesting Optus cease collections activity while they investigated the matter and communicate with them rather than Consumer 17 regarding the Consumer 17 Contracts.

432. After contact by the financial counsellor:

a. on 24 February 2023, a temporary seven day collection hold was placed on Consumer 17's account;

b. on 8 March 2023, Optus sold Consumer 17's debt to a factoring agency. Optus had resumed collections activity with respect to Consumer 17's debt on the basis that Optus could not make contact with the financial counsellor since 24 February 2023. This was despite the financial counsellor emailing Optus on 27 February 2023 advising that they were unable to access some of the files provided by Optus, and requesting the provision of those documents, to which Optus did not reply;

c. Consumer 17 received text messages from the factoring agency demanding repayment of the debt in the amount of $2,409.76;

d. on 4 May 2023, Optus advised the financial counsellor that Consumer 17's debt had not been sold to the factoring agency, which was false;

e. on 7 June 2023, the factoring agency advised the financial counsellor it had sold Consumer 17's debt back to Optus; and

f. Consumer 17 continued to be billed by Optus until June 2023 and received multiple text messages from Optus demanding payment on her accounts.

1. On 14 June 2023, in response to further contact from the financial counsellor, Optus offered to waive the charges from the accessory contracts "due to the upselling of accessories when [Consumer 17] attended the store". Optus declined to waive the payout fees for the phone and watch, but indicated it would not pursue the debt.
2. On or around 14 July 2023, with the support of a staff member of the financial counsellor, Consumer 17 made a complaint to the TIO.
3. On 4 August 2023, Consumer 17 and Optus resolved the complaint. Optus waived the outstanding balance on the account and credited Consumer 17 with $1,500.
4. On or around 8 August 2023, Optus identified Consumer 17 as being one of the consumers impacted by the conduct the subject of the Darwin Suntel Investigation.

1. Consumer 18 lives with an intellectual disability, caused by severe brain damage, and receives day-to-day assistance from support workers funded through the National Disability Insurance Scheme (NDIS).

438. At all material times:

a. Consumer 18's main source of income was the disability support pension, for around $1,000 each fortnight. He also received some income from part-time or odd jobs; and

b. Consumer 18 has never owned a business or had an ABN.

1. On or around 4 January 2023, Consumer 18 attended the Optus Palmerston Gateway Store with a support worker to purchase a $20 pre-paid recharge for his phone. At that time, Consumer 18 owned a Samsung phone and was paying about $20 per month for pre-paid credit recharges with Optus. During Consumer 18's visit:

a. Optus Sales Staff told Consumer 18 that he could get a new Samsung Galaxy S22 phone with his $20 credit recharge;

b. Optus Sales Staff told Consumer 18 that the phone came with a speaker, which was described as "free";

c. Optus Sales Staff represented to Consumer 18 that his purchases of the various Optus Products and Optus Services provided by the member of Optus Sales Staff would cost a total of $30 a month;

d. Optus Sales Staff pressured Consumer 18 into purchasing the Optus Products and Optus Services;

e. Optus Sales Staff asked Consumer 18 if he had an ABN and, when Consumer 18 told Optus Sales Staff that he did not, Optus Sales Staff told Consumer 18 that they were making an ABN for him;

f. when Consumer 18 asked why he needed an ABN, Optus Sales Staff told Consumer 18 that it was in order for him to obtain the Optus Products;

g. Consumer 18 told Optus Sales Staff that he worked stacking trolleys at Kmart, and Optus Sales Staff did not ask Consumer 18 how much he earned or if he received Centrelink payments or another form of welfare payment;

h. Optus Sales Staff submitted one internal credit check and two external credit checks for business accounts. The external credit checks listed Consumer 18's occupation as "professional";

i. Optus Sales Staff obtained Consumer 18's signature on one of three contracts with Optus; and

j. Consumer 18 paid $20.24 upfront for one month of a watch and watch plan (which included $5 credit) under one account.

1. On 4 January 2023, Optus Sales Staff at the Optus Palmerston Gateway Store sold Consumer 18 the following Optus Products and Optus Services under three business contracts (Consumer 18 Contracts), linked to three separate accounts in Consumer 18's name:

a. First contract: one phone, two phone or data plans, one accessories bundle and one "Upgrade and Protect" service plan. This contract had:

i. a monthly fee of $175.93;

ii. a total minimum cost of $2,439.73; and

iii. a total cost of $6,333.48 if the contract continued for a 36-month term.

b. Second contract: one watch, one watch plan and one accessories bundle. This contract had:

i. a monthly fee of $33.56;

ii. a total minimum cost of $1,130.46; and

iii. a total cost of $1,208.16 if the contract continued for a 36-month term.

c. Third contract: accessories bundle. This contract had:

i. a monthly fee of $13.32;

ii. a total minimum cost of $479.52; and

iii. a total cost of $479.52 if the contract continued for a 36-month term.

441. At the time of entering the Consumer 18 Contracts, Consumer 18:

a. was not, and had never been, a business owner or sole trader;

b. saw and signed only one of the Consumer 18 Contracts and was not aware that he was entering into three contracts;

c. did not understand the terms of the Consumer 18 Contracts; and

d. was under the impression that the total amount he was required to pay was $30 per month for about two years.

1. Prior to or around the time Consumer 18 entered into the Consumer 18 Contracts, Optus Sales Staff:

a. conducted at least four credit checks in relation to the Consumer 18 Contracts;

b. engaged in the practice of Credit Check Failures, resulting in Consumer 18 being sold products exceeding his credit approval;

c. misrepresented to Consumer 18 that:

i. the speaker was free (Consumer 18 Free Speaker Representation); and

ii. his purchases of the various Optus Products and Optus Services would cost a total of $30 a month (Consumer 18 Total Cost Representation),

(together, the Consumer 18 POS Representations).

443. After entering into the Consumer 18 Contracts:

a. during the period from January 2023 to August 2023, Optus billed Consumer 18 for the Optus Products and Optus Services included in the Consumer 18 Contracts;

b. Consumer 18 began receiving bills from Optus in relation to the Consumer 18 Contracts, Consumer 18 realised that the payments were more than what he had been told by Optus Sales Staff, and that he could not afford the payments;

c. at some point prior to 17 July 2023, Consumer 18 stopped using his Optus phone number; and

d. during the period from January 2023 to August 2023, Optus sent Consumer 18 payment reminders and communications regarding his accounts via email, text message and post.

1. On or around 20 February 2023, Consumer 18's carer contacted Optus on Consumer 18's behalf requesting to review the Consumer 18 Contracts, because Consumer 18 did not understand the Consumer 18 Contracts. However, Optus closed the case associated with this request on 3 March 2023 because they were unable to contact Consumer 18.
2. In or around March 2023, Consumer 18 and/or a support worker contacted Optus in person and by phone regarding the Consumer 18 Contracts and regarding the creation of an ABN that Consumer 18 was unaware of.
3. On or around 17 March 2023, Optus called Consumer 18 in relation to the complaint. An Optus Staff member noted that Consumer 18 said he had visited an Optus Store to check for a better plan, and was surprised that there was a contract generated without his approval or authorisation. The Optus Staff member referred the complaint to the Optus FRM team.
4. On 30 March 2023, Optus closed the complaint on the basis they were unable to reach Consumer 18.
5. On or around 5 April 2024, Consumer 18 engaged a community legal service to assist with cancelling the Consumer 18 Contracts.
6. On or around 19 April 2023, the lawyer from the community legal service contacted Optus on behalf of Consumer 18, and explained that:

a. Consumer 18 had learning and intellectual disabilities and was cared for by carers under an NDIS plan;

b. Consumer 18 had visited an Optus Store to buy $20 phone credit and left with an expensive deal that he did not need and could not have afforded;

c. the contract was a business contract;

d. the Optus Sales Staff member had found an ABN online to use, but that ABN had nothing to do with Consumer 18; and

e. she and Consumer 18 would like the contract voided, Consumer 18 released from any obligations under it, an apology, and an indication of how Optus would prevent this recurring.

1. On 1 May 2023, an Optus Case Manager marked the complaint as "resolved" and that "collections may resume", due to being unable to contact Consumer 18 or the lawyer. Prior to this:

a. the Optus Case Manager contacted Consumer 18 via email on 28 April 2024 advising that he had attempted to call Consumer 18 but had been unable to reach him; and

b. the Optus Case Manager claimed that he attempted to call the lawyer, but that the call did not go through.

1. On 4 May 2023, the lawyer contacted Optus via email to follow up on the complaints. In that email, the lawyer indicated that:

a. she had not heard from the Optus Case Manager, despite Optus advising her on 19 April 2023 that he would contact her within 24 hours;

b. she had called Optus earlier on 4 May 2023, and Optus:

i. advised that, because she was not the account holder, she could not speak to the Optus Case Manager about the complaints and that she would need to visit an Optus Store in person; and

ii. would not provide her an email address to which she could send a copy of her authority to act on behalf of Consumer 18.

1. On 11 May 2023, the Optus Case Manager contacted the lawyer via email to arrange a phone call. Between 11 May 2023 and 13 July 2023, the lawyer was not able to successfully speak to the Optus Case Manager.
2. On or around 13 July 2023, the lawyer made a complaint to the TIO on behalf of Consumer 18.
3. On 14 July 2023, in response to the TIO complaint, an Optus Customer Relations Executive emailed the lawyer to arrange a time to speak.
4. On 17 July 2023, the Optus Customer Relations Executive spoke to the lawyer in relation to Consumer 18's account. In that conversation:

a. the Optus Customer Relations Executive advised the lawyer that he could not speak to her about Consumer 18's account until Optus received multi-factor authorisation (MFA) from Consumer 18; and

b. when the lawyer informed Optus that Consumer 18 no longer used the mobile number registered for MFA for the account, the Optus Customer Relations Executive advised the lawyer that he could not send the MFA to Consumer 18's new phone number and that Consumer 18 would need to visit an Optus Store to update his phone number.

1. Between 17 July 2023 and 31 July 2023, the Optus Customer Relations Executive and the lawyer corresponded in relation to the MFA issue. On 31 July 2023, the Optus Customer Relations Executive marked the complaint as "resolved" and that "collections may resume", as MFA had not been completed.
2. On 31 July 2023, the lawyer informed the TIO that Optus would not progress the complaint due to the MFA requirement. By this point in time, the lawyer had provided Optus with the community legal centre's legal terms of engagement for Consumer 18, certified copies of Consumer 18's drivers licence, and verbal and written authorities.
3. On 9 August 2023, the TIO sent Optus a letter about a possible systemic issue relating to Optus Stores in the NT (including the Optus Palmerston Gateway Store) which identified Consumer 18's complaint number by way of example.
4. By 9 August 2023, Optus knew or reasonably ought to have known that Consumer 18 was one of the consumers impacted by misconduct the subject of the Darwin Suntel investigation.
5. Around the time of and after receipt of the TIO letter dated 9 August 2023, Optus's Collections Office sent Consumer 18 emails on 9 and 11 August 2023, requesting payment for outstanding balances totalling $2,971.06, so that the account "does not progress further into collections".
6. On 11 August 2023, an Optus Customer Resolution Manager sent an "urgent" email to the Optus Customer Relations Executive seeking information about Consumer 18's TIO complaint, and seeking "FS protection for 4 weeks on all his account [sic]". That information was provided in an email dated 14 August 2023.
7. On 14 August 2023, an Optus Staff member sent an internal email which stated that the TIO complaint relating to Consumer 18 may have been "worse" than some other consumer complaints, given that the ABN was falsified.
8. Between 14 and 18 August 2023, Optus Staff attempted to conduct MFA in relation to Consumer 18 on multiple occasions, at first by requesting he visit an Optus Store in person and then by email verification.
9. On 21 August 2023, an Optus Staff member stated in an internal email relating to Consumer 18's complaint that they needed to rectify the "obvious deception" and that they did not need MFA for a customer to apply a credit to their account.
10. On 21 August 2023, Optus waived the final outstanding balances and accessory charges on the Consumer 18 Contracts.

1. Consumer 20 was born in 1941. As at February 2023, Consumer 20 was 81 years old. At all material times, Consumer 20 was retired and her only income was the age pension in the amount of approximately $1,166 per fortnight. Consumer 20 has access to a $100,000 reverse mortgage secured against the unit she owns to assist her in paying her bills.
2. On 17 February 2023, Consumer 20 attended the Optus West Lakes Store because she wanted to reduce the costs of her internet plan. During her visit:

a. Optus Sales Staff told Consumer 20 there were no cheaper internet plans available (she was, at that time, on a plan for $59 per month);

b. Optus Sales Staff represented to Consumer 20 that she could have two "free" phones;

c. Optus Sales Staff pressured Consumer 20 to accept two additional phones despite her telling Optus Sales Staff she did not want or need the two phones; and

d. Optus Sales Staff provided Consumer 20 a printed copy of a contract, which Consumer 20 did not sign.

1. On 17 February 2023, Optus Sales Staff at the Optus West Lakes Store sold Consumer 20 two phones and two phone or data plans under one contract (Consumer 20 Contract), linked to at least two separate accounts in Consumer 20's name. This contract had:

a. a monthly fee of $67.75 for the first twelve months;

b. a monthly fee of $87.75 thereafter;

c. a total minimum cost of $804.15; and

d. a total cost of $2,919.00 if the contract continued for a 36-month term.

1. At no point prior to Consumer 20 entering into the Consumer 20 Contract on 17 February 2023 did the Optus Sales Staff:

a. explain the terms and ongoing costs of the Consumer 20 Contract to Consumer 20;

b. explain to Consumer 20 that she would receive two mobile phone plans and a new phone number; and/or

c. inform Consumer 20 of the total cost of the Consumer 20 Contract or explain to Consumer 20 the ongoing costs of the Optus Products and Optus Services.

1. Prior to or around the time Consumer 20 entered into the Consumer 20 Contract, Optus Sales Staff:

a. conducted one credit check in relation to the Consumer 20 Contract; and

b. misrepresented that the two new phones were "free" (Consumer 20 Free Phones Representation).

1. On or around 20 February 2023, Consumer 20 received two new mobile phones and a SIM in the mail. On the same day, Consumer 20 called Optus to obtain assistance with setting up the modem and the SIM, but Optus was unable to assist.
2. In or around February or March 2023, Consumer 20 returned to the Optus West Lakes store to make a complaint about the Optus Products sold to her pursuant to the Consumer 20 Contract. The complaint was not resolved in store.
3. On or around 22 February 2023, Consumer 20 made a complaint to the TIO.
4. On or around 26 February 2023, Consumer 20 was charged under the Consumer 20 Contract. She continued to be billed for her internet.
5. Shortly after making the TIO complaint, on or around 27 February 2023, Consumer 20 spoke to the Optus Resolutions Team and was told she could return the phones and, on the same day, Consumer 20 posted the two phones back to Optus.
6. On or around 2 March 2023, an Optus technician attended Consumer 20's house to set up the modem and SIM, but the technician was unable to complete the setup. On around 7 March 2023, an Optus technician attended Consumer 20's house again and was successful in setting up Consumer 20's internet.
7. On 7 March 2023, Optus made an offer to resolve Consumer 20's complaint which included that Optus would remove the two Samsung phones from her account and credit the phones once they had been returned, cancel the new phone number, provide a replacement modem and SIM and make a "once off ex-gratia credit" for internet charges.

478. Despite the above:

a. on or around 21 March 2023, Optus attempted to debit $773 from Consumer 20's bank account; and

b. on 26 March 2023, Optus issued a bill of $673 to Consumer 20.

1. On 29 March 2023, the TIO sent Optus a request to stop credit management in relation to Consumer 20.
2. On 29 March 2023, Optus sent an email to Consumer 20 confirming it had received the two phones and had placed a credit on her account for each of the phones.
3. On 14, 18 and 20 April 2023, Optus sent Consumer 20 email and text message reminders regarding payment of $59.
4. In or around late April 2023 or early May 2023, Consumer 20 spoke to an Optus Staff member. On that call, Optus agreed to waive the charges and refund Consumer 20 the amount she had already paid. The refund was completed on 8 May 2023.
5. On 15 May 2023, Consumer 20's TIO complaint was resolved.
6. In or around early June 2023, Consumer 20 received two communications from Optus stating she owed Optus $9 and an additional $15 for late payment. On 5 June 2023, Consumer 20 emailed an Optus Staff member about the matter, which resulted in its resolution.

1. Consumer 22 was born in 1937 and was 85 years old in March 2023. At all material times:

a. Consumer 22 lived by herself in a retirement village;

b. Consumer 22's only income was age pension payments from Centrelink; and

c. Consumer 22 had only a basic understanding of technology and only used her phone for text messages and calls.

1. On 20 March 2023, Consumer 22 attended the Optus Westfield Marion Store because she had an issue with her phone screen and wanted to get it repaired.

487. During her visit to the Optus Westfield Marion Store on 20 March 2023:

a. Consumer 22 showed Optus Sales Staff her phone, which was a low-cost and basic model;

b. Optus Sales Staff told Consumer 22 they could not repair the phone and suggested she attempt to have the phone repaired at a phone repair shop or another Optus store. Consumer 22 was unable to get the phone repaired and returned to the Optus Westfield Marion Store;

c. Optus Sales Staff again told Consumer 22 they could not repair her phone, and offered to sell her a new mobile phone. Consumer 22 felt she had no other option but to buy a new phone;

d. Consumer 22 told the Optus Sales Staff that she did not want to pay for a phone on a post-paid plan, that she was on a pre-paid plan, that she was currently paying only about $180 per year, and that she only used her phone for calls and text messages;

e. Optus Sales Staff told Consumer 22 that she was not able to buy a phone outright and had to pay for the phone monthly. This statement was false; and

f. Optus Sales Staff selected a phone for Consumer 22 and had Consumer 22 sign a contract on a screen.

1. On 20 March 2023, Optus Sales Staff at the Optus Westfield Marion Store sold Consumer 22 one phone and one phone or data plan under one contract (Consumer 22 Contract). This contract had:

a. a monthly fee of $66.46 for the first twelve months;

b. a monthly fee of $86.46 thereafter;

c. a total minimum cost of $1,377.56; and

d. a total cost of $2,872.56 if the contract continued for a 36-month term.

1. Prior to or around the time that Consumer 22 signed the Consumer 22 Contract on 20 March 2023, Optus Sales Staff:

a. conducted two credit checks in relation to the Consumer 22 Contract, one of which was withdrawn; and

b. provided Consumer 22 with an invoice showing a "total balance" of $0.00.

1. At no point prior to Consumer 22 signing the Consumer 22 Contract on 20 March 2023 did the Optus Sales Staff:

a. provide a copy of the Consumer 22 Contract to Consumer 22 or ensure she read the Consumer 22 Contract;

b. explain the terms of the Consumer 22 Contract to Consumer 22;

c. inform Consumer 22 of the total cost of the Consumer 22 Contract or explain to Consumer 22 the ongoing monthly cost of the Optus Product and Optus Service provided; and/or

d. explain to Consumer 22 that she could buy a significantly cheaper phone outright and continue having a pre-paid plan.

491. At the time of entering the Consumer 22 Contract, Consumer 22 did not know:

a. she was purchasing a phone valued at $1,348.56 or $36.46 per month, and a pre-paid plan which was $49 per month;

b. the total cost of the Consumer 22 Contract; and

c. that she was able to buy a significantly cheaper phone outright and continue having a pre-paid plan.

1. On either 20 or 21 March 2023, Consumer 22 informed her step-son, that she had a problem with her phone screen and bought a new phone. Her step-son informed her that she had purchased a phone costing around $1,300 or $1,500, which Consumer 22 was very surprised to hear.

493. On 22 March 2023:

a. Consumer 22's step-son contacted the Optus Westfield Marion Store on Consumer 22's behalf and asked to return the phone and cancel the post-paid plan. The step-son was transferred to the Optus Customer Service and asked for a manager or supervisor to call him back, but no representative from Optus returned his call; and

b. Consumer 22's step-son made a complaint via the Optus webchat. The Optus Customer Service representative told him that Optus Customer Service had limited options to rectify the issue as the contract was made in-store, and suggested that they return to the Optus Westfield Marion Store. Subsequently, the complaint was escalated to Optus's Customer Relations teams.

1. On or around 25 March 2023, Consumer 22 had her old phone repaired for a total cost of $265.
2. After 25 March 2023, and in or around March or April 2023, Consumer 22 visited the Optus Westfield Marion Store to return the phone. The store manager refused to accept the return and gave Consumer 22 details for the customer helpline. Consumer 22 called the Optus customer helpline and was told that she could not return the phone if it had been taken out of the box.
3. Between 22 March 2023 and 13 April 2023, Consumer 22's step-son and Consumer 22 had multiple calls and emails with Optus Staff.
4. On multiple occasions, Optus Staff sought completion of MFA from Consumer 22 in order to allow her step-son to act on her behalf.
5. In the course of these calls, Consumer 22's step-son told Optus Staff that Consumer 22 had not opened the device box herself but that the salesperson had done so in store.
6. On 13 April 2023, Optus offered to waive any associated mobile costs provided the device was returned in an unopened box within 14 days.

500. On 20 April 2023:

a. Optus sent Consumer 22 an invoice for the amount of $1,311.10, and the invoice stated that this amount would be automatically deducted on 5 May 2023.

b. Following receipt of the invoice, Consumer 22's step-son contacted Optus CRT. He stated that Consumer 22 had received a bill for $1,311, he and Consumer 22 were preparing to return the mobile phone within 24 hours; and

c. Optus Staff advised Consumer 22's step-son that Consumer 22 would need to complete the MFA process again in order for Optus Staff "to proceed with the case".

1. On 21 April 2023, Consumer 22's step-son made a complaint to the TIO on Consumer 22's behalf.
2. On 27 April 2023, Optus sent Consumer 22's step-son an email setting out an agreed resolution that he would return the phone to Optus at no cost to Consumer 22 and Optus would apply a credit of $1,311.10 to Consumer 22's account to waive the outstanding balance and refund $66.46 to Consumer 22.
3. On 5 May 2023, Optus deducted $1,311.10 from Consumer 22's account. Optus reversed the transaction on the same day.
4. On or around 11 May 2023, after Consumer 22's step-son posted the mobile phone to Optus on behalf of Consumer 22, Consumer 22's complaint was resolved. Optus cancelled the Consumer 22 Contract, waived all outstanding fees and issued a refund of a payment of $66.46 (this did not include a refund for a phone case as Consumer 22 was unable to return it as she did not have the receipt).

1. Consumer 23 has Down Syndrome, and lives with his parents. Consumer 23 lives with an intellectual disability caused by Down Syndrome, which makes it difficult for him to converse with other people easily.
2. Consumer 23's main income is a disability support pension, as well as income from working up to eight hours a week at a retail shop. Consumer 23 also receives assistance through the NDIS. Consumer 23's parents manage his finances, regularly transferring small amounts of money into his bank account for him to spend.
3. On or around 26 June 2023, Optus Sales Staff at the Optus Rockingham Store sold Consumer 23 the following Optus Products and Optus Services under two contracts (Consumer 23 Contracts):

a. First Contract: one phone, one phone or data plan, one accessories bundle, one equipment repayment fee for a modem, and one internet plan. This contract had:

i. a monthly fee of $132.91 for the first six months;

ii. a monthly fee of $142.91 thereafter;

iii. a total minimum cost of $1,328.51; and

iv. a total cost of $5,084.76 if the contract continued for a 36-month term.

b. Second contract: accessories bundle. This contract had:

i. a monthly fee of $2.76;

ii. a total minimum cost of $99.36; and

iii. a total cost of $99.36 if the contract continued for a 36-month term.

508. The Consumer 23 Contracts:

a. were for an "Individual/Sole Trader" account and listed an ABN that was not Consumer 23's ABN, Consumer 23 having never had an ABN;

b. listed an ABN under the name of an unrelated person; and

c. listed an email address that was not Consumer 23's email address.

1. Prior to or around the time that Consumer 23 signed the Consumer 23 Contracts, Optus Sales Staff:

a. conducted two credit checks in relation to the Consumer 23 Contracts; and

b. entered false information into the Consumer 23 Contracts and/or Consumer 23's credit checks, namely an ABN that was not Consumer 23's ABN (and not in his name) and an email address that was not Consumer 23's email address.

510. At the time of entering the Consumer 23 Contracts, Consumer 23:

a. had an Apple iPhone 12;

b. had access to his parents' home internet and modem; and

c. did not know what antivirus software was for.

1. On 27 June 2023, Optus issued a bill to Consumer 23 for the amount of $135.67 in respect of the Consumer 23 Contracts.
2. On or around 27 June 2023, Consumer 23's father went to the Optus Rockingham Store to return the Optus Products purchased under the Consumer 23 Contracts and make a complaint. Consumer 23's father explained to the Optus Sales Staff in store that Consumer 23 has Down Syndrome, which leaves him with impaired ability to understand figures and basic conversations, and was sold multiple Optus Products and Optus Services that he did not need. During the store visit, Optus Sales Staff told Consumer 23's father that the sales to Consumer 23 were fine, refused to accept the return of the Optus Products purchased under the Consumer 23 Contracts, and did not inform Consumer 23's father how to escalate his complaint.
3. On or around 27 June 2023, Consumer 23's father called Optus. Consumer 23's father understood from that phone call that Optus would cancel the Consumer 23 Contracts and allow him to return the Optus Products.
4. In or around early July 2023, Consumer 23's father attempted to return the Optus Products purchased under the Consumer 23 Contracts but was only able to return one phone.
5. On 13 July 2023, Consumer 23's father received an email from Optus addressed to Consumer 23 which stated that Consumer 23's business account of $135.67 was late for payment.
6. On 17 July 2023, Optus sent Consumer 23's father two emails and Consumer 23 two text messages advising that payment of $135.67 was late.
7. On or around 17 July 2023, Consumer 23's father and Consumer 23 attended an appointment with a financial counsellor. During the appointment, the financial counsellor and Consumer 23 called Optus, and Optus agreed:

a. to cancel the Optus Services acquired under the Consumer 23 Contracts;

b. that the modem would be returned to Optus; and

c. that Consumer 23 could keep the earbuds and charger with no amount payable by Consumer 23.

1.22 Consumer 24

1. Consumer 24 was born in 1951 and was around 71 years old in September 2023. Consumer 24 has dementia and is easily confused. Consumer 24 receives assistance from support workers, her friend (with whom Consumer 24 resides) and her friend's daughter.
2. At all material times, Consumer 24 was retired and Consumer 24's main source of income was the age pension.
3. On or around 12 September 2023, Consumer 24 attended the Optus Launceston Store, because her phone was not charging. At that point, Consumer 24 owned her mobile phone outright, paid $30 per month for a pre-paid plan with Optus and had only ever used an iPhone.

521. During Consumer 24's visit to the Optus Launceston Store:

a. Optus Sales Staff told Consumer 24 that they could not assist with the issue with her iPhone and started trying to sell Consumer 24 a new Samsung phone;

b. Optus Sales Staff continually insisted on selling Consumer 24 a new phone, despite Consumer 24 telling Optus Sales Staff numerous times that she did not want a new phone and just wanted her phone fixed;

c. Optus Sales Staff provided Consumer 24 with several boxes of accessories, told Consumer 24 that she had to take them all as part of the package and gave Consumer 24 the impression that the items were free;

d. Consumer 24 felt confused and had the impression that Optus Sales Staff were trying to confuse her; and

e. Optus Sales Staff filled in a document on Consumer 24's behalf.

1. On or around 12 September 2023, Optus Sales Staff at the Optus Launceston Store sold Consumer 24 one phone, one phone or data plan and one accessories bundle under one contract (Consumer 24 Contract). This contract had:

a. a monthly fee of $60.46 for the first twelve months;

b. a monthly fee of $70.46 thereafter;

c. a total minimum cost of $652.48; and

d. a total cost of $1,571.04 if the contract continued for a 24-month term.

1. At no point prior to Consumer 24 entering into the Consumer 24 Contract on 12 September 2023 did the Optus Sales Staff:

a. ask Consumer 24 about her phone usage or financial position;

b. explain the terms and ongoing costs of the Consumer 24 Contract to Consumer 24;

c. explain to Consumer 24 that she was purchasing a phone and multiple accessories as part of the Consumer 24 Contract; and/or

d. inform Consumer 24 of the total cost of the Consumer 24 Contract or explain to Consumer 24 the ongoing cost of the Optus Products and Optus Services provided.

1. Prior to or around the time that Consumer 24 entered into the Consumer 24 Contract on 12 September 2023, Optus Sales Staff:

a. pressured Consumer 24 into purchasing a new mobile phone, accessories and mobile phone plan when she attended the Optus Launceston Store for assistance in repairing her mobile phone; and

b. conducted two credit checks in relation to the Consumer 24 Contract.

1. At the time Consumer 24 entered into the Consumer 24 Contract, Consumer 24 did not understand:

a. that she was signing up to a mobile phone plan;

b. what type of mobile phone she was purchasing; and

c. what the accessories were and didn't know that she would have to pay for them.

1. On or around 13 September 2023, Consumer 24 returned to the Optus Launceston Store with a support worker to cancel the Consumer 24 Contract and return the items, but Optus Sales Staff sent them away.
2. On or around 13 September 2023, Consumer 24 told her friend's daughter about her experience at the Optus Launceston Store. After this:

a. her friend's daughter called Optus's general customer service number on Consumer 24's behalf to attempt to speak to Optus's complaints department, but was informed that she would need to make a complaint online;

b. on 20 September 2023, her friend's daughter called the Optus Launceston Store and spoke to Optus Staff:

i. her friend's daughter explained to Optus Staff that Consumer 24 was an older lady with dementia who had gone to the Optus Launceston Store for help with her mobile phone, but had been pressured into purchasing a new mobile phone on a contract; and

ii. Optus Staff informed her friend's daughter that Consumer 24 could not return the mobile phone as Consumer 24 had signed the contract and the box had already been opened.

1. On 20 September 2023, her friend's daughter made a complaint to the TIO, and requested that the Consumer 24 Contract be cancelled without penalty and that Consumer 24 be allowed to return the mobile phone and accessories.
2. On 28 September 2023, in response to the TIO complaint, Optus advised Consumer 24 that Optus would cancel the contract, refund Consumer 24 for the $60.46 already paid, waive the handset payout fee upon return of the mobile phone, and waive the cost of the accessories.