Tribunal’s review and Determination
On 30 December 2019, Flexigroup (an interested party in this authorisation) lodged an application for review of the ACCC’s Determination with the Australian Competition Tribunal (Tribunal). The matter was considered afresh by the Tribunal in a hearing held on 9-12 June 2020.
The Tribunal made its Determination on 15 September 2020, which can be found on its website (Application by Flexigroup Limited (No 2)  ACompT 2).
The Tribunal varied the ACCC’s Determination, and granted conditional authorisation for five years from the date of its Determination.
The Tribunal was not satisfied that the New Energy Tech Code in the form submitted for its review would be likely to result in a net public benefit, but decided it would be satisfied if certain amendments were included. The Tribunal imposed conditions amending provisions of the Code relating to the requirements that “buy now pay later” (BNPL) finance providers must meet in order for signatories to offer such finance arrangements under the Code. It also removed the prohibition on BNPL finance being offered in unsolicited sales of new energy tech, removed the Code administrators’ ability to impose mandatory standards on signatories that would apply to future new energy tech products and services, and made amendments to other aspects of the Code. The conditions imposed by the Tribunal are set out in Annexure B of the Tribunal’s Determination.
The Tribunal’s Determination now stands in place of the ACCC’s Determination.
Background on application and ACCC Determination
On 30 April 2019, the Clean Energy Council (CEC), the Australian Energy Council (AEC), the Smart Energy Council (SEC) and Energy Consumers Australia (ECA) (together the Applicants) lodged an application on behalf of themselves and future signatory providers of ‘new energy tech’ (e.g. solar generation systems, energy storage systems, electrical vehicle charging and other emerging energy products and services) for authorisation for the New Energy Tech Consumer Code (Consumer Code).
The proposed Consumer Code will set minimum standards of good practice and consumer protection that will be provided by signatories covering all aspects of the customer experience, including those ranging from initial marketing and promotion through to, as appropriate, the offering, quoting, contracts, finance and payments, installation, operation, customer service, warranties and complaints handling processes.
On 5 December 2019, the ACCC issued a determination granting conditional authorisation in relation to the Consumer Code for 5 years. The conditions relate to requirements that “buy now pay later” (BNPL) finance providers must meet in order for signatories to offer such finance arrangements under the Consumer Code, and the prohibition in the Consumer Code on BNPL finance being offered in unsolicited sales of New Energy Tech products.
The Applicants must also report to the ACCC on the operation of the Consumer Code, which will enable the Applicants, as well as the ACCC, to assess whether the Consumer Code is operating as envisioned, including whether there are sufficient protections against harms that arise from unsuitable financial arrangements.