Report: Our response to the New Energy Tech Consumer Code

The New Energy Tech Consumer Code (NET Code) is a voluntary industry code of conduct, which sets practice standards for the sale of New Energy Technology (NET) products, systems, and services by retailers to residential and small business customers. The NET Code primarily applies to solar panel sales and installation.

The process for drafting the NET Code began in August 2017, when the COAG Energy Council wrote to industry groups to collaborate with Energy Consumers Australia (ECA) to develop an industry code for ‘behind-the-meter’ products and services. After two years in development, the NET Code was authorised by the Australian Competition and Consumer Commission (ACCC) on 5 December 2019.

On 30 December 2019, buy now pay later (BNPL) provider Flexigroup Limited (Flexigroup) applied to the Australian Competition Tribunal (the Tribunal) for the authorisation to be reviewed.

The issues in dispute concerned the ACCC’s authorisation of two clauses in the NET Code as it then was which concerned a prohibition on unsolicited sales of NET products with buy now pay later (BNPL) (unsolicited sales provision) and limitations on the unsuitable offering of BNPL to purchasers of NET products (responsible lending provision).

Flexigroup sought to remove the unsolicited sales provision and weaken the responsible lending provision. Consumer Action Law Centre was granted leave to intervene in the proceeding to represent the interests of consumers.

The Tribunal hearings commenced on 9 June 2020. In our submissions, we made the case that solar panel retailers offering BNPL finance have engaged in predatory unsolicited sales practices, signed people up to unaffordable finance arrangements and inflated the cost of solar panels. In essence, we argued that solar panel retailers that commit to the NET Code should not be using this type of unregulated finance or engaging in unsolicited selling.

The Tribunal’s determination was delivered on 15 September 2020.  In its determination, the Tribunal concluded that the two clauses under consideration were “likely to generate significant public detriments” and that the NET Code be amended to remove these provisions. The Tribunal’s reasoning was that given the popularity of BNPL finance among purchasers of NET products, they believed the evidence of material consumer harm related to BNPL finance presented was insufficient to justify restricting the availability of BNPL finance for NET products. The Tribunal was also of the view that the existing unsolicited sales laws sufficiently protect consumers.

Following the Tribunal’s decision, we have produced this report to document our experience of representing the interests of consumers at the Tribunal. We reflect upon the impact of our involvement, on what worked well, what challenges we faced and where we go next to ensure stronger consumer protections are in place within the NET industry.

Read the full report (PDF).

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