Application by Flexigroup Limited (No 2)

Flexigroup Limited sought to challenge the Australian Competition and Consumer Commission’s (ACCC) authorisation of a voluntary code of conduct for suppliers of New Energy Technology (NET) in the residential and small business market. The Tribunal was tasked with reviewing the authorisation and determining whether the ACCC had exercised its powers under the Competition and Consumer Act 2010 (Cth) appropriately. The Tribunal was required to decide whether the authorisation granted by the ACCC was appropriate and whether the conditions imposed were necessary to mitigate any potential detriments to the public.

The Tribunal found that while the code of conduct was likely to produce public benefits, it also had the potential to cause public detriments. The Tribunal concluded that these detriments could be addressed by imposing conditions on the authorisation that would require amendments to the code of conduct. Specifically, the Tribunal required the deletion or variation of certain provisions relating to the offer of unregulated consumer credit in connection with unsolicited sales of NET. The Tribunal also imposed conditions relating to reporting, aimed at ensuring industry and market scrutiny of the actions and decisions taken by the Administrator and Panel under the code of conduct. The Tribunal varied the ACCC’s determination by authorising the code of conduct, subject to the imposed conditions.

The Tribunal authorised the code of conduct, subject to the imposed conditions, for a period of five years. The Tribunal granted authorisation to the applicants and future signatories to the code, as well as the persons constituting the Administrator and Code Monitoring and Compliance Panel from time to time. The authorisation is subject to conditions that require the deletion or variation of certain provisions of the code of conduct, as well as the inclusion of additional information in the annual report. The Tribunal’s decision provides guidance on the appropriate exercise of the ACCC’s powers under the Competition and Consumer Act 2010 (Cth) and the importance of ensuring that any authorisation granted is balanced and proportionate to the potential benefits and detriments of the code of conduct.