Bayly AndrewANDREW BAYLY (National—Hunua): Thank you Madam Deputy Speaker. It's a pleasure to be talking on the Commerce (Criminalisation of Cartels) Amendment Bill. The previous speaker Fletcher Tabuteau just said that the Government were trying to address the issues of the last Government. Madam Deputy Speaker I put it to you that this is a Government that is meddling—meddling on the edges. I am very disappointed that the new Minister of Commerce and Consumer Affairs has chosen this bill to be his opening gambit in terms of trying to improve the environment for businesses and people of New Zealand. This is a vexed issue of course and all New Zealanders hate the concept of cartels operating in New Zealand and causing all the disadvantages of that. Everyone agrees with that; that's an absolute given but let's just go and remind ourselves about what powers are already in the existing Act.First is that under the civil sanctions provision of the Commerce Act individuals can be fined up to a maximum of $500000 and corporations can have financial penalties the greater of $10 million—three times the value of the ill-gotten gains however they are assessed—or 10 percent of the company's turnover. Madam Deputy Speaker I would say to you that those are significant penalties. The second provision under the existing Commerce Act is that companies are prohibited from indemnifying their directors and management and that is a common practice. Under the existing Act they are prohibited from providing that financial assistance—in effect cover for their directors and management. The third thing is that directors and management can be banned—if they are found to be operating cartels—for a maximum of five years. I put it to you Madam Deputy Speaker these are substantial penalties.So what is this new bill—this new bill that seeks to be the wonderful lead-off on the commerce section of the Government's new agenda. Well under clause 4 it inserts new section 82B which inserts a provision around criminal cartels. In order to commit an offence a person must give effect to a cartel provision and intend at the time of giving effect to the cartel provision to engage in price fixing restricting output or market allocation which of course are provisions already under the current legislation in terms of those specific elements. But by introducing a criminal content what it does is it introduces a whole new test that the courts now have to assess. One is about establishing intent and it has to be in relation to the detriment of the public. So already we've added a complication.But even if you accept that argument the penalties that are proposed under this new bill are basically the same. The only difference is that in respect of an individual not only can they have a maximum fine of up to $500000 but they may be imprisoned up to a period of seven years. And there are already watered-down provisions in the new bill which rightly so excludes things like shipping companies and other collaborative arrangements. So there are already existing exemptions.I think there's a very legitimate conversation to be talking about how a Government should promote healthy competition but I ask you Madam Deputy Speaker where is the evidence? Where is the evidence for the need for this change? There is no evidence. There is absolutely no evidence for the need to introduce a criminalisation issue.I think that what this bill does is it introduces this additional test that really cuts to the core of those people who manage New Zealand businesses legitimately but introduces a whole new area of risk. These are the very same people that the bill seeks to target. They may inadvertently give rise to a situation that may border on the issue of cartels but this issue about this criminalisation clause is that it is a very grey area. If you think about issues where people are doing joint bids where they are working collaboratively within the market place—we've got a very vibrant creative sector working together to develop new products and services—or even where companies are vertically integrated all those are grey areas under this criminalisation and I think what's going to end up is an absolute field day for lawyers.So I think this just purely a philosophical change by this Government who is anti-business—anti-business—and I don't believe that this is actually going to achieve anything. Already the courts have handed out a vast number of convictions over the last few years; they are effective. We've got a whole stack of parties against this including Treasury and the Productivity Commission. I think this is a feel-good bill for everyone on the other side there to be able to say Yes we're doing something but in reality we're not doing anything at all.""