Huo Raymond: Commerce Commission (International Co-operation and Fees) Bill — First Reading 
Huo Raymond: Commerce Commission (International Co-operation and Fees) Bill — First Reading 
[Volume:663;Page:11274] 
RAYMOND HUO (Labour) 
: 
 I rise to support this bill and as part of my contribution I would like to pay tribute to the former Minister of Commerce the Hon Lianne Dalziel who introduced this bill in September 2008 and the current Minister the Hon Simon Power who adopted this bill. 
The proposals in the bill are part of the work programme supporting the memorandum of understanding on business law coordination with Australia. The Hon Lianne Dalziel together with the then Treasurer of Australia signed the memorandum of understanding in February 2006 and it is the centrepiece of the single economic market agenda with Australia. 
The primary objective of this bill is to facilitate cooperation between the Commerce Commission and its overseas counterparts most notably the Australian Competition and Consumer Commission. Both the Commerce Commission and the Australian Competition and Consumer Commission were of the view that the constraints on cooperation are impeding trans-Tasman investigations. Therefore the bill amends the Commerce Act 1986 the Credit Contracts and Consumer Finance Act 2003 and the Fair Trading Act 1986 and proposes improving and enhancing cooperation by enabling the commission to first exercise its statutory information-gathering powers to assist an overseas competition authority and second provide any information acquired under its powers to an overseas competition authority. 
Having said that I point out that it sounds like this bill is addressing international cartel investigations because they are the areas where these powers will have real relevance and application if the scope of this bill is much wider. Indeed the international nature of transactions and territorial limits on regulators make it increasingly desirable for regulators to cooperate to manage competition and consumer efforts in transactions in domestic markets. 
The Commerce Commission is currently constrained from providing investigative assistance and the compulsorily acquired information it holds to overseas regulators. The commission’s statutory powers of compulsion can be used only in relation to enforcement and adjudication within New Zealand. There are also legal constraints on the provision to overseas regulators of confidential information compulsorily acquired that is already held by the commission. This in turn limits the willingness of overseas regulators to provide assistance to the commission as cross-jurisdictional assistance tends to be based on mutual assistance. 
The first feature of this bill is reciprocity. Without reciprocity it is hard to see how assisting an overseas regulator carrying out its functions promotes competition in New Zealand markets given that the Commerce Commission’s core function is to promote competition in markets for the benefit of New Zealanders. Secondly the bill provides for a number of safeguards for New Zealand interests. This includes consideration of matters such as the nature of relevant overseas competition or consumer protection laws any relevant privacy issues and a framework within the overseas jurisdiction for dealing with what would generally be sensitive information. The third feature relates to the maintenance of privilege. The bill addresses this by providing for the protection of privileged documents that the commission may provide to an overseas regulator and vice versa in order to encourage enhanced cooperation in respect of this type of material. 
Other aspects or issues likely to be addressed or looked at closely at the select committee include first as the Minister the Hon Simon Power asked in his speech last week whether the Government to Government cooperation arrangement should be the only means by which overseas regulators may access investigative assistance from the commission or whether ministerial approval of a regulator to regulator arrangement could be a good alternative. Second in relation to fees or fee exemptions clause 13 in Part 2 amends section 108 of the Commerce Act 1986. As the Hon Lianne Dalziel pointed out the concept of having a tiered approach may be a better way of addressing the issues taking into consideration all factors including the need to make compliance costs more manageable for the small to medium sized enterprise sector. Finally as many legal practitioners queried it will be interesting to see whether the proposals in this bill will cause any changes in the Commerce Commission’s approach to the use of a section 98 regime. 
The first issue related to that is in relation to what information is covered by the information-sharing provisions of this bill. This bill primarily deals with the sharing of information that is “compulsorily acquired information” which in the competition law context means information that is not in the public domain and is acquired by the Commerce Commission using its powers under section 98 of the Commerce Act 1986. Information that is provided to the commission voluntarily is however not subject to the information-sharing regime. 
The second issue is in the merger area where the commission obtains information both voluntarily and by the use of section 98 notices in circumstances where information is required in a short period of time or in a way that would otherwise breach confidentiality obligations to third parties. Currently the method used is irrelevant to the party providing the information but under this bill the confidential information obtained under a section 98 notice will be liable to be shared with overseas regulators. I look forward to hearing more from submitters and learning more on this subject. I commend the bill to the House.