Commerce Act 1986

1: Short Title and commencement
1: This Act may be cited as the Commerce Act 1986.
2: This Act shall come into force on 1 May 1986.
1A: Purpose
The purpose of this Act is to promote competition in markets for the long-term benefit of consumers within New Zealand. Section 1A inserted 26 May 2001 section 4 Commerce Amendment Act 2001
2: Interpretation
1: In this Act, unless the context otherwise requires,— accounting period section 5 Financial Reporting Act 2013 acquire
a: in relation to goods, includes obtain by way of gift, purchase, or exchange; and also includes take on lease, hire, or hire purchase:
b: in relation to services, includes accept:
c: in relation to goods or services that are lease, arrive at assets associate member section 11(1) authorisation Part 5 Part 6 Authority Electricity Industry Act 2010 business
a: that is carried on for gain or reward; or
b: in the course of which goods or services are acquired or supplied otherwise than free of charge cartel provision section 30A(1) chairperson clearance Part 5 Part 6 collaborative activity section 31(4) Commission
a: means the Commerce Commission established under Part 1
b: for the purposes of determining any matter or class of matter specified in a direction under section 16(1) Consumers Price Index court covenant covenant proposed covenant credit instrument deputy chairperson document
a: any writing on any material:
b: any information recorded or stored by means of any tape recorder, computer, or other device; and any material subsequently derived from information so recorded or stored:
c: any label, marking, or other writing that identifies or describes any thing of which it forms part, or to which it is attached by any means:
d: any book, map, plan, graph, or drawing:
e: any photograph, film, negative, tape, or other device in which 1 or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced give effect to understanding, or covenant
a: do an act or thing in pursuance of or in accordance with that provision:
b: enforce or purport to enforce that provision goods
a: means personal property of every kind (whether tangible or intangible); and
b: includes—
i: ships, aircraft, and vehicles:
ii: animals, including fish:
iii: minerals, trees, and crops, whether on, under, or attached to land or not:
iv: gas and electricity:
v: to avoid doubt, water and computer software international liner shipping service
a: means a service exclusively for the carriage of goods by sea from a place in New Zealand to a place outside New Zealand, or from a place outside New Zealand to a place in New Zealand, that—
i: operates at regular intervals on a fixed route or fixed routes in accordance with an advertised schedule; and
ii: is supplied, as its capacity allows, to any paying customer; but
b: excludes a service for the carriage of goods to or from a ship or the loading or unloading of a ship local authority market allocating section 30A(4) member of the Commission
a: means a member appointed under section 9(2)
b: means the Telecommunications Commissioner appointed under section 9
ba: means the Grocery Commissioner appointed under section 167
c: in the circumstances in section 11(3) Minister overseas regulator person place prescribed price price fixing section 30A(2) provision
a: in relation to a covenant, means a term of the covenant; and
b: in relation to an understanding or arrangement, means any matter forming part of or relating to the understanding or arrangement public service agency section 10(a) publicly available
a: the document or information is available for inspection, free of charge, on an Internet site that is publicly accessible at all reasonable times; and
b: a copy of the document or information is available for inspection at all reasonable times, free of charge, at the head office of the person that is required to make it publicly available or, if the person is the Minister, at the head office of the department responsible for the administration of this Act; and
c: copies of the document may be purchased by any person at a reasonable price restricting output section 30A(3) services
a: a contract for, or in relation to,—
i: the performance of work (including work of a professional nature), whether with or without the supply of goods; or
ii: the provision of, or the use or enjoyment of facilities for, accommodation, amusement, the care of persons or animals or things, entertainment, instruction, parking, or recreation; or
iii: the conferring of rights, benefits, or privileges for which remuneration is payable in the form of a royalty, tribute, levy, or similar exaction; or
iv: to avoid doubt, the supply of electricity, gas, telecommunications, or water, or the removal of waste water:
b: a contract of insurance, including life assurance, and life reassurance:
c: a contract between a bank and a customer of the bank:
d: any contract for or in relation to the lending of money or granting of credit, or the making of arrangements for the lending of money or granting of credit, or the buying or discounting of a credit instrument, or the acceptance of deposits;— but does not include rights or benefits in the form of the supply of goods or the performance of work under a contract of service share
a: a beneficial interest in any such share:
b: a power to exercise, or control the exercise of, a right to vote attaching to any such share that carries the right to vote at meetings of the company
c: a power to acquire or dispose of, or control the acquisition or disposition of, any such share:
d: a perpetual debenture and perpetual debenture stock substantial
a: sections 36 36A
b: section 47(3) and (4)
c: Part 4 supply
a: in relation to goods, includes supply (or resupply) by way of gift, sale, exchange, lease, hire, or hire purchase; and
b: in relation to services, includes provide, grant, or confer; and
c: in relation to goods or services that are interests in land, includes disposition trade turnover working day
a: a Saturday, a Sunday, Waitangi Day, Good Friday, Easter Monday, Anzac Day, the Sovereign’s birthday, Te Rā Aro ki a Matariki/Matariki Observance Day, and Labour Day; and
ab: if Waitangi Day or Anzac Day falls on a Saturday or a Sunday, the following Monday; and
b: a day in the period commencing with 25 December in any year and ending with 15 January in the following year.
1A:
2: In this Act,—
a: a reference to engaging in conduct
i: the entering into, or the giving effect to a provision of, a contract or arrangement; or
ii: the arriving at, or the giving effect to a provision of, an understanding; or
iii: the requiring of the giving of, or the giving effect to a provision of,
b: a reference to conduct
i: the entering into, or the giving effect to a provision of, a contract or arrangement; or
ii: the arriving at, or the giving effect to a provision of, an understanding; or
iii: the requiring of the giving of, or the giving of, or the giving effect to a provision of,
c: a reference to refusing to do an act
i: refraining (otherwise than inadvertently) from doing that act; or
ii: making it known that that act will not be done:
d: a reference to a person offering to do an act to do an act on a particular condition
3: Where any provision of this Act is expressed to render a provision of a contract or a covenant unenforceable if the provision of the contract or the covenant has or is likely to have a particular effect, that provision of this Act applies in relation to the provision of the contract or the covenant at any time when the provision of the contract or the covenant has or is likely to have that effect, notwithstanding that—
a: at an earlier time the provision of the contract or the covenant did not have that effect or was not regarded as likely to have that effect; or
b: the provision of the contract or the covenant will not or may not have that effect at a later time.
4: In this Act,
a: a reference to the acquisition of goods
b: a reference to the supply or acquisition of goods or services
c: a reference to the supply or acquisition of goods
d: a reference to the supply or acquisition of services
e: a reference to the resupply of goods acquired from a person
i: a supply of the goods to another person in an altered form or condition; and
ii: a supply to another person of other goods in which the goods have been incorporated.
5: For the purposes of this Act,
a: a provision of a contract, arrangement or understanding, or a covenant shall be deemed to have had, or to have, a particular purpose if—
i: the provision was or is included in the contract, arrangement or understanding, or the covenant was or is required to be given, for that purpose or purposes that included or include that purpose; and
ii: that purpose was or is a substantial purpose:
b: a person shall be deemed to have engaged, or to engage, in conduct for a particular purpose or a particular reason if—
i: that person engaged or engages in that conduct for that purpose or reason or for purposes or reasons that included or include that purpose or reason; and
ii: that purpose or reason was or is a substantial purpose or reason.
6: In this Act,
a: a reference to a contract
b: a reference to making or entering into a contract
c: a reference to a party to a contract, in relation to such a lease or licence, shall be read as including a reference to any person bound by, or entitled to the benefit of, any provision contained in the lease or licence:
d: a reference to a party to a covenant means a person who—
i: is bound by, or entitled to the benefit of, the covenant; or
ii: would be bound by, or entitled to the benefit of, the covenant if not for section 28(4) 30C
7: For the purposes of this Act, any 2 bodies corporate are to be treated as interconnected
a: one of them is a body corporate of which the other is a subsidiary (within the meaning of section 5
b: both of them are subsidiaries (within the meaning of that section) of the same body corporate; or
ba: both of them are entities referred to by any of the paragraphs (other than paragraph (e)) of the definition of transferor in section 2(1)
c: both of them are interconnected with bodies corporate that, in accordance with paragraph (a) or paragraph (b), are interconnected,— and interconnected bodies corporate
7A: For the purposes of subsection (7)﻿(a) and (b), no body corporate may be regarded as a subsidiary (within the meaning of section 5
8: For the purposes of this Act,
a: any contract or arrangement entered into, or understanding arrived at , or covenant given or required to be given, , arrived at, given, or required to be given
b: any recommendation made by an association or body of persons to its members or to any class of its members shall, notwithstanding anything to the contrary in the constitution or rules of the association or body of persons, be deemed to be an arrangement made between those members or the members of that class and between the association or body of persons and those members or the members of that class.
9: Nothing in subsection (8) applies to—
a: any member of an association or body of persons who expressly notifies the association or body in writing that he disassociates himself from the contract, arrangement, understanding, or covenant
b: to any member of an association or body of persons who establishes that he had no knowledge and could not reasonably have been expected to have had knowledge of the contract, arrangement, understanding, or covenant 1975 No 113 ss 2(1), 67A(3); 1976 No 67 ss 22, 23(3); 1979 No 140 s 2; 1983 No 144 s 26; Trade Practices Act 1974 ss 4, 4C, 4F, 4H (Aust) Section 2(1) accounting period replaced 1 April 2014 section 126 Financial Reporting (Amendments to Other Enactments) Act 2013 Section 2(1) acquire amended 5 May 2022 section 4(3) Commerce Amendment Act 2022 Section 2(1) acquire amended 15 August 2017 section 32(2)﻿(d) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 2(1) assets inserted 1 January 1991 section 2(1) Commerce Amendment Act 1990 Section 2(1) associate member inserted 25 January 2005 section 200 Crown Entities Act 2004 Section 2(1) Authority inserted 1 November 2010 section 146(1) Electricity Industry Act 2010 Section 2(1) business replaced 5 May 2022 section 4(4) Commerce Amendment Act 2022 Section 2(1) cartel provision inserted 15 August 2017 section 4 Commerce (Cartels and Other Matters) Amendment Act 2017 Section 2(1) chairman repealed 25 January 2005 section 200 Crown Entities Act 2004 Section 2(1) chairperson inserted 25 January 2005 section 200 Crown Entities Act 2004 Section 2(1) collaborative activity inserted 15 August 2017 section 4 Commerce (Cartels and Other Matters) Amendment Act 2017 Section 2(1) Commission substituted 25 January 2005 section 200 Crown Entities Act 2004 Section 2(1) Commissioner repealed 26 October 2018 section 17(1) Commerce Amendment Act 2018 Section 2(1) Consumers Price Index inserted 1 September 2022 section 107(1) Data and Statistics Act 2022 Section 2(1) covenant amended 15 August 2017 section 32(2)﻿(d) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 2(1) deputy chairman repealed 25 January 2005 section 200 Crown Entities Act 2004 Section 2(1) deputy chairperson inserted 25 January 2005 section 200 Crown Entities Act 2004 Section 2(1) Electricity Commission repealed 1 November 2010 section 146(2) Electricity Industry Act 2010 Section 2(1) give effect to amended 5 April 2023 section 4(5) Commerce Amendment Act 2022 Section 2(1) goods substituted 8 July 2003 section 3(1) Commerce Amendment Act 2003 Section 2(1) international liner shipping service inserted 15 August 2017 section 4 Commerce (Cartels and Other Matters) Amendment Act 2017 Section 2(1) market allocating inserted 15 August 2017 section 4 Commerce (Cartels and Other Matters) Amendment Act 2017 Section 2(1) member of the Commission substituted 25 January 2005 section 200 Crown Entities Act 2004 Section 2(1) member of the Commission inserted 10 July 2023 section 200 Grocery Industry Competition Act 2023 Section 2(1) Minister substituted 26 May 2001 section 5 Commerce Amendment Act 2001 Section 2(1) officer of the Commission repealed 25 January 2005 section 200 Crown Entities Act 2004 Section 2(1) overseas regulator inserted 5 May 2022 section 4(1) Commerce Amendment Act 2022 Section 2(1) place inserted 1 July 1990 section 2(2) Commerce Amendment Act 1990 Section 2(1) price amended 5 May 2022 section 4(6) Commerce Amendment Act 2022 Section 2(1) price fixing inserted 15 August 2017 section 4 Commerce (Cartels and Other Matters) Amendment Act 2017 Section 2(1) provision replaced 5 April 2023 section 4(7) Commerce Amendment Act 2022 Section 2(1) public service agency inserted 5 May 2022 section 4(1) Commerce Amendment Act 2022 Section 2(1) publicly available inserted 26 October 2018 section 17(2) Commerce Amendment Act 2018 Section 2(1) restricting output inserted 15 August 2017 section 4 Commerce (Cartels and Other Matters) Amendment Act 2017 Section 2(1) services added 8 July 2003 section 3(2) Commerce Amendment Act 2003 Section 2(1) share inserted 1 January 1991 section 2(3) Commerce Amendment Act 1990 Section 2(1) share amended 1 July 1994 section 2 Company Law Reform (Transitional Provisions) Act 1994 Section 2(1) substantial inserted 5 April 2023 section 4(2) Commerce Amendment Act 2022 Section 2(1) substantial repealed 1 January 1991 section 2(4) Commerce Amendment Act 1990 Section 2(1) supply replaced 5 May 2022 section 4(8) Commerce Amendment Act 2022 Section 2(1) trade amended 5 May 2022 section 4(9) Commerce Amendment Act 2022 Section 2(1) turnover inserted 26 May 2001 section 5 Commerce Amendment Act 2001 Section 2(1) working day replaced 12 April 2022 wehenga 7 Te Ture mō te Hararei Tūmatanui o te Kāhui o Matariki 2022 section 7 Te Kāhui o Matariki Public Holiday Act 2022 Section 2(1) working day inserted 1 January 2014 section 8 Holidays (Full Recognition of Waitangi Day and ANZAC Day) Amendment Act 2013 Section 2(1A) repealed 5 April 2023 section 4(10) Commerce Amendment Act 2022 Section 2(2)﻿(a)﻿(iii) amended 5 April 2023 section 4(11) Commerce Amendment Act 2022 Section 2(2)﻿(b)﻿(iii) amended 5 April 2023 section 4(12) Commerce Amendment Act 2022 Section 2(4) amended 15 August 2017 section 32(2)﻿(d) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 2(5) amended 15 August 2017 section 32(2)﻿(d) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 2(6) amended 15 August 2017 section 32(2)﻿(d) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 2(6)﻿(d) inserted 5 April 2023 section 4(13) Commerce Amendment Act 2022 Section 2(7) substituted 1 January 1991 section 2(6) Commerce Amendment Act 1990 Section 2(7)﻿(a) replaced 5 December 2013 section 14 Companies Amendment Act 2013 Section 2(7)﻿(b) replaced 5 December 2013 section 14 Companies Amendment Act 2013 Section 2(7)﻿(ba) inserted 1 January 2001 section 107(1) New Zealand Public Health and Disability Act 2000 Section 2(7)﻿(c) amended 15 August 2017 section 32(2)﻿(d) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 2(7A) replaced 5 December 2013 section 14 Companies Amendment Act 2013 Section 2(8) amended 15 August 2017 section 32(2)﻿(d) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 2(8)﻿(a) amended 5 April 2023 section 4(14)﻿(a) Commerce Amendment Act 2022 Section 2(8)﻿(a) amended 5 April 2023 section 4(14)﻿(b) Commerce Amendment Act 2022 Section 2(9)﻿(a) amended 5 April 2023 section 4(15) Commerce Amendment Act 2022 Section 2(9)﻿(b) amended 5 April 2023 section 4(15) Commerce Amendment Act 2022
3: Certain terms defined in relation to competition
1: In this Act, competition
1A: Every reference in this Act, except in section 36A market
1B:
1C:
2: In this Act, unless the context otherwise requires, references to the lessening of competition
3: For the purposes of this Act, the effect on competition in a market shall be determined by reference to all factors that affect competition in that market including competition from goods or services supplied or likely to be supplied by persons not resident or not carrying on business in New Zealand.
4: In sections 27 28 market
a: a market in which a person who is a party to the contract, arrangement, or understanding, or any interconnected body corporate, or, as the case may be, the person or any associated person (within the meaning of section 28(7)
b: any other market in which those goods or services may be supplied or acquired.
5: For the purposes of section 27
a: the other provisions of that contract, arrangement, or understanding; or
b: the provisions of any other contract, arrangement, or understanding to which that person or any interconnected body corporate is a party— taken together, have or are likely to have the effect of substantially lessening competition in that market.
6: For the purposes of section 28
a: that covenant; and
b: any other covenant to the benefit of which that person or an associated person (within the meaning of section 28(7) taken together, have or are likely to have the effect of substantially lessening competition in that market.
7: For the purposes of sections 27 28 36 36A
a: the engaging in that conduct; and
b: the engaging by that person in conduct of the same or a similar kind— taken together, have or are likely to have the effect of substantially lessening competition in that market.
8:
9: Trade Practices Act 1974 ss 4, 4E, 4G, 45(3), (4), 45B(4), 46 (Aust) Section 3(1) substituted 1 July 1990 section 3(1) Commerce Amendment Act 1990 Section 3(1) amended 15 August 2017 section 32(2)﻿(d) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 3(1A) inserted 1 July 1990 section 3(1) Commerce Amendment Act 1990 Section 3(1A) amended 5 April 2023 section 5(1) Commerce Amendment Act 2022 Section 3(1B) repealed 5 April 2023 section 5(2) Commerce Amendment Act 2022 Section 3(1C) repealed 5 April 2023 section 5(2) Commerce Amendment Act 2022 Section 3(7) amended 5 April 2023 section 5(3) Commerce Amendment Act 2022 Section 3(8) repealed 26 May 2001 section 9(4) Commerce Amendment Act 2001 Section 3(9) repealed 26 May 2001 section 11(3) Commerce Amendment Act 2001
3A: Commission to consider efficiency
Where the Commission is required under this Act to determine whether or not, or the extent to which, conduct will result, or will be likely to result, in a benefit to the public, the Commission shall have regard to any efficiencies that the Commission considers will result, or will be likely to result, from that conduct. Section 3A inserted 1 July 1990 section 4 Commerce Amendment Act 1990
4: Application of Act
1AA: For the purposes of this Act,—
a: a person engages in conduct in New Zealand if any act or omission forming part of the conduct occurs in New Zealand; and
b: a person ( person A person B section 90
1: This Act extends to the engaging in conduct outside New Zealand by any person resident or carrying on business in New Zealand to the extent that such conduct affects a market in New Zealand.
2: Without limiting subsection (1), section 36A
3: Section 4 substituted 1 July 1990 section 5 Commerce Amendment Act 1990 Section 4 heading amended 15 August 2017 section 5(1) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 4(1AA) inserted 15 August 2017 section 5(2) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 4(3) repealed 15 August 2017 section 5(3) Commerce (Cartels and Other Matters) Amendment Act 2017
5: Application of Act to the Crown
1: Subject to this section, this Act shall bind the Crown in so far as the Crown engages in trade.
2: The Crown shall not be liable to pay a pecuniary penalty under section 80
3: The Crown shall not be liable to be prosecuted for an offence against this Act.
4: Where it is alleged that the Crown has contravened any provision of this Act and that contravention constitutes an offence, the Commission or the person directly affected by the contravention may apply to the court for a declaration that the Crown has contravened that provision; and, if the court is satisfied beyond a reasonable doubt that the Crown has contravened that provision, it may make a declaration accordingly. 1975 No 113 s 20B; 1979 No 140 s 12; Trade Practices Act 1974 s 2A (Aust)
6: Application of Act to Crown corporations
1: This Act applies to every body corporate that is an instrument of the Crown in respect of the Government of New Zealand engaged in trade.
2: Notwithstanding any enactment or rule of law, proceedings under Part 6 1975 No 113 s 20A; 1979 No 140 s 11
6A: Special provisions relating to application of Act to the Crown in right of Australia and to Australian Crown corporations
1: The provisions referred to in subsection (2)
a: the Crown in right of the Commonwealth of Australia, each of the States of the Commonwealth of Australia, and the Northern Territory and the Australian Capital Territory, in so far as the Crown engages in trade; and
b: every body corporate that is an authority of the Commonwealth of Australia within the meaning of section 4 of the Competition and Consumer Act 2010
c: every body corporate established for a purpose of a State of the Commonwealth of Australia by or under a law of that State in so far as it engages in trade; and
d: every body corporate in which a State of the Commonwealth of Australia or in which a body corporate referred to in paragraph (c) has a controlling interest in so far as it engages in trade.
2: For the purposes of subsection (1), the provisions are—
a: section 36A
b: Part 5 section 36A
c: Schedule 1AA section 36A
d: Parts 6 7
i: section 36A
ii: Part 5 Schedule 1AA section 36A Section 6A inserted 1 July 1990 section 6 Commerce Amendment Act 1990 Section 6A(1) amended 5 April 2023 section 6(1) Commerce Amendment Act 2022 Section 6A(1)﻿(b) amended 15 August 2017 section 32(2)﻿(c) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 6A(2) inserted 5 April 2023 section 6(2) Commerce Amendment Act 2022
6B: Crown and Crown corporations not immune from jurisdiction in relation to certain provisions of
Competition and Consumer Act 2010 Neither the Crown nor a body corporate that is an instrument of the Crown in respect of the Government of New Zealand is immune, and neither the Crown nor such a body corporate may claim immunity, from the jurisdiction of the courts of New Zealand and Australia in relation to a contravention of section 46A of the Competition and Consumer Act 2010 Section 6B inserted 1 July 1990 section 6 Commerce Amendment Act 1990 Section 6B heading amended 15 August 2017 section 32(2)﻿(c) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 6B amended 15 August 2017 section 32(2)﻿(c) Commerce (Cartels and Other Matters) Amendment Act 2017
6C: Transitional, savings, and related provisions
The transitional, savings, and related provisions set out in Schedule 1AA Section 6C inserted 15 August 2017 section 6 Commerce (Cartels and Other Matters) Amendment Act 2017
6C: Application of Evidence Amendment Act 1980
Section 6C repealed 30 May 2017 section 9 Regulatory Systems (Commercial Matters) Amendment Act 2017
7: Relationship with law on restraint of trade
1: Nothing in this Act limits or affects any rule of law relating to restraint of trade not inconsistent with any of the provisions of this Act.
2:
3: No rule of law referred to in subsection (1) Trade Practices Act 1974 s 4M (Aust) Section 7 heading replaced 5 April 2023 section 7(1) Commerce Amendment Act 2022 Section 7(2) repealed 5 April 2023 section 7(2) Commerce Amendment Act 2022 Section 7(3) amended 5 April 2023 section 7(3) Commerce Amendment Act 2022
1: The Commerce Commission
8: Establishment of Commission
1: There is hereby established a commission to be called the Commerce Commission.
2: Except as expressly provided otherwise in this or any other Act, the Commission must act independently in performing its statutory functions and duties, and exercising its statutory powers, under—
a: this Act; and
b: any other Act that expressly provides for the functions, powers, or duties of the Commission (other than the Crown Entities Act 2004
3:
4: Section 8(2) substituted 25 January 2005 section 200 Crown Entities Act 2004 Section 8(3) repealed 25 January 2005 section 200 Crown Entities Act 2004 Section 8(4) repealed 1 July 1990 section 7 Commerce Amendment Act 1990
8A: Application of Crown Entities Act 2004
1: The Commission is a Crown entity for the purposes of section 7
2: The Crown Entities Act 2004
3: Members of the Commission are the board for the purposes of the Crown Entities Act 2004 Section 8A inserted 25 January 2005 section 200 Crown Entities Act 2004
9: Membership of Commission
1: The Commission must have no less than 4, and no more than 8 section 11(1)
2: No less than 3, and no more than 7 section 28(1)﻿(b)
3: One of the members must be appointed by the Governor-General as Telecommunications Commissioner under section 9
3A: One of the members must be appointed by the Governor-General as Grocery Commissioner under section 167
4: The Minister must not recommend a person for appointment as a member under subsection (2) unless,—
a: in the opinion of the Minister, that person is qualified for appointment, having regard to the functions of the Commission, by virtue of that person's knowledge of or experience in industry, commerce, economics, law, accountancy, public administration, or consumer affairs; and
b: in the case of a member who is a barrister or solicitor, the Minister has first consulted with the Attorney-General.
5: Subsections (2) and (4) do not limit section 29 Section 9 substituted 25 January 2005 section 200 Crown Entities Act 2004 Section 9(1) amended 5 May 2022 section 8(1) Commerce Amendment Act 2022 Section 9(2) amended 5 May 2022 section 8(2) Commerce Amendment Act 2022 Section 9(3A) inserted 10 July 2023 section 201 Grocery Industry Competition Act 2023
10: Terms and conditions of appointment
1:
2:
3:
4:
5: For the purpose of providing a superannuation fund or retiring allowance for members of the Commission, sums by way of subsidy or contribution may from time to time be paid into any retirement scheme (within the meaning of section 6(1)
6: 1975 No 113 ss 4(1), 10, 17B; 1979 No 140 s 9(1) Section 10(1) repealed 25 January 2005 section 200 Crown Entities Act 2004 Section 10(2) repealed 25 January 2005 section 200 Crown Entities Act 2004 Section 10(3) repealed 25 January 2005 section 200 Crown Entities Act 2004 Section 10(4) repealed 25 January 2005 section 200 Crown Entities Act 2004 Section 10(5) substituted 1 April 1991 section 80 National Provident Fund Restructuring Act 1990 Section 10(5) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 10(6) repealed 25 January 2005 section 200 Crown Entities Act 2004
11: Associate members
1: The Minister may from time to time appoint any person to be an associate member of the Commission.
1A: Subsection (1) applies despite section 28(1)﻿(b)
2: An associate member shall be appointed only in relation to a matter or a class of matters to be specified in that member's notice of appointment 5 years notice
3: Subject to subsection (4), an associate member shall be deemed to be a member of the Commission for the purposes of the performance or exercise of any function, duty, or power of a member of the Commission under this Act or any other Act or in any other Act to a member of the Commission must
4: An associate member may attend and vote only at a meeting of the Commission relating to the matter or class of matters specified in that member's notice of appointment
5: An associate member may only be appointed in relation to a matter or class of matters arising under an Act under which the Commission is required to act independently under section 8(2)
6: An associate member may not be appointed as chairperson, deputy chairperson, or a temporary deputy chairperson under clause 5 1975 No 113 s 3B; 1979 No 140 s 5; 1983 No 144 s 3 Section 11(1A) inserted 25 January 2005 section 200 Crown Entities Act 2004 Section 11(2) amended 25 January 2005 section 200 Crown Entities Act 2004 Section 11(3) amended 15 April 2004 section 3(1)﻿(a) Commerce Amendment Act 2004 Section 11(3) amended 15 April 2004 section 3(1)﻿(b) Commerce Amendment Act 2004 Section 11(4) amended 25 January 2005 section 200 Crown Entities Act 2004 Section 11(5) added 25 January 2005 section 200 Crown Entities Act 2004 Section 11(6) added 25 January 2005 section 200 Crown Entities Act 2004
12: Chairperson and deputy chairperson
1: One member appointed under section 9(2)
2: The chairperson and deputy chairperson may only be removed from office as chairperson or deputy chairperson for just cause.
3: In other respects, clauses 1(2) and (3) 4(2) and (3) Section 12 substituted 25 January 2005 section 200 Crown Entities Act 2004
13: Termination of appointment of members
1: The Governor-General may remove any member of the Commission appointed by the Governor-General from office under section 39
2: The Minister may remove any associate member from office on the same grounds and in the same manner as the Governor-General may remove a member under section 39
3: Subsection (2) applies despite section 39(1)
4: Notwithstanding that the term of office of a member has expired or that a member has resigned that office, that person shall be deemed to continue as a member for the purpose of—
a: completing the determination of any matter before that person, as a member, which was commenced before the expiration of the term of office or before the resignation took effect, as the case may be:
b: giving reconsideration to any matter following a direction of the court under Part 6
5: Subsection (4) applies despite sections 32(3) 45
6: To avoid doubt, a former member who is deemed to continue as a member under subsection (4) is not a member for the purposes of determining the number of members under section 9(1) or (2) 1975 No 113 s 4(2), (3); 1976 No 67 s 23(3); 1979 No 140 s 6 Section 13(1) substituted 25 January 2005 section 200 Crown Entities Act 2004 Section 13(2) substituted 25 January 2005 section 200 Crown Entities Act 2004 Section 13(3) substituted 25 January 2005 section 200 Crown Entities Act 2004 Section 13(5) added 25 January 2005 section 200 Crown Entities Act 2004 Section 13(6) inserted 5 May 2022 section 9 Commerce Amendment Act 2022
14: Disclosure of financial interests
Section 14 repealed 25 January 2005 section 200 Crown Entities Act 2004
15: Meetings of Commission
1:
2:
2A:
3:
4: At any meeting of the Commission
5: Subsection (4) applies despite clause 9(1) and (2)
6:
7: Subject to the provisions of this Act, the chairperson 1975 No 113 s 6; 1983 No 144 s 5(1), (2) Section 15(1) repealed 25 January 2005 section 200 Crown Entities Act 2004 Section 15(2) repealed 25 January 2005 section 200 Crown Entities Act 2004 Section 15(2A) repealed 25 January 2005 section 200 Crown Entities Act 2004 Section 15(3) repealed 25 January 2005 section 200 Crown Entities Act 2004 Section 15(4) amended 15 April 2004 section 4(3) Commerce Amendment Act 2004 Section 15(5) substituted 25 January 2005 section 200 Crown Entities Act 2004 Section 15(6) repealed 25 January 2005 section 200 Crown Entities Act 2004 Section 15(7) amended 25 January 2005 section 200 Crown Entities Act 2004
16: Chairperson
1: The chairperson or any other Act
1A: The powers in subsection (1) are an exception to clause 14
2: Each Division shall consist of such members as are for the time being assigned to that Division by the chairperson
3: If the members appointed to any Division do not include either the chairperson deputy chairperson chairperson chairperson
4: In the absence of the member so nominated from any meeting of the Division, the members present shall appoint one of their number to be the chairperson
5: For the purpose of the determination of a matter or class of matters specified in a direction given under subsection (1), the Commission shall be deemed to consist of the Division of the Commission specified in the direction; and the powers of any such Division shall not be affected by any changes or vacancies in its membership.
6: A Division of the Commission may exercise powers of the Commission under this Act or any other Act
7: Any direction given under subsection (1) may be revoked or amended by the chairperson 1975 No 113 s 7; 1976 No 67 s 7 Section 16 heading amended 25 January 2005 section 200 Crown Entities Act 2004 Section 16(1) amended 25 January 2005 section 200 Crown Entities Act 2004 Section 16(1) amended 15 April 2004 section 5(1) Commerce Amendment Act 2004 Section 16(1A) inserted 25 January 2005 section 200 Crown Entities Act 2004 Section 16(2) amended 25 January 2005 section 200 Crown Entities Act 2004 Section 16(3) amended 25 January 2005 section 200 Crown Entities Act 2004 Section 16(4) amended 25 January 2005 section 200 Crown Entities Act 2004 Section 16(6) amended 15 April 2004 section 5(2) Commerce Amendment Act 2004 Section 16(7) amended 25 January 2005 section 200 Crown Entities Act 2004
17: Assent to determination
1: A determination in writing signed, or assented to in writing (whether sent by post, delivery, or electronic communication)
2: This section applies despite clause 13 1975 No 113 s 7A; 1983 No 144 s 6 Section 17(1) amended 25 January 2005 section 200 Crown Entities Act 2004 Section 17(2) added 25 January 2005 section 200 Crown Entities Act 2004
18: Officers and employees
Section 18 repealed 25 January 2005 section 200 Crown Entities Act 2004
18A: Personnel policy
Section 18A repealed 25 January 2005 section 200 Crown Entities Act 2004
18B: Equal employment opportunities
Section 18B repealed 25 January 2005 section 200 Crown Entities Act 2004
18C: Choice of procedure
Section 18C repealed 1 December 2004 section 72 Employment Relations Amendment Act (No 2) 2004
18D: Superannuation and retiring allowances
1:
2: Notwithstanding anything in this Act, any person who, immediately before the commencement of this Act was assisting the Commission by virtue of an appointment under section 18(1) Part 2 Government Superannuation Fund Act 1956
3: Subject to the Government Superannuation Fund Act 1956 Section 18D inserted 1 July 1990 section 10 Commerce Amendment Act 1990 Section 18D(1) repealed 25 January 2005 section 200 Crown Entities Act 2004
19: Money to be appropriated by Parliament for purposes of this Act
Section 19 repealed 25 January 2005 section 200 Crown Entities Act 2004
20: Funds of Commission
Section 20 repealed 25 January 2005 section 200 Crown Entities Act 2004
21: Bank accounts
Section 21 repealed 25 January 2005 section 200 Crown Entities Act 2004
22: Crown entity
Section 22 repealed 25 January 2005 section 200 Crown Entities Act 2004
23: Investment of money
Section 23 repealed 25 January 2005 section 200 Crown Entities Act 2004
24: Exemption from income tax
The income of the Commission shall be exempt from income tax. 1975 No 113 s 19F; 1983 No 144 s 12
25: Functions of Commission in relation to dissemination of information
In addition to the functions conferred on the Commission by this Act, the Commission shall make available or co-operate in making available information with respect to—
a: the carrying out of the functions and the exercise of the powers of the Commission under this Act; and
b: the purposes and provisions of this Act. 1975 No 113 s 11(1A); 1983 No 144 s 7; Trade Practices Act 1974 s 28(1)﻿(a) (Aust)
26: Commission to have regard to economic policies of Government
1: In the exercise of its powers under
2: The Minister shall cause every statement of economic policy transmitted to the Commission under subsection (1) to be published in the Gazette
3: For the avoidance of doubt, a statement of economic policy transmitted to the Commission under this section is not a direction for the purposes of Part 3 1975 No 113 s 2A(1)﻿(e); 1976 No 67 s 3; Trade Practices Act 1974 s 29 (Aust) Section 26(1) amended 1 July 1990 section 12 Commerce Amendment Act 1990 Section 26(3) added 25 January 2005 section 200 Crown Entities Act 2004
2: Restrictive trade practices
Contracts, arrangements, understandings, or covenants substantially lessening competition Heading replaced 5 April 2023 section 10 Commerce Amendment Act 2022
27: Contracts, arrangements, or understandings substantially lessening competition prohibited
1: No person shall enter into a contract or arrangement, or arrive at an understanding, containing a provision that has the purpose, or has or is likely to have the effect, of substantially lessening competition in a market.
2: No person shall give effect to a provision of a contract, arrangement, or understanding that has the purpose, or has or is likely to have the effect, of substantially lessening competition in a market.
3: Subsection (2) applies in respect of a contract or arrangement entered into, or an understanding arrived at, whether before or after the commencement of this Act.
4: No provision of a contract, whether made before or after the commencement of this Act, that has the purpose, or has or is likely to have the effect, of substantially lessening competition in a market is enforceable. Trade Practices Act 1974 s 45(1), (2) (Aust)
28: Covenants substantially lessening competition prohibited
1: No person, either on his own or on behalf of an associated person, shall—
a: require the giving of a covenant; or
b: give a covenant— that has the purpose, or has or is likely to have the effect, of substantially lessening competition in a market.
2: No person, either on his own or on behalf of an associated person, shall carry out or enforce the terms of a covenant that has the purpose, or has or is likely to have the effect, of substantially lessening competition in a market.
3: Subsection (2) applies to a covenant whether given before or after the commencement of this Act.
4: No covenant, whether given before or after the commencement of this Act, that has the purpose, or has or is likely to have the effect of substantially lessening competition in a market is enforceable.
5: No person shall—
a: threaten to engage in particular conduct if a person who, but for subsection (4), would be bound by a covenant, does not comply with the terms of the covenant; or
b: engage in particular conduct because a person who, but for subsection (4), would be bound by a covenant, has failed to comply, or proposes or threatens to fail to comply, with the terms of the covenant.
6: For the purposes of this section, where
a: issues an invitation to another person to enter into a contract containing a covenant; or
b: makes an offer to another person to enter into a contract containing a covenant; or
c: makes it known that the person will not enter into a contract of a particular kind unless the contract contains a covenant of a particular kind or in particular terms,— that person shall, by issuing that invitation, making that offer, or making that fact known, be deemed to require the giving of the covenant.
7: For the purposes of this section, 2 persons shall be taken to be associated with each other in relation to a covenant or proposed covenant if, but only if,—
a: one person is under an obligation (otherwise than in pursuance of the covenant or proposed covenant), whether formal or informal, to act in accordance with the directions, instructions, or wishes of the other person in relation to the covenant or proposed covenant; or
b: the persons are interconnected bodies corporate. Trade Practices Act 1974 s 45B(1)–(3), (7) (Aust) Section 28(6) amended 5 April 2023 section 11 Commerce Amendment Act 2022
28A: Certain grocery-related covenants are treated as prohibited and unenforceable
1: A covenant to which this section applies must be treated, for the purpose of section 27 28
2: This section applies to any of the following in which a designated grocery retailer has an interest:
a: a restrictive or positive covenant that has the purpose, or has or is likely to have the effect, of impeding the development or use of land or a site as—
i: a retail grocery store; or
ii: any other retail store that is likely to compete with a retail grocery store operated by the designated grocery retailer:
b: a restrictive or positive covenant, and the provisions of any other contracts, arrangements, understandings, or covenants, if—
i: the restrictive or positive covenant has 1 or more of the same parties as the contract, arrangement, understanding, or covenant; and
ii: taken together, the restrictive or positive covenant and the provisions have the purpose, or have or are likely to have the effect, of impeding the development or use of land or a site as—
A: a retail grocery store; or
B: any other retail store that is likely to compete with a retail grocery store operated by the designated grocery retailer:
c: an exclusivity covenant or other provision in a lease that has the purpose, or has or is likely to have the effect, of impeding another person from operating—
i: a retail grocery store; or
ii: any other retail store that is likely to compete with a retail grocery store operated by the designated grocery retailer:
d: an exclusivity covenant or other provision in a lease, and the provisions of any other contracts, arrangements, understandings, or covenants, if—
i: the lease has 1 or more of the same parties as the contract, arrangement, understanding, or covenant; and
ii: taken together, the exclusivity covenant or other provision in the lease and the provisions have the purpose, or have or are likely to have the effect, of impeding another person from operating—
A: a retail grocery store; or
B: any other retail store that is likely to compete with a retail grocery store operated by the designated grocery retailer.
3: However, this section does not apply to—
a: a covenant that is reasonably necessary for environmental impact reasons connected with a retail fuel site within the meaning of the Fuel Industry Act 2020
b: a covenant in respect of which the Commission has granted an authorisation under section 58 section 65A
4: In this section, unless the context otherwise requires,— covenant designated grocery retailer
a: Foodstuffs North Island Limited, Foodstuffs South Island Limited, and Woolworths New Zealand Limited:
b: a person that is designated as a designated grocery retailer by the Governor-General by Order in Council made under section 28C
c: a person that is a successor to a person referred to in paragraph (a):
d: a person that is a franchisee, or a transacting shareholder (within the meaning of the Co-operative Companies Act 1996
e: a person that is an interconnected body corporate or associated person (within the meaning of section 47 exclusivity covenant grocery product retail grocery store
5: A designated grocery retailer has an interest
a: if the person is or was a party to the covenant; or
b: if the person is or was a party to any contract, arrangement, or understanding that resulted in the giving of the covenant or to the inclusion of the covenant in a lease; or
c: if the person required, or is deemed by section 28(6)
d: if the person gives effect to, carries out, or enforces the terms or provisions of the covenant; or
e: if the person takes any action described in section 28(5)
6: Subsection (1) does not limit any other provision of this Part.
7: If this section applies, the reference in section 61(6) Section 28A inserted 30 June 2022 section 4 Commerce (Grocery Sector Covenants) Amendment Act 2022
28B: Process for voluntary removal of grocery-related covenant from register of land
1: This section applies if—
a: a designated grocery retailer is satisfied that they have an interest in a covenant—
i: to which section 28A
ii: that is noted on the record of title created under section 12
b: as at the commencement date, the designated grocery retailer would, if not for Part 2 section 301 307B
2: The designated grocery retailer may—
a: revoke the covenant; or
b: modify the covenant so that section 28A
3: The revocation or modification must be effected using the process for the notation of covenants set out in section 116
4: However, despite section 116(5)
5: This section is repealed on the second anniversary of the commencement date.
6: In this section,— burdened land benefited land Part 2 commencement date Commerce (Grocery Sector Covenants) Amendment Act 2022 designated grocery retailer section 28A has an interest section 28A 2024-06-30 Commerce Act 1986 This section repeals itself (see 28B(5)) Section 28B inserted 30 June 2022 section 4 Commerce (Grocery Sector Covenants) Amendment Act 2022
28C: Process for designations for purpose of section 28A
1: The Governor-General may, on the recommendation of the Minister, make an Order in Council designating a person as a designated grocery retailer for the purpose of section 28A
2: The Minister may recommend to the Governor-General that a person be designated as a designated grocery retailer only after receiving a recommendation from the Commission.
3: The Commission may recommend to the Minister that a person be designated as a designated grocery retailer only—
a: after consulting the person about the proposed designation (including the Commission’s reasons for proposing to recommend the designation); and
b: if the Commission has taken into account the following criteria:
i: whether the person carries on, or is likely to carry on, a business of supplying all or a majority of categories of grocery products to consumers; and
ii: whether designation of the person as a designated grocery retailer would be likely to promote competitive neutrality (that is, a level playing field) or to otherwise promote competition, having regard to the extent to which the person supplies, or is likely to supply, groceries in competition with 1 or more designated grocery retailers.
4: The Commission’s recommendation must advise the Minister whether the Commission considers that those criteria are met.
5: In deciding whether to make a recommendation, the Minister may do any of the following:
a: accept the Commission’s recommendation if the Minister is satisfied that those criteria are met:
b: reject the Commission’s recommendation:
c: request that the Commission reconsider any matter (such as an error, an oversight, or competing policy interests):
d: make any other decision that the Minister considers is in the public interest.
6: The Commission must make the recommendation publicly available as soon as practicable after making it, including a statement of its reasons for making the recommendation.
7: An order made under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 28C inserted 30 June 2022 section 4 Commerce (Grocery Sector Covenants) Amendment Act 2022
28D: Commission may require designated grocery retailer to supply information about contract, etc, to which section 28A may apply
1: For the purpose of assessing compliance with the provisions listed in subsection (2), the Commission may, by written notice, require a designated grocery retailer to—
a: supply to the Commission information relating to any contract, arrangement, understanding, or covenant (including any process relating to the negotiation or renegotiation of that contract, arrangement, understanding, or covenant)—
i: to which section 28A
ii: that contains a provision to which section 28A
b: supply that information within the time and in the manner specified in the notice.
2: The provisions are—
a: sections 27 28 28A 36 47
b: sections 7 8 23 26B
3: Part 7 section 98
4: This section does not limit any of the Commission’s other functions, duties, or powers under this Act or any other legislation.
5: In this section, designated grocery retailer section 28A Section 28D inserted 30 June 2022 section 4 Commerce (Grocery Sector Covenants) Amendment Act 2022
29: Contracts, arrangements, or understandings containing exclusionary provisions prohibited
Section 29 repealed 15 August 2017 section 7 Commerce (Cartels and Other Matters) Amendment Act 2017 Cartel provisions Heading replaced 15 August 2017 section 8 Commerce (Cartels and Other Matters) Amendment Act 2017
30: Contracts, arrangements, understandings, or covenants containing cartel provisions prohibited
1: No person may—
a: enter into a contract or arrangement, or arrive at an understanding, that contains a cartel provision; or
ab: give, or require the giving of, a covenant that contains a cartel provision; or
b: give effect to a cartel provision.
2: See section 80 section 82B Section 30 replaced 15 August 2017 section 8 Commerce (Cartels and Other Matters) Amendment Act 2017 Section 30 heading replaced 5 April 2023 section 12(1) Commerce Amendment Act 2022 Section 30(1)﻿(ab) inserted 5 April 2023 section 12(2) Commerce Amendment Act 2022 Section 30(2) inserted 8 April 2021 section 5 Commerce (Criminalisation of Cartels) Amendment Act 2019
30A: Meaning of cartel provision and related terms
1: A cartel provision understanding, or covenant
a: price fixing:
b: restricting output:
c: market allocating.
2: In this Act, price fixing understanding, or covenant
a: the price for goods or services that any 2 or more parties to the contract, arrangement, understanding, or covenant
b: any discount, allowance, rebate, or credit in relation to goods or services that any 2 or more parties to the contract, arrangement, understanding, or covenant
3: In this Act, restricting output
a: the production or likely production by any party to a contract, arrangement, understanding, or covenant understanding, or covenant
b: the capacity or likely capacity of any party to a contract, arrangement, understanding, or covenant understanding, or covenant
c: the supply or likely supply of goods or services that any 2 or more parties to a contract, arrangement, understanding, or covenant
d: the acquisition or likely acquisition of goods or services that any 2 or more parties to a contract, arrangement, understanding, or covenant
4: In this Act, market allocating understanding, or covenant
a: the persons or classes of persons to or from whom the parties supply or acquire goods or services in competition with each other:
b: the geographic areas in which the parties supply or acquire goods or services in competition with each other. Section 30A inserted 15 August 2017 section 8 Commerce (Cartels and Other Matters) Amendment Act 2017 Section 30A(1) amended 5 April 2023 section 13 Commerce Amendment Act 2022 Section 30A(2) amended 5 April 2023 section 13 Commerce Amendment Act 2022 Section 30A(2)﻿(a) amended 5 April 2023 section 13 Commerce Amendment Act 2022 Section 30A(2)﻿(b) amended 5 April 2023 section 13 Commerce Amendment Act 2022 Section 30A(3)﻿(a) amended 5 April 2023 section 13 Commerce Amendment Act 2022 Section 30A(3)﻿(b) amended 5 April 2023 section 13 Commerce Amendment Act 2022 Section 30A(3)﻿(c) amended 5 April 2023 section 13 Commerce Amendment Act 2022 Section 30A(3)﻿(d) amended 5 April 2023 section 13 Commerce Amendment Act 2022 Section 30A(4) amended 5 April 2023 section 13 Commerce Amendment Act 2022
30B: Additional interpretation relating to cartel provisions
In this Act, in relation to a cartel provision,—
a: if a person is a party to a contract, arrangement, understanding, or covenant understanding, or covenant
b: if a person ( person A person B
c: a reference to persons in competition with each other for the supply or acquisition of goods or services includes a reference to—
i: persons who are, or are likely to be, in competition with each other in relation to the supply or acquisition of those goods or services; and
ii: persons who, but for a cartel provision relating to those goods or services, would, or would be likely to, be in competition with each other in relation to the supply or acquisition of those goods or services. Section 30B inserted 15 August 2017 section 8 Commerce (Cartels and Other Matters) Amendment Act 2017 Section 30B(a) amended 5 April 2023 section 14 Commerce Amendment Act 2022
30C: Cartel provisions generally unenforceable
1: No cartel provision is enforceable.
2: However, nothing in subsection (1) affects the enforceability of a cartel provision in—
a: a contract or covenant to which section 31
b: a contract to which section 32 33 44A(4) or (5) 44B Section 30C inserted 15 August 2017 section 8 Commerce (Cartels and Other Matters) Amendment Act 2017 Section 30C(2) replaced 5 April 2023 section 15 Commerce Amendment Act 2022
31: Exception for collaborative activity
Exception for entering into cartel provision
1: Nothing in section 30(1)﻿(a)
a: the person and 1 or more other parties to the contract, arrangement, or understanding are involved in a collaborative activity; and
b: the cartel provision is reasonably necessary for the purpose of the collaborative activity. Exception for giving, or requiring the giving of, covenant containing cartel provision
1A: Nothing in section 30(1)﻿(ab)
a: the person and 1 or more other parties to the covenant are involved in a collaborative activity; and
b: the cartel provision is reasonably necessary for the purpose of the collaborative activity. Exceptions for giving effect to cartel provision
2: Nothing in section 30(1)﻿(b)
a: the person and 1 or more other parties to the contract, arrangement, understanding, or covenant
b: the cartel provision is reasonably necessary for the purpose of the collaborative activity.
3: Nothing in section 30(1)﻿(b)
a: the person and 1 or more other parties to the contract, arrangement, understanding, or covenant that contains the provision
b: the cartel provision was reasonably necessary for the purpose of the collaborative activity; and
c: the collaborative activity did not end because the lessening of competition between any 2 or more parties became its dominant purpose. Meaning of collaborative activity
4: In this Act, collaborative activity
a: is carried on in co-operation by 2 or more persons; and
b: is not carried on for the dominant purpose of lessening competition between any 2 or more of the parties.
5: The purpose referred to in subsection (4)﻿(b) may be inferred from the conduct of any relevant person or from any other relevant circumstance. Section 31 replaced 15 August 2017 section 8 Commerce (Cartels and Other Matters) Amendment Act 2017 Section 31(1) amended 8 April 2021 section 6(1) Commerce (Criminalisation of Cartels) Amendment Act 2019 Section 31(1A) heading inserted 5 April 2023 section 16(1) Commerce Amendment Act 2022 Section 31(1A) inserted 5 April 2023 section 16(1) Commerce Amendment Act 2022 Section 31(2) amended 8 April 2021 section 6(2) Commerce (Criminalisation of Cartels) Amendment Act 2019 Section 31(2)﻿(a) amended 5 April 2023 section 16(2) Commerce Amendment Act 2022 Section 31(3) amended 8 April 2021 section 6(3) Commerce (Criminalisation of Cartels) Amendment Act 2019 Section 31(3)﻿(a) amended 5 April 2023 section 16(3) Commerce Amendment Act 2022 Section 31(3)﻿(a) amended 26 October 2018 section 19 Commerce Amendment Act 2018
32: Exception for vertical supply contracts
1: Nothing in section 30
a: the contract is entered into between a supplier or likely supplier of goods or services and a customer or likely customer of that supplier; and
b: the cartel provision—
i: relates to the supply or likely supply of the goods or services to the customer or likely customer, including to the maximum price at which the customer or likely customer may resupply the goods or services; and
ii: does not have the dominant purpose of lessening competition between any 2 or more of the parties to the contract.
2: The purpose referred to in subsection (1)﻿(b)﻿(ii) may be inferred from the conduct of any relevant person or from any other relevant circumstance. Section 32 replaced 15 August 2017 section 8 Commerce (Cartels and Other Matters) Amendment Act 2017
33: Exception for joint buying and promotion agreements
A provision in a contract, arrangement, or understanding does not have the purpose, effect, or likely effect of price fixing if the provision—
a: relates to the price for goods or services to be collectively acquired, whether directly or indirectly, by some or all of the parties to the contract, arrangement, or understanding; or
b: provides for joint advertising of the price for the resupply of goods or services acquired in accordance with paragraph (a); or
c: provides for a collective negotiation of the price for goods or services followed by individual purchasing at the collectively negotiated price; or
d: provides for an intermediary to take title to goods and resell or resupply them to another party to the contract, arrangement, or understanding. Section 33 replaced 15 August 2017 section 8 Commerce (Cartels and Other Matters) Amendment Act 2017
34: Certain provisions of covenants with respect to prices deemed to substantially lessen competition
Section 34 repealed 15 August 2017 section 8 Commerce (Cartels and Other Matters) Amendment Act 2017 Practices substantially lessening competition conditional upon authorisation Heading repealed 15 August 2017 section 8 Commerce (Cartels and Other Matters) Amendment Act 2017
35: Contracts or covenants subject to authorisation not prohibited under certain conditions
Section 35 repealed 26 May 2001 section 8 Commerce Amendment Act 2001 Misuse of market power Heading replaced 5 April 2023 section 17 Commerce Amendment Act 2022
36: Misuse of market power
1: A person that has a substantial degree of power in a market must not engage in conduct that has the purpose, or has or is likely to have the effect, of substantially lessening competition in—
a: that market; or
b: any other market in which the person, or an interconnected person,—
i: supplies or acquires, or is likely to supply or acquire, goods or services; or
ii: supplies or acquires, or is likely to supply or acquire, goods or services indirectly through 1 or more other persons.
2: In this section, a person has a substantial degree of power in a market
a: the person has a substantial degree of power in the market; or
b: the person, together with 1 or more interconnected persons, has a substantial degree of power in the market; or
c: 1 or more interconnected persons of the person have a substantial degree of power in the market; or
d: 2 or more interconnected persons together have a substantial degree of power in the market. Competition and Consumer Act 2010 s 46 (Aust) Section 36 replaced 5 April 2023 section 17 Commerce Amendment Act 2022
36A: Misuse of market power in trans-Tasman markets
1: Subsection (2) applies if 1 or more of the following applies to a person:
a: the person has a substantial degree of power in a market in New Zealand:
b: the person has a substantial degree of power in a market in Australia:
c: the person has a substantial degree of power in a market in New Zealand and Australia.
2: The person must not engage in conduct that has the purpose, or has or is likely to have the effect, of substantially lessening competition in—
a: a market in New Zealand in which the person has a substantial degree of power (if any) and that is not a market exclusively for services; or
b: any other market in New Zealand, not being a market exclusively for services, in which the person, or an interconnected person,—
i: supplies or acquires, or is likely to supply or acquire, goods or services; or
ii: supplies or acquires, or is likely to supply or acquire, goods or services indirectly through 1 or more other persons.
3: In this section, a person has a substantial degree of power in a market
a: the person has a substantial degree of power in the market; or
b: the person, together with 1 or more interconnected persons, has a substantial degree of power in the market; or
c: 1 or more interconnected persons of the person have a substantial degree of power in the market; or
d: 2 or more interconnected persons together have a substantial degree of power in the market.
4: In this section, market
5: Section 36A does not limit section 36 Competition and Consumer Act 2010 s 46A (Aust) Section 36A replaced 5 April 2023 section 17 Commerce Amendment Act 2022
36B: Purposes may be inferred
The existence of any of the purposes specified in section 36 section 36A Section 36B inserted 26 May 2001 section 9(1) Commerce Amendment Act 2001 Resale price maintenance
37: Resale price maintenance by suppliers prohibited
1: No person shall engage in the practice of resale price maintenance.
2: For the purposes of this section, a resale price maintenance
3: The acts referred to for the purposes of subsection (2) are—
a: the supplier making it known to another person that the supplier will not supply goods to the other person unless the other person agrees not to sell those goods at a price less than a price specified by the supplier:
b: the supplier inducing, or attempting to induce, another person not to sell, at a price less than a price specified by the supplier, goods supplied to the other person by the supplier or by a third person who, directly or indirectly, has obtained the goods from the supplier:
c: the supplier entering or offering to enter into an agreement, for the supply of goods to another person, where one of the terms is or would be that the other person will not sell the goods at a price less than a price specified, or that would be specified, by the supplier:
d: the supplier withholding the supply of goods to another person for the reason that the other person—
i: has not agreed to the condition mentioned in paragraph (a); or
ii: has sold, or is likely to sell, goods supplied to him by the supplier, or goods supplied to him by a third person who, directly or indirectly, has obtained the goods from the supplier, at a price less than a price specified by the supplier as the price below which the goods are not to be sold:
e: the supplier withholding the supply of goods to another person for the reason that a third person who, directly or indirectly, has obtained, or wishes to obtain, goods from the other person—
i: has not agreed not to sell those goods at a price less than a price specified by the supplier; or
ii: has sold or is likely to sell goods supplied or to be supplied to that third person, by the other person, at a price less than a price specified by the supplier as the price below which the goods are not to be sold.
4: For the purposes of subsection (3),—
a: where the supplier makes it known, in respect of any goods, that the price below which those goods are not to be sold is a price specified by another person in respect of those goods, or in respect of goods of a like description, that price shall be deemed to have been specified, in respect of the first-mentioned goods, by the supplier:
b: where a set form, method, or formula is specified by or on behalf of the supplier and a price may be ascertained by calculation from, or by reference to, that set form, method, or formula, that price shall be deemed to have been specified by the supplier:
c: where the supplier makes it known, in respect of any goods, that the price below which those goods are not to be sold is a price ascertained by calculation from or by reference to a set form, method, or formula specified by another person in respect of those goods, or in respect of goods of a like description, that price shall be deemed to have been specified, in respect of the first-mentioned goods, by the supplier:
d: where the supplier makes a statement to another person of a price that is likely to be understood by that person as the price below which goods are not to be sold, that price shall be deemed to have been specified by the supplier as the price below which the goods are not to be sold:
e: anything done by a person acting on behalf of, or by arrangement with, the supplier shall be deemed to have been done by the supplier.
5: For the purposes of this section, sale sell selling sold Section 37(2) amended 15 August 2017 section 32(2)﻿(d) Commerce (Cartels and Other Matters) Amendment Act 2017
38: Resale price maintenance by others prohibited
1: No person (in this section referred to as the third party) shall—
a: make it known to another person that the third party proposes to engage in conduct, whether alone or in concert with any other person, that will hinder or prevent the supply of any goods to, or the acquisition of any goods from, that person unless that person agrees not to sell those goods at a price less than the price specified by the third party; or
b: engage in conduct, whether alone or in concert with any other person, that will hinder or prevent the supply of goods to, or the acquisition of goods from, another person for the purpose of inducing that person not to sell those goods at a price less than a price specified by the third party.
2: For the purposes of subsection (1),—
a: where the third party makes it known, in respect of any goods, that the price below which those goods are not to be sold is a price specified by another person in respect of those goods, or in respect of goods of a like description, that price shall be deemed to have been specified in respect of the first-mentioned goods, by the third party:
b: where a set form, method, or formula is specified by or on behalf of the third party and a price may be ascertained by calculation from, or by reference to, that set form, method, or formula, that price shall be deemed to have been specified by the third party:
c: where the third party makes it known, in respect of any goods, that the price below which those goods are not to be sold is a price ascertained by calculation from or by reference to a set form, method, or formula specified by another person in respect of those goods, or in respect of goods of a like description, that price shall be deemed to have been specified, in respect of the first-mentioned goods, by the third party:
d: where the third party makes a statement to another person of a price that is likely to be understood by that person as the price below which goods are not to be sold, that price shall be deemed to have been specified by the third party as the price below which the goods are not to be sold:
e: anything done by a person acting on behalf of, or by arrangement with, the third party shall be deemed to have been done by the third party.
3: For the purposes of this section sale sell selling sold
39: Recommended prices
For the purposes of section 37(3)﻿(b)
a: a statement of a price is applied or used in relation to the goods or is applied to a covering, label, reel, or thing if the statement is preceded by the words “recommended price”; or
b: the supplier has given notification in writing to the other person (not being a notification in the form of a statement applied to the goods or to any covering, label, reel, or thing as mentioned in paragraph (a)) of the price that the supplier recommends as appropriate for the sale of those goods, if the notification, and each writing that refers, whether expressly or by implication, to the notification, includes a statement to the effect that the price is a recommended price only and there is no obligation to comply with the recommendation. Trade Practices Act 1974 s 97 (Aust)
40: Withholding the supply of goods
For the purposes of section 37(3)﻿(d) and (e)
a: the supplier refuses or fails to supply those goods to, or as requested by, the other person; or
b: the supplier refuses to supply those goods except on terms that are disadvantageous to the other person; or
c: in supplying those goods to the other person, the supplier treats that person less favourably, whether in respect of time, method, or place of delivery, or otherwise, than the supplier treats other persons to whom the supplier supplies the same or similar goods; or
d: the supplier causes or procures a person to act in relation to the supply of goods in the manner specified in paragraphs (a), (b), or (c), as the case may be. Trade Practices Act 1974 s 98 (Aust)
41: Preventing the supply of goods
For the purposes of section 38
a: the supply of goods shall be deemed to be prevented if—
i: the supply of those goods is refused except on terms that are disadvantageous to the person acquiring the goods; or
ii: the supply of those goods is on terms which are less favourable, whether in respect of time, method, or place of delivery, or otherwise, than the person who supplies the goods treats other persons to whom the same or similar goods are supplied:
b: the acquisition of goods shall be deemed to be prevented if—
i: the acquisition of those goods is refused except on terms that are disadvantageous to the person supplying the goods; or
ii: the acquisition of those goods is on terms which are less favourable, whether in respect of time, method, or place of delivery, or otherwise, than the person who acquires the goods treats other persons from whom the same or similar goods are acquired.
42: Special evidentiary provisions in respect of certain resale price maintenance practices
1: Where, in proceedings under this Act against a supplier for a contravention of section 37(3)﻿(d)
a: the supplier has acted in a manner referred to in section 40
b: during a period ending immediately before the supplier so acted, the supplier had been supplying goods of the kind withheld either to—
i: the person in respect of whom the contravention is alleged; or
ii: a person carrying on a similar business to that person; and
c: during a period of 6 months immediately before the supplier so acted, the supplier became aware of a matter or circumstance capable of constituting a reason referred to in section 37(3)﻿(d) or (e) it shall be presumed, in the absence of evidence to the contrary, that the supplier so acted on account of that matter.
2: Nothing in subsection (1) applies in respect of terms imposed by a supplier that are disadvantageous or treatment that is less favourable than the supplier accords other persons if the terms or treatment consists only of a requirement by the supplier as to the time at which, or the form in which, payment was to be made or as to the giving of security to secure payment. Trade Practices Act 1974 s 100(1), (2) (Aust) Section 42(1)﻿(c) amended 15 August 2017 section 32(2)﻿(d) Commerce (Cartels and Other Matters) Amendment Act 2017 Exceptions to Part 2 Heading inserted 14 August 2019 section 9 Commerce (Cartels and Other Matters) Amendment Act 2017
43: Statutory exceptions
1: Nothing in this Part applies in respect of any act, matter, or thing that is, or is of a kind, specifically authorised by any enactment or Order in Council made under any Act.
2: For the purposes of subsection (1), an enactment or Order in Council does not provide specific authority for an act, matter, or thing if it provides in general terms for that act, matter, or thing, notwithstanding that the act, matter, or thing requires or may be subject to approval or authorisation by a Minister of the Crown, statutory body or a person holding any particular office, or, in the case of a rule made or an act, matter, or thing done pursuant to any enactment, approval or authorisation by Order in Council.
3: No act, matter, or thing authorised under section 7(2)﻿(i) of the Sharebrokers Amendment Act 1981 or section 70(1)﻿(n) 1975 No 113 ss 22(7), 27(3)﻿(c); 1976 No 67 ss 15(1), 20(2)﻿(b)
44: Other exceptions
1: Nothing in this Part applies—
a: to the entering into of a contract, or arrangement, or arriving at an understanding between partners none of whom is a body corporate in so far as it contains a provision in relation to the terms of the partnership or the conduct of the partnership business or in relation to competition between the partnership and a party to the contract, arrangement, or understanding while that party is, or after that party ceases to be, a partner:
b:
c: to the entering into of a contract of service or a contract for the provision of services in so far as it contains a provision by which a person, not being a body corporate, agrees to accept restrictions as to the work, whether as an employee or otherwise, in which that person may engage during, or after the termination of, the contract:
d: to the entering into of a contract for, or the giving or requiring the giving of a covenant in connection with, the sale of a business or shares in the capital of a body corporate carrying on a business in so far as it contains a provision that is solely for the protection of the purchaser in respect of the goodwill of the business:
e: to the entering into of a contract, or arrangement, or arriving at an understanding in so far as it contains a provision obliging a person to comply with or apply—
i: a New Zealand Standard relating to dimension, design, quality, or performance; or
ii: a standard of dimension, design, quality, or performance prepared or approved by any association or body prescribed for the purpose of this paragraph by regulations made under this Act:
f: to the entering into of a contract, or arrangement, or arriving at an understanding in so far as it contains a provision that relates to the remuneration, conditions of employment, hours of work, or working conditions of employees:
g: to the entering into of a contract, or arrangement, or arriving at an understanding in so far as it contains a provision that relates exclusively to the export of goods from New Zealand or exclusively to the supply of services wholly outside New Zealand, if full and accurate particulars of the provision (not including particulars of prices for goods or services but including particulars of any method of fixing, controlling, or maintaining such prices) were furnished to the Commission before the expiration of 15 working days after the date on which the contract or arrangement was made or the understanding was arrived at, or 60 working days after the commencement of this Act, whichever is the later:
h: to any act done, otherwise than in trade, in concert by users of goods or services against the suppliers of those goods or services:
i: to any act done to give effect to a provision of a contract, arrangement, or understanding, or to a covenant referred to in paragraphs (a) to (g).
1A: Nothing in this Part (except sections 36 36A
a: the entering into of a contract or arrangement, or arriving at an understanding, or the giving or requiring the giving of a covenant, if the only parties, or (in the case of a covenant or proposed covenant) the only persons who are or would be respectively bound by, or entitled to the benefit of, the covenant or proposed covenant, are, or would be, interconnected bodies corporate:
b: any act done to give effect to a provision of a contract, arrangement, or understanding, or to a covenant referred to in paragraph (a).
2:
3: Trade Practices Act 1974 s 51(2), (2A) (Aust) Section 44(1)﻿(b) repealed 26 May 2001 section 10(1) Commerce Amendment Act 2001 Section 44(1)﻿(e) replaced 1 March 2016 section 45(1) Standards and Accreditation Act 2015 Section 44(1A) inserted 26 May 2001 section 10(2) Commerce Amendment Act 2001 Section 44(2) repealed 14 August 2019 section 34 Commerce (Cartels and Other Matters) Amendment Act 2017 Section 44(3) repealed 14 August 2019 section 34 Commerce (Cartels and Other Matters) Amendment Act 2017
44A: Exceptions in relation to international liner shipping services
1: Nothing in section 27(1)
2: Nothing in section 27(2)
3: Nothing in section 27(4)
4: Nothing in section 30(1)﻿(a)
5: Nothing in section 30(1)﻿(b)
6: The circumstances are that—
a: the person and all other parties to the contract, arrangement, or understanding that contains the provision are supplying an international liner shipping service in co-operation with each other; and
b: the co-operation improves the service supplied to owners or consignors of goods carried at sea; and
c: the provision relates to—
i: a specified activity carried out for the purposes of the co-operation; or
ii: an activity ancillary to a specified activity that is reasonably necessary for the purposes of the co-operation.
7: For the purposes of subsection (6)﻿(a), parties to the contract, arrangement, or understanding section 30B(a)
8: In this section,— cartel provision specified activity
a: the co-ordination of schedules and the determination of port calls:
b: the exchange, sale, hire, or lease (including the sublease) of space on a ship:
c: the pooling of ships to operate a network:
d: the sharing or exchanging of equipment such as containers:
e: capacity adjustments in response to fluctuations in supply and demand for international liner shipping services. Section 44A inserted 14 August 2019 section 10 Commerce (Cartels and Other Matters) Amendment Act 2017 Section 44A(4) amended 8 April 2021 section 7(1) Commerce (Criminalisation of Cartels) Amendment Act 2019 Section 44A(5) amended 8 April 2021 section 7(2) Commerce (Criminalisation of Cartels) Amendment Act 2019 Section 44A(8) cartel provision inserted 5 April 2023 section 18 Commerce Amendment Act 2022
44B: Further exception in relation to international liner shipping services (price fixing in relation to space on ship)
1: Nothing in section 30(1)﻿(a)
2: Nothing in section 30(1)﻿(b)
3: The circumstances are that—
a: the person and all other parties to the contract, arrangement, or understanding that contains the cartel provision are supplying an international liner shipping service in co-operation with each other; and
b: the co-operation improves the service supplied to owners or consignors of goods carried at sea; and
c: the provision relates to the exchange, sale, hire, or lease (including the sublease) of space on a ship between the person and 1 or more parties to the contract, arrangement, or understanding; and
d: the exchange, sale, hire, or lease (including the sublease) is carried out for the purposes of the co-operation.
4: For the purposes of subsection (3)﻿(a), parties to the contract, arrangement, or understanding section 30B(a)
5: In this section, cartel provision Section 44B inserted 14 August 2019 section 10 Commerce (Cartels and Other Matters) Amendment Act 2017 Section 44B(1) amended 8 April 2021 section 8(1) Commerce (Criminalisation of Cartels) Amendment Act 2019 Section 44B(2) amended 8 April 2021 section 8(2) Commerce (Criminalisation of Cartels) Amendment Act 2019 Section 44B(5) inserted 5 April 2023 section 19 Commerce Amendment Act 2022
45: Exceptions in relation to intellectual property rights
Section 45 repealed 5 April 2023 section 20 Commerce Amendment Act 2022
46: Saving in respect of business acquisitions
Nothing in this Part applies—
a: to any of the following to the extent that the contract, arrangement, understanding, or covenant provides for the acquisition or disposition of assets of a business or shares:
i: entering into a contract or an arrangement:
ii: arriving at an understanding:
iii: giving, or requiring the giving of, a covenant; or
b: to any act done to give effect to a provision of a contract, arrangement, understanding, or covenant Section 46 substituted 2 September 1996 Commerce Amendment Act 1996 Section 46(a) replaced 5 April 2023 section 21(1) Commerce Amendment Act 2022 Section 46(b) amended 5 April 2023 section 21(2) Commerce Amendment Act 2022
3: Business acquisitions
Part 3 substituted 1 January 1991 section 18 Commerce Amendment Act 1990
47: Certain acquisitions prohibited
1: A person must not acquire assets of a business or shares if the acquisition would have, or would be likely to have, the effect of substantially lessening competition in a market.
2: For the purposes of this section, a reference to a person
3: For the purposes of this section, a person is associated
4: A person is not able to exert a substantial degree of influence over the activities of another person for the purposes of subsection (3) by reason only of the fact that—
a: those persons are in competition in the same market; or
b: one of them supplies goods or services to the other. Trade Practices Act 1974 s 50 (Aust) Section 47 substituted 26 May 2001 section 11(1) Commerce Amendment Act 2001
47A: Declaration relating to acquisition by overseas person
1: The Commission may apply to the High Court for a declaration under this section if an overseas person acquires, whether directly or indirectly, a controlling interest in a New Zealand body corporate through the acquisition outside New Zealand of the assets of a business or shares.
2: The High Court may make a declaration that it is satisfied that—
a: the overseas person has acquired a controlling interest in a New Zealand body corporate through the acquisition outside New Zealand of the assets of a business or shares; and
b: the acquisition of that controlling interest has, or is likely to have, the effect of substantially lessening competition in a market in New Zealand.
3: A declaration may not be made in respect of an acquisition if—
a: the application for the declaration is made more than 12 months after the date of the acquisition; or
b: the Commission has given a clearance, or granted an authorisation, under Part 5 see section 69
4: Nothing in this section limits the Commission's functions or powers under any other provision of this Act.
5: In this section and in sections 47B to 47D controlling interest
a: controls the composition of the board of the body corporate; or
b: is in a position to exercise, or control the exercise of, more than 20% of the maximum number of votes that can be exercised at a meeting of the body corporate; or
c: holds more than 20% of the issued shares of the body corporate, other than shares that carry no right to participate beyond an entitlement to a specified amount in a distribution of either profits or capital; or
d: is entitled to receive more than 20% of every dividend paid on shares issued by the body corporate, other than shares that carry no right to participate beyond an entitlement to a specified amount in a distribution of either profits or capital; or
e: is the holding company (as defined in section 5(2)
f: holds assets in circumstances where the holding of those assets results in the overseas person having effective control of the body corporate New Zealand body corporate overseas person Section 47A inserted 15 August 2017 section 11 Commerce (Cartels and Other Matters) Amendment Act 2017
47B: Orders against New Zealand bodies corporate following declaration under section 47A
1: The Commission may apply to the High Court for an order under this section in respect of a New Zealand body corporate—
a: at the same time as the Commission applies for a declaration under section 47A
b: at any time while that application is pending or after the declaration has been made.
2: If the High Court makes a declaration under section 47A
a: cease carrying on business in New Zealand, in the market to which the declaration relates, no later than 6 months after the date of the declaration or any longer period specified by the court; or
b: dispose of shares or other assets specified by the court; or
c: take any other action (including disposing of shares or other assets) that the court considers, in all the circumstances, is consistent with the purpose of this Act.
3: Contravention of an order made under this section is a contravention of this section. Section 47B inserted 15 August 2017 section 11 Commerce (Cartels and Other Matters) Amendment Act 2017
47C: Application by Commission for declaration or order
1: An application for a declaration under section 47A section 47B
2: On making an application under section 47A
3: On making an application under section 47B Section 47C inserted 15 August 2017 section 11 Commerce (Cartels and Other Matters) Amendment Act 2017
47D: Revocation and variation of declarations and orders
1: The Commission, or the overseas person or New Zealand body corporate to which a declaration made under section 47A
2: The Commission, or the overseas person or any New Zealand body corporate to which an order under section 47B
3: The High Court may, if it is satisfied that there has been a material change of circumstances, do either or both of the following:
a: revoke a declaration:
b: revoke or vary any order. Section 47D inserted 15 August 2017 section 11 Commerce (Cartels and Other Matters) Amendment Act 2017
48: Bare transfer of market dominance excluded
Section 48 repealed 26 May 2001 section 11(3) Commerce Amendment Act 2001
49: Application to building societies
Section 49 repealed 1 January 1991 section 18 Commerce Amendment Act 1990
50: Certain merger or takeover proposals require clearance or authorisation
Section 50 repealed 1 January 1991 section 18 Commerce Amendment Act 1990
51: Contracts subject to condition of clearance or authorisation
Section 51 repealed 1 January 1991 section 18 Commerce Amendment Act 1990
3A: Competition studies
Part 3A inserted 26 October 2018 section 4 Commerce Amendment Act 2018
48: Interpretation
In this Part, unless the context otherwise requires,— competition report section 51B competition study organisation
a: an organisation named in Part 2 of Schedule 1
b: an organisation named in Schedule 1
c: the Auditor-General. Section 48 inserted 26 October 2018 section 4 Commerce Amendment Act 2018 Section 48 department repealed 5 May 2022 section 22 Commerce Amendment Act 2022
49: Functions of Commission under this Part
The functions of the Commission under this Act include carrying out competition studies, and preparing competition reports, under this Part. Section 49 inserted 26 October 2018 section 4 Commerce Amendment Act 2018
50: Commission may carry out competition study
1: The Commission may carry out a competition study if the Commission considers it to be in the public interest to do so.
2: Before carrying out a competition study, the Commission must, by notice in the Gazette
a: prescribe the terms of reference for the study; and
b: specify the date by which the Commission will make the final competition report for the study publicly available.
3: A copy of the notice must be made publicly available.
4: The Commission may amend the notice in the manner set out in subsections (1) to (3).
5: The Commission may revoke the notice by further notice in the Gazette Section 50 inserted 26 October 2018 section 4 Commerce Amendment Act 2018
51: Minister may require Commission to carry out competition study
1: The Minister may, by notice in the Gazette
2: The notice must—
a: prescribe the terms of reference for the study; and
b: specify the date by which the Commission must make the final report for the study publicly available.
3: A copy of the notice must be made publicly available.
4: Before issuing the notice, the Minister must consult the Commission on a draft of the notice.
5: The Minister may amend the notice in the manner set out in subsections (1) to (4).
6: The Minister, having first consulted with the Commission, may revoke the notice by further notice in the Gazette Section 51 inserted 26 October 2018 section 4 Commerce Amendment Act 2018
51A: Competition study terms of reference
1: The terms of reference for a competition study must—
a: specify the goods or services, or both, to which the study relates; and
b: describe the scope of the study.
2: If the study is required by the Minister, the terms of reference may require the Commission to consult any of the following as part of the study:
a: public service agencies
b: organisations:
c: persons:
d: classes of persons.
3: If the Commission is carrying out the study on its own initiative, the terms of reference may name any of the following that it intends to consult as part of the study:
a: public service agencies
b: organisations:
c: persons:
d: classes of persons.
4: The Commission—
a: must carry out the competition study in accordance with the terms of reference; and
b: may exercise its discretion in relation to any ancillary matters that are related to, but not explicitly covered by, the terms of reference. Section 51A inserted 26 October 2018 section 4 Commerce Amendment Act 2018 Section 51A(2)﻿(a) amended 5 May 2022 section 23 Commerce Amendment Act 2022 Section 51A(3)﻿(a) amended 5 May 2022 section 23 Commerce Amendment Act 2022
51B: Preparation of competition report
1: The Commission must prepare a competition report that records its findings from the competition study.
2: The Commission may make recommendations in the report but it is not required to do so.
3: The recommendations may, without limitation, include 1 or more of the following:
a: changes to legislation or other instruments:
b: changes to the policies or practices of central or local government:
c: changes to the policies or practices of a person or an organisation responsible for the oversight or regulation of a specified industry:
d: changes to the amount or type of information made available by a person or an organisation in relation to a specified industry:
e: that a person or an organisation research or monitor a specified matter:
f: that persons within a specified industry change their behaviour. Section 51B inserted 26 October 2018 section 4 Commerce Amendment Act 2018
51C: Consultation on draft competition report
1: Before a competition report is finalised, the Commission must—
a: make a draft report publicly available; and
b: allow a reasonable time for comments on the draft.
2: In preparing its final report, the Commission must have regard to any comments received on the draft report within the time allowed. Section 51C inserted 26 October 2018 section 4 Commerce Amendment Act 2018
51D: Publication and status of competition report
1: The Commission must—
a: provide the final competition report to the Minister; and
b: at least 5 working days later, make the final competition report publicly available.
2: To avoid doubt, a competition report is not a determination of the Commission. Section 51D inserted 26 October 2018 section 4 Commerce Amendment Act 2018
51E: Minister must respond to competition report
The Minister must respond to the final competition report within a reasonable time after the report is made publicly available. Section 51E inserted 26 October 2018 section 4 Commerce Amendment Act 2018
4: Regulated goods or services
Part 4 substituted 14 October 2008 section 4 Commerce Amendment Act 2008
1: Preliminary provisions
Subpart 1 heading inserted 14 October 2008 section 4 Commerce Amendment Act 2008
52: Overview of Part
This Part provides for the regulation of the price and quality of goods or services in markets where there is little or no competition and little or no likelihood of a substantial increase in competition. Section 52 substituted 14 October 2008 section 4 Commerce Amendment Act 2008
52A: Purpose of Part
1: The purpose of this Part is to promote the long-term benefit of consumers in markets referred to in section 52
a: have incentives to innovate and to invest, including in replacement, upgraded, and new assets; and
b: have incentives to improve efficiency and provide services at a quality that reflects consumer demands; and
c: share with consumers the benefits of efficiency gains in the supply of the regulated goods or services, including through lower prices; and
d: are limited in their ability to extract excessive profits.
2: In this Part, the purpose set out in subsection (1) applies in place of the purpose set out in section 1A Section 52A inserted 14 October 2008 section 4 Commerce Amendment Act 2008
52B: Outline of Part
1: This Part provides—
a: generic provisions for imposing any 1 or more of 3 types of regulation on goods or services ( see subpart 2
b: for the Commission to determine input methodologies applying to the supply of goods or services regulated under this Part ( see subpart 3
2: The different types of regulation under this Part are as follows:
a: information disclosure regulation, under which regulated suppliers are required to disclose information in accordance with requirements determined by the Commission ( see subpart 4
b: negotiate/arbitrate regulation, under which regulated suppliers are required to negotiate with other parties on prices and quality, and, if negotiation is unsuccessful, to enter into binding arbitration ( see subpart 5
c: price-quality regulation, of which there are 2 types:
i: default/customised price-quality regulation, under which default price-quality paths are set for regulated suppliers, but individual suppliers may seek a customised price-quality path instead ( see subpart 6
ii: individual price-quality regulation, under which the Commission sets a price-quality path for an individual regulated supplier ( see subpart 7
3: Regulation of the following services is dealt with by subparts 9 to 11
a: electricity lines services ( subpart 9
b: gas pipeline services ( subpart 10
c: services at certain airports ( subpart 11
4: This section is only a guide. Section 52B inserted 14 October 2008 section 4 Commerce Amendment Act 2008
52C: Interpretation
In this Part, unless the context otherwise requires,— claw-back section 52D consumer sections 54C 54D 55A information disclosure requirement section 52P input methodology section 52T as referred to in section 52W inquiry
a: for the purposes of subpart 11 sections 56F to 56H
b: for all other purposes, an inquiry by the Commission that is carried out in accordance with sections 52H to 52J price
a: means any 1 or more of individual prices, aggregate prices, or revenues (whether in the form of specific numbers, or in the form of formulas by which specific numbers are derived); and
b: includes any related terms of payment pricing methodologies publicly disclose section 52P regulated regulated goods or services
a: by Order in Council made under section 52N
b: by any of subparts 9 to 11 regulated supplier section 52P section 52P determination section 52P Section 52C inserted 14 October 2008 section 4 Commerce Amendment Act 2008 Section 52C input methodology amended 28 October 2021 section 3 Secondary Legislation Act 2021 Section 52C inquiry replaced 26 October 2018 section 5(1) Commerce Amendment Act 2018 Section 52C publicly available repealed 26 October 2018 section 5(2) Commerce Amendment Act 2018
52D: Meaning and application of claw-back
1: A reference to the Commission applying claw-back
a: requiring a supplier to lower its prices on a temporary basis in order to compensate consumers for some or all of any over-recovery that occurred under the prices previously charged by the supplier:
b: allowing a supplier to recover some or all of any shortfall in its revenues that occurred under the prices previously charged by the supplier.
2: If the Commission requires a supplier to lower its prices, it must also require that the lowering of prices must be spread over time in order to minimise undue financial hardship to the supplier.
3: If the Commission allows a supplier to recover any shortfall, it must require that any recovery must be spread over time in order to minimise price shocks to consumers. Section 52D inserted 14 October 2008 section 4 Commerce Amendment Act 2008
2: Regulating particular goods or services
Subpart 2 inserted 14 October 2008 section 4 Commerce Amendment Act 2008
52E: Overview of process if regulation imposed on goods or services
1: The process for imposing regulation under this subpart on particular goods or services involves the following steps:
a: the Commission holds an inquiry into whether, and if so how, to regulate the goods or services, and then makes a recommendation to the Minister under section 52K
b: the Minister considers the Commission’s recommendation and decides whether or not to recommend to the Governor-General that regulation be imposed and, if so, which type or types of regulation:
c: if the Minister decides to recommend regulation, an Order in Council may be made under section 52N
d: for each type of regulated goods or services, the Commission makes a section 52P
2: This section is only a guide. Section 52E inserted 14 October 2008 section 4 Commerce Amendment Act 2008
52F: Effect of goods or services being subject to regulation
1: If goods or services are subject to regulation of a particular type, every regulated supplier of those goods or services must comply with—
a: the requirements of this Part relating to that type of regulation; and
b: every section 52P
2: Sections 86 to 87C section 52P
3: The Commission is entitled to exercise any of its powers under this Act for the purpose of monitoring compliance by regulated suppliers with regulation under this Part. Section 52F inserted 14 October 2008 section 4 Commerce Amendment Act 2008
52G: When goods or services may be regulated
1: Goods or services may be regulated under this Part only if—
a: the goods or services are supplied in a market where there is both—
i: little or no competition; and
ii: little or no likelihood of a substantial increase in competition; and
b: there is scope for the exercise of substantial market power in relation to the goods or services, taking into account the effectiveness of existing regulation or arrangements (including ownership arrangements); and
c: the benefits of regulating the goods or services in meeting the purpose of this Part materially exceed the costs of regulation.
2: In any consideration of this test, the part of the test in subsection (1)﻿(c) need not be considered unless the parts of the test in subsection (1)﻿(a) and (b) are satisfied. Section 52G inserted 14 October 2008 section 4 Commerce Amendment Act 2008 Commission inquiry Heading inserted 14 October 2008 section 4 Commerce Amendment Act 2008
52H: How inquiry triggered
1: The Commission—
a: must hold an inquiry if required to do so by the Minister; and
b: may hold an inquiry on its own initiative.
2: Any requirement by the Minister must—
a: be in writing; and
b: specify the date by which the Commission must make a recommendation under section 52K Section 52H inserted 14 October 2008 section 4 Commerce Amendment Act 2008
52I: Commission inquiry into particular goods or services
1: In conducting an inquiry into particular goods or services, the Commission must consider—
a: whether the test in section 52G
b: if that test is satisfied, whether the goods or services should be regulated; and
c: if so, how the goods or services should be regulated, including—
i: how the goods or services should be defined; and
ii: which type or types of regulation (as set out in section 52B(2)
iii: how that type or those types of regulation should apply to suppliers of the goods or services.
2: As part of an inquiry into particular goods or services, the Commission—
a: must determine (and then apply) input methodologies for the supply of the goods or services, in accordance with subpart 3
b: must, when carrying out the analysis required by section 52G(1)﻿(c)
3: As part of that qualitative analysis, the Commission must, as far as practicable,—
a: quantify material effects on allocative, productive, and dynamic efficiency; and
b: quantify material distributional and welfare consequences on suppliers and consumers; and
c: assess the direct and indirect costs and risks of any type of regulation considered, including administrative and compliance costs, transaction costs, and spill-over effects.
4: As part of an inquiry, the Commission must, when considering which type of regulation might be imposed,—
a: assess the benefits of imposing different types of regulation in meeting the purpose of this Part against the costs of imposing those types of regulation; and
b: consider what would be the most cost-effective type or types of regulation in the circumstances.
5: During an inquiry, the Commission may have regard to any other matters it considers necessary or desirable for the purpose of the inquiry. Section 52I inserted 14 October 2008 section 4 Commerce Amendment Act 2008
52J: Process of inquiry
1: At the start of an inquiry, the Commission must publish in the Gazette
a: in the case of an inquiry required by the Minister, the Minister’s requirements; and
b: in the case of an inquiry on the initiative of the Commission, the terms of reference for the inquiry.
2: The notice must set out indicative time frames and key steps.
3: During the course of an inquiry, the Commission—
a: may publish, in whatever way it considers appropriate, further notices, consultation documents, or papers; and
b: must give interested persons a reasonable opportunity to give their views; and
c: may hold 1 or more conferences; and
d: must have regard to any views received from interested persons within any time frames set.
4: Before the end of an inquiry, the Commission must publish a proposed recommendation for consultation. Section 52J inserted 14 October 2008 section 4 Commerce Amendment Act 2008
52K: Commission's recommendation following inquiry
1: At the end of an inquiry, having considered the matters in section 52I
2: If the recommendation is that particular goods or services should be regulated, the recommendation must state the following:
a: how the goods or services should be specified:
b: which type or types of regulation should apply to the goods or services:
c: what input methodologies apply:
d: if information disclosure regulation is recommended, the material provisions of the information disclosure requirements:
e: if negotiate/arbitrate regulation is recommended, the material provisions of the negotiation process and arbitration process:
f: if default/customised price-quality regulation is recommended, the default price path and quality standards:
g: if individual price-quality regulation is recommended, the material provisions to apply.
3: The Minister must publish the Commission’s recommendation, and may do so in whatever way he or she considers appropriate.
4: To avoid doubt, a recommendation by the Commission is not a determination of the Commission. Section 52K inserted 14 October 2008 section 4 Commerce Amendment Act 2008 Order in Council imposing regulation Heading inserted 14 October 2008 section 4 Commerce Amendment Act 2008
52L: Minister's consideration
1: The Minister must consider any recommendation of the Commission made under section 52K
2: As part of that consideration, the Minister—
a: must consult with the relevant sector Minister (such as the Minister of Energy or the Minister of Transport); and
b: may request further information or advice from the Commission.
3: If the Minister proposes, contrary to the recommendation of the Commission, that the goods or services should be regulated, or that they should be subject to a type of regulation not recommended by the Commission, the Minister must ask the Commission for written advice on what the material provisions of the relevant section 52P
4: Any request by the Minister under subsection (3), and the Commission's advice given following that request, must be made publicly available.
5: If the Commission receives a request under subsection (3), it may, at its discretion,—
a: consult with interested parties; or
b: reopen its inquiry, in which case section 52J Section 52L inserted 14 October 2008 section 4 Commerce Amendment Act 2008
52M: Minister's decision and recommendation
1: Having considered the Commission’s recommendation in accordance with section 52L section 52L(3)
a: decide whether, in the opinion of the Minister, the goods or services should be regulated; and
b: if the goods or services are to be regulated, decide which type or types of regulation are to apply; and
c: make a recommendation to that effect, if the goods or services are to be regulated.
2: The Minister's decision may be the same as, or different from, the Commission’s recommendation under section 52K
3: If the Minister's decision is different from the Commission's recommendation, the Minister must set out the reasons for the decision and make the decision, with the reasons, publicly available. Section 52M inserted 14 October 2008 section 4 Commerce Amendment Act 2008
52N: Order in Council imposing regulation
1: The Governor-General may, on the recommendation of the Minister made under section 52M
2: The order must—
a: declare that the goods or services are regulated; and
b: state which type or types of regulation the goods or services are subject to.
3: The order may identify the goods or services it relates to by reference to goods or (with all necessary modifications) services—
a: supplied in or for delivery within specified regions, areas, or localities in New Zealand; or
b: supplied in different quantities, qualities, grades, or classes; or
c: supplied by or to or for the use of different persons or classes of persons; or
d: any or all of paragraphs (a) to (c).
4: Subsection (3) applies so that any part or element of goods or services can be dealt with separately.
5: The order must include an expiry date, which must be a date not later than 20 years after its date of commencement.
6: An order under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 52N inserted 14 October 2008 section 4 Commerce Amendment Act 2008 Section 52N(6) replaced 28 October 2021 section 3 Secondary Legislation Act 2021
52O: Revocation or amendment of Order in Council
1: An Order in Council made under section 52N
2: In subsection (1), significantly amended
a: alters the type or types of regulation applying to the goods or services; or
b: materially alters the goods or services to which the regulation applies, so that either—
i: the goods or services, or any of them, are no longer regulated; or
ii: goods or services that were not identified in the original order are now subject to regulation.
3: An Order in Council made under section 52N Section 52O inserted 14 October 2008 section 4 Commerce Amendment Act 2008 Commission determination about how regulation applies Heading inserted 14 October 2008 section 4 Commerce Amendment Act 2008
52P: Determinations by Commission under this section
1: The Commission must make determinations under this section specifying how the relevant forms of regulation apply to suppliers of regulated goods or services.
2: Determinations must be made,—
a: in the case of goods or services declared to be regulated by an Order in Council under section 52N
b: in the case of goods or services declared to be regulated under subparts 9 10 sections 54I 54J 54K and 55E
c: in the case of regulation being imposed on specified airport services under section 56K section 56L
3: Determinations must—
a: set out, for each type of regulation to which the goods or services are subject, the requirements that apply to each regulated supplier; and
b: set out any time frames (including the regulatory periods) that must be met or that apply; and
c: specify the input methodologies that apply; and
d: be consistent with this Part.
4: It is not necessary for a single determination to address all matters relating to particular regulated goods or services, or to a supplier of regulated goods or services, and different parts of any determination may come into effect at different times.
5: If a determination under this section is made following an inquiry and a recommendation under section 52K section 52L(3)
6: A determination under this section may require a supplier to comply with the requirements set out in any other determination that has been made under this section in respect of regulated goods or services of the same type.
7: The Commission must, as soon as practicable after making a determination under this section, give to each supplier to whom the determination relates notice of the determination and where it is available.
8: Each supplier to whom the determination relates must comply with the requirements imposed by the determination.
9: A determination under this section and an amendment to a determination are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication The maker must: LA19 ss 73 74(1)﻿(a) cl 14 •	publish a summary of it in the Gazette •	make it publicly available (see definition in section 2 •	comply with subsection (7) Presentation It is not required to be presented to the House of Representatives because a transitional exemption applies under Schedule 1 LA19 s 114 cl 32(1)﻿(a) Disallowance It is not disallowable because an exemption applies under Schedule 3 LA19 s 115(d) Sch 3 This note is not part of the Act. Section 52P inserted 14 October 2008 section 4 Commerce Amendment Act 2008 Section 52P(2)﻿(b) amended 26 October 2018 section 6(1)﻿(a) Commerce Amendment Act 2018 Section 52P(2)﻿(b) amended 26 October 2018 section 6(1)﻿(b) Commerce Amendment Act 2018 Section 52P(2)﻿(c) inserted 26 October 2018 section 6(2) Commerce Amendment Act 2018 Section 52P(7) replaced 28 October 2021 section 3 Secondary Legislation Act 2021 Section 52P(9) replaced 28 October 2021 section 3 Secondary Legislation Act 2021
52Q: Amendment of section 52P determination
1: A section 52P
2: However, the Commission is not required to conduct an inquiry before amending a determination.
3: As soon as practicable after making an amendment, the Commission must give to each supplier to whom the determination relates notice of the amendment and where it is available.
4: An amendment relating to a customised price-quality path that takes effect under section 53ZA(3) Legislation Act 2019
5: Section 52Q inserted 14 October 2008 section 4 Commerce Amendment Act 2008 Section 52Q(3) replaced 28 October 2021 section 3 Secondary Legislation Act 2021 Section 52Q(4) replaced 28 October 2021 section 3 Secondary Legislation Act 2021 Section 52Q(5) repealed 28 October 2021 section 3 Secondary Legislation Act 2021
3: Input methodologies
Subpart 3 heading inserted 14 October 2008 section 4 Commerce Amendment Act 2008
52R: Purpose of input methodologies
The purpose of input methodologies is to promote certainty for suppliers and consumers in relation to the rules, requirements, and processes applying to the regulation, or proposed regulation, of goods or services under this Part. Section 52R inserted 14 October 2008 section 4 Commerce Amendment Act 2008
52S: How published input methodologies apply
Every relevant input methodology relating to the supply of particular goods or services that is published as referred to in section 52W
a: if the goods or services are regulated, by every regulated supplier of the goods or services in accordance with the relevant section 52P
b: in all cases, by every person entitled or required under this Act to recommend, decide, or determine—
i: whether or how regulation under this Part should apply to the goods or services; or
ii: the prices or quality standards applying to the goods or services. Section 52S inserted 14 October 2008 section 4 Commerce Amendment Act 2008 Section 52S amended 28 October 2021 section 3 Secondary Legislation Act 2021
52T: Matters covered by input methodologies
1: The input methodologies relating to particular goods or services must include, to the extent applicable to the type of regulation under consideration,—
a: methodologies for evaluating or determining the following matters in respect of the supply of the goods or services:
i: cost of capital:
ii: valuation of assets, including depreciation, and treatment of revaluations:
iii: allocation of common costs, including between activities, businesses, consumer classes, and geographic areas:
iv: treatment of taxation; and
b: pricing methodologies , except where another industry regulator (such as the Electricity Authority) has the power to set pricing methodologies in relation to particular goods or services
c: regulatory processes and rules, such as—
i: the specification and definition of prices, including identifying any costs that can be passed through to prices (which may not include the legal costs of any appeals against input methodology determinations under this Part or of any appeals under section 91 section 97
ii: identifying circumstances in which price-quality paths may be reconsidered within a regulatory period; and
d: matters relating to proposals by a regulated supplier for a customised price-quality path, including—
i: requirements that must be met by the regulated supplier, including the scope and specificity of information required, the extent of independent verification and audit, and the extent of consultation and agreement with consumers; and
ii: the criteria that the Commission will use to evaluate any proposal.
2: Every input methodology must, as far as is reasonably practicable,—
a: set out the matters listed in subsection (1) in sufficient detail so that each affected supplier is reasonably able to estimate the material effects of the methodology on the supplier; and
b: set out how the Commission intends to apply the input methodology to particular types of goods or services; and
c: be consistent with the other input methodologies that relate to the same type of goods or services.
3: Any methodologies referred to in subsection (1)﻿(a)﻿(iii) must not unduly deter investment by a supplier of regulated goods or services in the provision of other goods or services. Section 52T inserted 14 October 2008 section 4 Commerce Amendment Act 2008 Section 52T(1)﻿(b) amended 1 November 2010 section 147 Electricity Industry Act 2010
52U: When input methodologies must be determined
1:
2:
3: The Commission must determine input methodologies for any goods or services that are the subject of an inquiry as soon as practicable after the Commission is satisfied that the parts of the test for the regulation of goods or services set out in paragraphs (a) and (b) of section 52G(1) Section 52U inserted 14 October 2008 section 4 Commerce Amendment Act 2008 Section 52U(1) repealed 26 October 2018 section 7 Commerce Amendment Act 2018 Section 52U(2) repealed 26 October 2018 section 7 Commerce Amendment Act 2018
52V: Commission process for determining input methodologies
1: When the Commission begins work on an input methodology, it must publish a notice of intention to do so that—
a: outlines the process that will be followed; and
b: sets out the proposed time frames.
2: During the course of its work on an input methodology, the Commission—
a: must publish a draft methodology; and
b: must give interested persons a reasonable opportunity to give their views on that draft methodology; and
c: may hold 1 or more conferences; and
d: must have regard to any views received from interested persons within any time frames set.
3: Despite subsections (1) and (2), any work done or action taken (including any consultation) by the Commission on input methodologies before the commencement of this section may be treated by the Commission and any person consulted as work done or action taken under this section.
4: The Commission must consult with interested parties before deciding to treat earlier work or action as work or action done under this section. Section 52V inserted 14 October 2008 section 4 Commerce Amendment Act 2008
52W: Status of input methodologies, amendments, and revocations
1: The following are secondary legislation ( see Part 3
a: an input methodology:
b: an amendment to an input methodology:
c: the revocation by the Commission of an input methodology.
2: The secondary legislation must be published under the Legislation Act 2019
a: if it is made by the Commission, within 10 working days after the Commission makes its determination; or
b: if it is made by the High Court on appeal, within 10 working days after the Commission receives a copy of the High Court’s decision.
3: If an input methodology or amendment is made by the High Court on appeal, the Legislation Act 2019
4: When a methodology or an amendment (but not a revocation) is published, the Commission must publish its reasons for determining the methodology, or for amending it, on an Internet site maintained by or on behalf of the Commission. The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation referred to in subsection (1). Legislation Act 2019 requirements for secondary legislation referred to in subsection (1) Publication The maker must: LA19 ss 73 74(1)﻿(a) cl 14 •	notify it in the Gazette •	make it publicly available (see definition in section 2 •	comply with subsections (2) and (4) Presentation It is not required to be presented to the House of Representatives because a transitional exemption applies under Schedule 1 LA19 s 114 cl 32(1)﻿(a) Disallowance It is not disallowable because an exemption applies under Schedule 3 LA19 s 115(d) Sch 3 This note is not part of the Act. Section 52W replaced 28 October 2021 section 3 Secondary Legislation Act 2021
52X: Amendment of input methodologies
1: If the Commission proposes to amend an input methodology by making a material change, section 52V
2: See also section 52W Section 52X inserted 14 October 2008 section 4 Commerce Amendment Act 2008 Section 52X(2) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
52Y: Review and date of publication of input methodologies
1: The Commission must review each input methodology no later than 7 years after its date of publication and, after that, at intervals of no more than 7 years.
2: The date of publication Legislation Act 2019
3: Section 52V
4: See also section 52W Section 52Y inserted 14 October 2008 section 4 Commerce Amendment Act 2008 Section 52Y(2) replaced 28 October 2021 section 3 Secondary Legislation Act 2021 Section 52Y(4) replaced 28 October 2021 section 3 Secondary Legislation Act 2021 Appeals against input methodology determinations Heading inserted 14 October 2008 section 4 Commerce Amendment Act 2008
52Z: Appeals against input methodology determinations
1: Any person who gave views on an input methodology determination to the Commission as part of the process under section 52V
2: In this section and section 52ZA input methodology determination
a: the initial determination of an input methodology:
b: any determination by the Commission that amends the input methodology:
c: any determination by the Commission of an input methodology following a review of the input methodology.
3: In determining an appeal against an input methodology determination, the court may do any of the following:
a: decline the appeal and confirm the input methodology set out in the determination:
b: allow the appeal by—
i: amending the input methodology; or
ii: revoking the input methodology and substituting a new one; or
iii: referring the input methodology determination back to the Commission with directions as to the particular matters that require amendment.
4: The court may only exercise its powers under subsection (3)﻿(b) if it is satisfied that the amended or substituted input methodology is (or will be, in the case of subsection (3)﻿(b)﻿(iii)) materially better in meeting the purpose of this Part, the purpose in section 52R
5: If the court allows an appeal, the Commission may seek clarification from the court on any matter for the purpose of implementing the court's decision.
6: There is a right of appeal under section 97 Section 52Z inserted 14 October 2008 section 4 Commerce Amendment Act 2008
52ZA: Process for appeals
1: Any appeal under section 52Z
2: The appeal must be by way of rehearing and must be conducted solely on the basis of the documentary information and views that were before the Commission when it made its determination, and no party may introduce any new material during the appeal.
3: The High Court must sit with 2 lay members (unless the court considers that only 1 is required).
4: Each of the lay members must have relevant experience and be appointed from the pool of people appointed under section 77
5: Section 77 Section 52ZA inserted 14 October 2008 section 4 Commerce Amendment Act 2008
53: Input methodology applies pending outcome of appeal
1: The High Court may not stay the application of section 52S as referred to in section 52W
2: Section 52S as referred to in section 52W Section 53 substituted 14 October 2008 section 4 Commerce Amendment Act 2008 Section 53(1) amended 28 October 2021 section 3 Secondary Legislation Act 2021 Section 53(2) amended 28 October 2021 section 3 Secondary Legislation Act 2021
4: Information disclosure regulation
Subpart 4 inserted 14 October 2008 section 4 Commerce Amendment Act 2008
53A: Purpose of information disclosure regulation
The purpose of information disclosure regulation is to ensure that sufficient information is readily available to interested persons to assess whether the purpose of this Part is being met. Section 53A inserted 14 October 2008 section 4 Commerce Amendment Act 2008
53B: Effect of being subject to information disclosure regulation
1: Every supplier of goods or services that are subject to information disclosure regulation must—
a: publicly disclose information in accordance with the information disclosure requirements set out in the relevant section 52P
b: supply to the Commission a copy of all information disclosed in accordance with the section 52P
c: supply to the Commission, in accordance with a written notice by the Commission, any further statements, reports, agreements, particulars, or other information required for the purpose of monitoring the supplier’s compliance with the section 52P
2: If a supplier of goods or services is subject to information disclosure regulation, the Commission—
a: may monitor and analyse all information disclosed in accordance with the information disclosure requirements; and
b: must, as soon as practicable after any information is publicly disclosed, publish a summary and analysis of that information for the purpose of promoting greater understanding of the performance of individual regulated suppliers, their relative performance, and the changes in performance over time.
3: To avoid doubt, the Commission may, as part of a summary and analysis, include an analysis of how effective the information disclosure requirements imposed on the goods or services are in promoting the purpose of this Part. Section 53B inserted 14 October 2008 section 4 Commerce Amendment Act 2008 Section 53B(3) inserted 26 October 2018 section 8 Commerce Amendment Act 2018
53C: Section 52P determination to set out information disclosure requirements
1: A section 52P
a: specify the goods or services to which it applies; and
b: specify the suppliers to which it applies; and
c: specify the information to be disclosed; and
d: specify the manner in which the information is to be disclosed; and
e: specify the form of disclosure; and
f: specify when, and for how long, information must be disclosed; and
g: specify the input methodologies that apply; and
h: specify any other methodologies that are required in the preparation or compilation of the information.
2: Information required to be disclosed may include (without limitation) any or all of the following:
a: financial statements (including projected financial statements):
b: asset values and valuation reports:
c: prices, terms and conditions relating to prices, and pricing methodologies:
d: contracts:
e: transactions with related parties:
f: financial and non-financial performance measures:
g: plans and forecasts, including (without limitation) plans and forecasts about demand, investments, prices, revenues, quality and service levels, capacity and spare capacity, and efficiency improvements:
h: asset management plans:
i: quality performance measures and statistics:
j: assumptions, policies, and methodologies used or applied in these or other areas:
k: consolidated information that includes information about unregulated goods or services, in which case section 53D
3: The section 52P
a: require disclosed information, or information from which disclosed information is derived (in whole or in part), to be verified by statutory declaration:
b: require independent audits of disclosed information:
c: require the retention of data on which disclosed information is based, and associated documentation:
d: exempt any person or class of persons, or provide for exemptions, from any requirements of the determination, and provide for the revocation of exemptions:
e: provide for transitional provisions:
f: impose any other requirements that the Commission considers necessary or desirable to promote the purpose of information disclosure regulation.
4: The section 52P Part 4A section 54B
5: If a section 52P
a: an instrument granting or revoking an exemption is secondary legislation ( see Part 3
b: the determination must contain a statement to that effect. The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation referred to in subsection (5)﻿(a). Legislation Act 2019 requirements for secondary legislation referred to in subsection (5)﻿(a) Publication If the section 52P LA19 ss 69 73 74 If the section 52P Legislation (Publication) Regulations 2021 Presentation The Minister must present it to the House of Representatives, unless it is excluded by section 114(2) clause 32 LA19 s 114 cl 32 Disallowance It may be disallowed by the House of Representatives, unless it is excluded by section 115 LA19 ss 115 116 This note is not part of the Act. Section 53C inserted 14 October 2008 section 4 Commerce Amendment Act 2008 Section 53C(5) inserted 28 October 2021 regulation 42 Legislation Act (Amendments to Legislation) Regulations 2021
53D: Consolidated information may also be required
1: The purpose of this section is to enable the Commission to monitor compliance with information disclosure regulation applying to regulated goods or services.
2: A section 52P
3: If a regulated supplier provides goods or services that are not subject to regulation under this Part ( unregulated goods or services
a: consolidated financial statements, and any other information referred to in section 53C
b: consolidated financial statements, and any other information referred to in section 53C
c: reconciliation between information provided under paragraphs (a) and (b) with information disclosed in accordance with information disclosure requirements applying to the regulated goods or services.
4: If a supplier supplies more than 1 kind of regulated goods or services, the Commission may require the supplier to provide consolidated information and performance measures relating to all, or any combination of, the regulated goods or services. Section 53D inserted 14 October 2008 section 4 Commerce Amendment Act 2008
53E: Charge for providing copies to public
1: A person who is required, by a section 52P
2: The charge must be no more than is reasonably required to recover the costs of providing those copies. Section 53E inserted 14 October 2008 section 4 Commerce Amendment Act 2008
53F: Limited exception to obligation to apply input methodologies
1: Despite section 52S
a: pricing methodologies:
b: methodologies for evaluating or determining the cost of capital.
2: However, to avoid doubt, subsection (1) does not affect anything else in this subpart, and in particular does not affect—
a: section 53B(2)
b: section 53C(2) Section 53F inserted 14 October 2008 section 4 Commerce Amendment Act 2008
5: Negotiate/arbitrate regulation
Subpart 5 inserted 14 October 2008 section 4 Commerce Amendment Act 2008
53G: Purpose of negotiate/arbitrate regulation
The purpose of negotiate/arbitrate regulation is to encourage a supplier and its customers to reach agreement, through negotiation, on the supplier's prices and quality standards during a specified regulatory period, and to provide for binding arbitration if negotiation is unsuccessful. Section 53G inserted 14 October 2008 section 4 Commerce Amendment Act 2008
53H: Overview of negotiate/arbitrate regulation
1: If a regulated supplier is subject to negotiate/arbitrate regulation,—
a: the supplier must enter into negotiations with parties identified by the Commission in order to reach agreement on the matters identified by the Commission (being the prices and quality standards associated with regulated goods or services) that will apply for the regulatory period specified by the Commission; and
b: if the negotiations fail to reach a settlement of all the matters within the time frames set by the Commission, the parties must enter into arbitration to resolve the outstanding matters; and
c: the terms of the arbitration are set by the Commission, and the arbitral award is binding on the parties unless or until they agree to vary it.
2: This section is only a guide. Section 53H inserted 14 October 2008 section 4 Commerce Amendment Act 2008
53I: Section 52P determination to set out requirements for application of negotiate/arbitrate regulation
1: If negotiate/arbitrate regulation applies to regulated goods or services, the section 52P
a: the parties to the negotiation or arbitration:
b: the matters (including the prices and quality standards associated with the regulated goods or services) that the parties must agree to by negotiation, or are bound to by arbitral award:
c: the period or periods for which any negotiated settlement or arbitral award applies:
d: a reference to the input methodologies that apply:
e: the information that the parties must provide to the other parties and, if necessary, the arbitrator, and the time frames for that provision:
f: the processes for negotiations, including the form of involvement by the parties, and the form, scope, and coverage of any negotiated settlement:
g: the time frames for the negotiations (including stages in negotiations) and, in particular, the date by which, if negotiations are not complete, the parties must enter into arbitration to settle any remaining unresolved matters:
h: the terms of any compulsory arbitration that takes place under section 53J
i: the date by which the arbitral award must be made:
j: the manner in which the parties must make publicly available any negotiated settlement, arbitral award, or both.
2: The Commission may include in the determination any other matters it considers necessary or desirable to promote the purpose of negotiate/arbitrate regulation.
3: If the parties to a negotiation agree to arbitration, the arbitration may be on whatever terms they agree to, but must be completed within the time frames set for the negotiation.
4: The Commission may extend any time frames set out in a section 52P
5: The terms of arbitration set by the Commission must—
a: allow the parties a reasonable period within which to agree on an arbitrator but, if agreement is not reached within that period (or any extended period allowed under subsection (4)), the terms must provide that the Commission must appoint the arbitrator (and may not appoint itself as the arbitrator); and
b: include provisions enabling the parties to enforce the arbitral award; and
c: include a right of appeal to the High Court, exercisable by any party to the arbitration, on a point of law only. Section 53I inserted 14 October 2008 section 4 Commerce Amendment Act 2008
53J: Compulsory arbitration
1: If a settlement is not reached (whether by negotiation or voluntary arbitration) within the time frame set by the Commission, the parties must enter into arbitration under this section on the terms set out in the section 52P
2: The Arbitration Act 1996 section 52P
3: The arbitrator’s role is to make an arbitral award that promotes the purpose of this Part.
4: If final consumers of regulated goods or services are not directly represented as parties in the arbitration, the arbitrator must have particular regard to the effect of the outcome of the arbitration on those final consumers.
5: The arbitral award is binding on the parties to the arbitration unless or until the parties agree to vary it. Section 53J inserted 14 October 2008 section 4 Commerce Amendment Act 2008
6: Default/customised price-quality regulation
Subpart 6 inserted 14 October 2008 section 4 Commerce Amendment Act 2008
53K: Purpose of default/customised price-quality regulation
The purpose of default/customised price-quality regulation is to provide a relatively low-cost way of setting price-quality paths for suppliers of regulated goods or services, while allowing the opportunity for individual regulated suppliers to have alternative price-quality paths that better meet their particular circumstances. Section 53K inserted 14 October 2008 section 4 Commerce Amendment Act 2008
53L: Overview of default/customised price-quality regulation
1: If goods or services are subject to default/customised price-quality regulation,—
a: the Commission sets default price-quality paths that apply for a regulatory period, and all regulated suppliers must apply those default price-quality paths; but
b: individual suppliers may make a proposal to the Commission for a customised price-quality path; and
c: the Commission may set a customised price-quality path for the supplier, and that then applies for a set period instead of a specified default price-quality path.
2: This section is only a guide. Section 53L inserted 14 October 2008 section 4 Commerce Amendment Act 2008
53M: Content and timing of price-quality paths
1: Every price-quality path (whether a default price-quality path or a customised price-quality path under this subpart, or an individual price-quality path under subpart 7
a: in relation to prices, either or both of the following with respect to a specified regulatory period:
i: the maximum price or prices that may be charged by a regulated supplier:
ii: the maximum revenues that may be recovered by a regulated supplier; and
b: the quality standards that must be met by the regulated supplier; and
c: the regulatory period.
2: A price-quality path may include incentives for an individual supplier to maintain or improve its quality of supply, and those incentives may include (without limitation) any of the following:
a: penalties by way of a reduction in the supplier's maximum prices or revenues based on whether, or by what amount, the supplier fails to meet the required quality standards:
b: rewards by way of an increase in the supplier's maximum prices or revenue based on whether, or by what amount, the supplier meets or exceeds the required quality standards:
c: consumer compensation schemes that set minimum standards of performance and require the supplier to pay prescribed amounts of compensation to consumers if it fails to meet those standards:
d: reporting requirements, including special reporting requirements in asset management plans, if the supplier fails to meet the quality standards.
3: Quality standards may be prescribed in any way the Commission considers appropriate (such as targets, bands, or formulae) and may include (without limitation)—
a: responsiveness to consumers; and
b: in relation to electricity lines services, reliability of supply, reduction in energy losses, and voltage stability or other technical requirements.
4: A regulatory period must be 5 years.
5: However, the Commission may set a shorter period than 5 years if it considers that it would better meet the purposes of this Part, but in any event may not set a term less than 4 years.
6: Subsections (4) and (5) are subject to section 53W
7: No default price-quality path applies to a supplier until the date specified in the relevant section 52P the determination is published as referred to in section 52P(9) Section 53M inserted 14 October 2008 section 4 Commerce Amendment Act 2008 Section 53M(7) amended 28 October 2021 section 3 Secondary Legislation Act 2021
53N: Monitoring compliance with price-quality paths
For the purpose of monitoring compliance with a price-quality path (whether a default price-quality path or a customised price-quality path under this subpart, or an individual price-quality path under subpart 7 section 98
a: a written statement that states whether or not the supplier has complied with the price-quality path applying to that supplier:
b: a report on the written statement referred to in paragraph (a) that is signed by an auditor in accordance with any form specified by the Commission:
c: sufficient information to enable the Commission to properly determine whether all applicable price-quality paths have been complied with:
d: a certificate, in the form specified by the Commission and signed by at least 1 director of the supplier, confirming the truth and accuracy of any information provided under this section. Section 53N inserted 14 October 2008 section 4 Commerce Amendment Act 2008 Default price-quality path Heading inserted 14 October 2008 section 4 Commerce Amendment Act 2008
53O: Section 52P determination to set out requirements of default price-quality paths
If default price-quality regulation applies to regulated goods or services, the section 52P
a: the starting prices that apply to the supply of the goods or services during the first regulatory period; and
b: the rate or rates of change in prices, relative to the Consumers
c: the quality standards that apply during the first regulatory period; and
d: the date or dates on which the default price-quality path (or any part of it) takes effect; and
e: the annual date by which any proposal for a customised price-quality path must be received; and
f: the annual date by which compliance must be demonstrated in accordance with section 53N Section 53O inserted 14 October 2008 section 4 Commerce Amendment Act 2008 Section 53O(b) amended 1 September 2022 section 107(1) Data and Statistics Act 2022
53P: Resetting starting prices, rates of change, and quality standards
1: Before the end of the first and every subsequent regulatory period, the Commission must amend the section 52P section 53O(a)
2: In resetting starting prices, rates of change, and quality standards, the Commission must consult with interested parties.
3: The starting prices must be either—
a: the prices that applied at the end of the preceding regulatory period; or
b: prices, determined by the Commission, that are based on the current and projected profitability of each supplier.
4: Starting prices set in accordance with subsection (3)﻿(b) must not seek to recover any excessive profits made during any earlier period.
5: Subject to subsection (8), the Commission must set only 1 rate of change per type of regulated goods or services (for example, if the rate of change ( x x
6: The rate of change must be based on the long-run average productivity improvement rate achieved by either or both of suppliers in New Zealand, and suppliers in other comparable countries, of the relevant goods or services, using whatever measures of productivity the Commission considers appropriate.
7: When setting the rate of change, the Commission may take into account the effects of inflation on the inputs of suppliers of the relevant goods or services.
8: The Commission may set alternative rates of change for a particular supplier—
a: as an alternative, in whole or in part, to the starting prices set under subsection (3)﻿(b) if, in the Commission's opinion, this is necessary or desirable to minimise any undue financial hardship to the supplier or to minimise price shock to consumers; or
b: as an incentive (under section 53M(2)
9: Any alternative rates of change set under subsection (8) may include step changes.
10: The Commission may not, for the purposes of this section, use comparative benchmarking on efficiency in order to set starting prices, rates of change, quality standards, or incentives to improve quality of supply.
11: If starting prices, rates of change, and quality standards have not been set by way of an amendment to the relevant section 52P Section 53P inserted 14 October 2008 section 4 Commerce Amendment Act 2008 Customised price-quality paths Heading inserted 14 October 2008 section 4 Commerce Amendment Act 2008
53Q: Supplier may propose customised price-quality path
1: At any time after a default price-quality path is set by the Commission, a supplier that is (or is likely to be) subject to the default price-quality path may make a proposal to the Commission for a customised price-quality path to apply to that supplier.
2: Every proposal must—
a: comply with the input methodologies referred to in section 52T(1)﻿(d)
b: be made within the period, or by the annual date, specified for the purpose in the section 52P
c: include the standard application fee for customised price-quality path proposals; and
d: apply or adopt all relevant input methodologies.
3: A supplier may make only 1 proposal during a regulatory period, and may not make a proposal within the 12 months before a default price-quality path is due to be reset.
4: A supplier that makes a proposal must make it publicly available as soon as practicable after it has been made to the Commission. Section 53Q inserted 14 October 2008 section 4 Commerce Amendment Act 2008
53R: Effect of making proposal for customised price-quality path
A supplier that makes a proposal to the Commission—
a: cannot withdraw the proposal; and
b: is bound, for the regulatory period to which it applies, by any customised price-quality path that the Commission subsequently sets for the supplier. Section 53R inserted 14 October 2008 section 4 Commerce Amendment Act 2008
53S: Preliminary assessment of proposal
1: Within 40 working days after receiving a proposal, the Commission must determine whether the proposal complies with the input methodologies referred to in section 52T(1)﻿(d)
2: If the proposal does not comply with those requirements, the Commission may, at its discretion,—
a: discontinue any consideration of the proposal; or
b: request the supplier to remedy the deficiencies in the proposal by providing additional information within 40 working days.
3: If the supplier fails to provide any additional information requested by the Commission under subsection (2)﻿(b), the Commission may discontinue any consideration of the proposal.
4: If a proposal is discontinued under subsection (2) or (3), section 53Q(3) Section 53S inserted 14 October 2008 section 4 Commerce Amendment Act 2008
53T: Process and timing for assessing proposal
1: Once the Commission decides that a proposal complies with the input methodologies relating to the process for, and content of, customised price-quality path proposals, it must—
a: give notice that the proposal is under consideration, and how copies of the proposal may be obtained; and
b: set a date for interested persons to make submissions on the proposal; and
c: have regard to any submissions made by that date.
2: The Commission must make a determination on a proposal for a customised price-quality path within 150 working days of receiving a complete proposal, subject to sections 53U 53Z Section 53T inserted 14 October 2008 section 4 Commerce Amendment Act 2008
53U: Extension of time frames
The time frames specified in sections 53S 53T Section 53U inserted 14 October 2008 section 4 Commerce Amendment Act 2008
53V: Determination setting customised price-quality path
1: The Commission may determine any customised price-quality path that the Commission considers appropriate for a supplier that has made a proposal.
2: To avoid doubt, and without limitation, in determining a customised price-quality path that complies with section 53M
a: set a price-quality path that is lower, or otherwise less favourable to the regulated supplier, than the default price-quality path that would otherwise apply:
b: if it sets a lower or a higher price than applied under the default price-quality path, apply claw-back:
c: with the agreement of the supplier, vary an input methodology that would otherwise apply to the supplier.
3: A customised price-quality path for a supplier is imposed by way of an amendment to the section 52P Section 53V inserted 14 October 2008 section 4 Commerce Amendment Act 2008
53W: Term of customised price-quality paths
1: A customised price-quality path applies for 5 years.
2: However, the Commission may set a shorter period than 5 years if it considers this would better meet the purpose of this Part, but in any event may not set a term less than 3 years. Section 53W inserted 14 October 2008 section 4 Commerce Amendment Act 2008
53X: What happens when customised price-quality path ends
1: When the customised price-quality path of a supplier of goods or services ends, the supplier is subject to the default price-quality path that is generally applicable to other suppliers of those goods or services.
2: The starting prices that apply at the beginning of the default price-quality path are those that applied at the end of the customised price-quality path unless, at least 4 months before the end of the customised price-quality path, the Commission advises the supplier that different starting prices must apply.
3: The supplier remains subject to the default price-quality path until—
a: the end of the period for which it applies to other suppliers; or
b: a new customised price-quality path begins to apply to the supplier.
4: To avoid doubt, a supplier who is or was subject to a customised price-quality path may apply in accordance with section 53Q Section 53X inserted 14 October 2008 section 4 Commerce Amendment Act 2008
53Y: Commission's costs
relating to assessing, setting, and reconsidering
1: The Commission’s costs in assessing a proposal for, and setting or reconsidering,
1A: If the amount paid by a person in respect of a proposal for a customised price-quality path exceeds the Commission's costs in assessing the proposal and (if applicable) setting or reconsidering the customised price-quality path, the Commission may refund the excess to the person who paid it.
2: The costs may be recovered in whatever manner the Commission determines. Section 53Y inserted 14 October 2008 section 4 Commerce Amendment Act 2008 Section 53Y heading amended 1 November 2010 section 148(1) Electricity Industry Act 2010 Section 53Y(1) amended 1 November 2010 section 148(2) Electricity Industry Act 2010 Section 53Y(1A) inserted 1 November 2010 section 148(3) Electricity Industry Act 2010
53Z: Prioritisation by Commission
1: The Commission is not required to consider any more than 4 proposals for a customised price-quality path relating to the same type of regulated goods or services in any one year.
2: If the Commission receives more than 4 proposals for a customised price-quality path relating to the same type of regulated goods or services in any one year, the Commission—
a: may defer the additional proposals to a subsequent year; but
b: must prioritise its consideration of the proposals in accordance with the criteria in subsection (3).
3: The criteria for Commission decisions on priorities are as follows:
a: quality and completeness of the initial proposal:
b: urgency of any proposed additional investment (compared to historic rates of investment) required to meet consumer requirements on quality:
c: materiality of the proposal relative to the size and revenues of the supplier. Section 53Z inserted 14 October 2008 section 4 Commerce Amendment Act 2008
53ZA: What happens if Commission does not make decision within time frame
1: This section applies if the Commission does not make a determination within 150 working days of receiving a complete proposal (or within any extended time agreed under section 53U
2: If the regulated supplier has not complied, in the Commission’s opinion, with any reasonable exercise by the Commission of its information-gathering powers under section 53ZD 98
3: If the regulated supplier has so complied, the customised proposal made under section 53Q
4: If a customised price-quality path proposal takes effect under subsection (3), the Commission must immediately prepare an amendment to the relevant section 52P Section 53ZA inserted 14 October 2008 section 4 Commerce Amendment Act 2008 What happens to price-quality paths if input methodologies change Heading inserted 14 October 2008 section 4 Commerce Amendment Act 2008
53ZB: What happens to price-quality paths if input methodologies change
1: Default or customised price-quality paths may not be reopened within a regulatory period on the grounds of a change in an input methodology, except as provided in subsection (2).
2: Every default and customised price-quality path must be reset by the Commission in accordance with section 53P
a: an input methodology changes as a result of an appeal under section 52Z
b: had the changed methodology applied at the time the price-quality path was set, it would have resulted in a materially different path being set.
3: When resetting a default or customised price-quality path under subsection (2), the Commission must apply claw-back. Section 53ZB inserted 14 October 2008 section 4 Commerce Amendment Act 2008
7: Individual price-quality regulation
Subpart 7 inserted 14 October 2008 section 4 Commerce Amendment Act 2008
53ZC: Price-quality path for individual businesses
1: If individual price-quality regulation applies to goods or services supplied by a supplier, the Commission may set the price-quality path for that supplier using any process, and in any way, it thinks fit, but must use the input methodologies that apply to the supply of those goods or services.
2: The following provisions of subpart 6
a: sections 53M 53N
b: section 53ZB Section 53ZC inserted 14 October 2008 section 4 Commerce Amendment Act 2008
8: Miscellaneous provisions
Subpart 8 inserted 14 October 2008 section 4 Commerce Amendment Act 2008
53ZD: Powers of Commission under this Part
1: For the purpose of carrying out its functions and exercising its powers under this Part, the Commission may, in addition to exercising its powers under section 98
a: consult with any person the Commission considers may assist it:
b: investigate any of the following:
i: how effectively and efficiently any supplier of the goods or services is supplying the goods or services:
ii: how any formula, methodology, or price-quality path being considered by the Commission may be applied, or how any formula, methodology, or price-quality provision determined or authorised by the Commission has been applied, in considering proposed prices or quality standards:
iii: how any conditions relating to the quality of the goods or services may be, or are being, fulfilled:
c: examine, consider, or investigate any activity, cost, revenue, transfer, asset valuation, circumstance, or event that is occurring or that has occurred during the previous 7 years:
d: by notice in writing, require any supplier of the goods or services—
i: to prepare and produce forecasts, forward plans, or other information; and
ii: to apply any methodology specified by the Commission in the preparation of forecasts, forward plans, or other information:
e: by notice in writing, require any supplier of the goods or services, or any previous supplier of them that the Commission has reason to believe may have information or documents relevant to the investigation, audit, or inquiry, at the time and place specified in the notice, to do either or both of the following:
i: produce or supply to the Commission documents and information in relation to the goods or services, or the prices or operations of the person in respect of the goods or services:
ii: to answer any questions about any matter that the Commission has reason to believe may be relevant to the investigation, audit, or inquiry:
f: by notice in writing, require any supplier of the goods or services, at the time and place specified in the notice, to produce or supply to the Commission an expert opinion from an appropriately qualified person, or from a member of a class of appropriately qualified persons, as determined by the Commission in relation to the matters in paragraph (b), (c), (d), or (e)﻿(i).
2: In subsection (1)﻿(e), inquiry sections 56F to 56H Section 53ZD inserted 14 October 2008 section 4 Commerce Amendment Act 2008 Section 53ZD(2) inserted 26 October 2018 section 9 Commerce Amendment Act 2018
53ZE: Levies
1: Every supplier of regulated goods or services (or prescribed class of suppliers of regulated goods or services) must pay to the Minister the levy determined in accordance with regulations made under subsection (2).
2: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations—
a: specifying the amount of levies, or method of calculating or ascertaining the amount of levies, on the basis that the estimated costs for an appropriation period
b: including, or providing for the inclusion, in levies of any shortfall in recovering those actual costs:
c: refunding, or providing for refunds of, any over-recovery of those actual costs:
d: providing different levies for different classes of suppliers or goods or services:
e: specifying the appropriation period appropriation period appropriation period appropriation period appropriation period
f: providing for the payment and collection of those levies:
g: for the first appropriation period
i: that the regulations are made and come into effect after that period
ii: that the goods or services become regulated after the costs were incurred (for example, costs incurred by the Commission in preparing input methodologies):
h: requiring payment of a levy for an appropriation period or a part appropriation period that appropriation period
i: exempting or providing for exemptions from, and providing for waivers of, the whole or any part of the levy for any case or class of cases.
2A: In subsection (2), appropriation period
a: a financial year; or
b: if the estimated costs will be incurred under the authority of a multi-year appropriation or of a multi-year appropriation proposed in any Estimates, the financial years to which the multi-year appropriation applies.
2B: In subsection (2A)﻿(b),— Estimates
a: has the meaning given in section 2(1)
b: includes Supplementary Estimates as defined in section 2(1) multi-year appropriation see section 10
3: The amount of any unpaid levy is recoverable in any court of competent jurisdiction as a debt due to the Crown.
4: The Minister must consult with the suppliers of regulated goods or services, or representatives of those suppliers, before making a recommendation for the purposes of subsection (2).
5: Regulations under this section are secondary legislation ( see Part 3
6: If regulations authorise a person to grant exemptions or waivers referred to in subsection (2)﻿(i),—
a: an instrument granting an exemption or a waiver is secondary legislation ( see Part 3
b: the regulations must contain a statement to that effect. The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation referred to in subsection (5). Legislation Act 2019 requirements for secondary legislation referred to in subsection (5) Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation referred to in subsection (6)﻿(a). Legislation Act 2019 requirements for secondary legislation referred to in subsection (6)﻿(a) Publication See the relevant publication, presentation, and disallowance table in the secondary legislation referred to in subsection (5) LA19 ss 73 74 cl 14 Presentation The Minister must present it to the House of Representatives, unless a transitional exemption applies under Schedule 1 LA19 s 114 cl 32 Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 53ZE inserted 14 October 2008 section 4 Commerce Amendment Act 2008 Section 53ZE(2)﻿(a) amended 1 July 2019 section 10(1) Regulatory Systems (Commercial Matters) Amendment Act 2017 Section 53ZE(2)﻿(e) amended 1 July 2019 section 10(2) Regulatory Systems (Commercial Matters) Amendment Act 2017 Section 53ZE(2)﻿(g) amended 1 July 2019 section 10(3) Regulatory Systems (Commercial Matters) Amendment Act 2017 Section 53ZE(2)﻿(g)﻿(i) amended 1 July 2019 section 10(4) Regulatory Systems (Commercial Matters) Amendment Act 2017 Section 53ZE(2)﻿(h) amended 1 July 2019 section 10(5) Regulatory Systems (Commercial Matters) Amendment Act 2017 Section 53ZE(2)﻿(h) amended 1 July 2019 section 10(6) Regulatory Systems (Commercial Matters) Amendment Act 2017 Section 53ZE(2A) inserted 1 July 2019 section 10(7) Regulatory Systems (Commercial Matters) Amendment Act 2017 Section 53ZE(2B) inserted 1 July 2019 section 10(7) Regulatory Systems (Commercial Matters) Amendment Act 2017 Section 53ZE(5) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Section 53ZE(6) inserted 28 October 2021 regulation 43 Legislation Act (Amendments to Legislation) Regulations 2021
53ZF: Material may be incorporated by reference
Schedule 5
a: a section 52P
b: an input methodology. Section 53ZF inserted 14 October 2008 section 4 Commerce Amendment Act 2008
53ZG: Power to exempt disclosure of commercially sensitive information
1: The Commission may, on application, exempt any person or class of persons, in respect of any information or class of information that the Commission considers to be commercially sensitive, from any obligation to make that information publicly available as part of the requirements of information disclosure regulation, negotiate/arbitrate regulation, or customised price-quality regulation.
2: The Commission may grant the exemption on any terms and conditions that it thinks fit.
3:
4: The Commission may, in like manner, vary or revoke any exemption.
5: The Commission must keep a list of all current exemptions made by it under this section available for public inspection free of charge during normal office hours of the Commission at the offices of the Commission.
6: An exemption, and any variation or revocation of it, is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication The maker must publish it in the Gazette LA19 ss 73 74(1)﻿(a) cl 14 Presentation It is not required to be presented to the House of Representatives because a transitional exemption applies under Schedule 1 LA19 s 114 cl 32(1)﻿(a) Disallowance It is not disallowable because an exemption applies under Schedule 3 LA19 s 115(d) Sch 3 This note is not part of the Act. Section 53ZG inserted 14 October 2008 section 4 Commerce Amendment Act 2008 Section 53ZG(3) repealed 28 October 2021 section 3 Secondary Legislation Act 2021 Section 53ZG(6) replaced 28 October 2021 section 3 Secondary Legislation Act 2021
9: Electricity lines services
Subpart 9 heading inserted 1 April 2009 section 4 Commerce Amendment Act 2008 Application, overview, and interpretation Heading inserted 1 April 2009 section 4 Commerce Amendment Act 2008
54: Overview of how subpart applies
1: This subpart provides—
a: that all suppliers of electricity lines services are subject to information disclosure regulation; and
b: that suppliers of electricity lines services that are not consumer-owned are also subject to price-quality regulation; and
c: for the transition to the new regime provided for in this Part.
2: This section is only a guide. Section 54 substituted 1 April 2009 section 4 Commerce Amendment Act 2008
54A: Overview of when subpart applies
1: This subpart applies on and after 1 April 2009.
2: However, sections 54D(3) 54N
3: This section is only a guide. Section 54A inserted 1 April 2009 section 4 Commerce Amendment Act 2008
54B: Interpretation for subpart
1: In this subpart, unless the context otherwise requires,— administrative settlement section 54J consumer-owned section 54D electricity lines services section 54C Part 4A Commerce Amendment Act 2008 threshold Part 4A Transpower
2: References in this subpart to Transpower include references to Transpower in its role as system operator under the Electricity Industry Act 2010 Section 54B inserted 1 April 2009 section 4 Commerce Amendment Act 2008 Section 54B(2) added 1 November 2010 section 149 Electricity Industry Act 2010
54C: Meaning of electricity lines services
1: In this subpart, unless the context otherwise requires, electricity lines services
a: means the conveyance of electricity by line in New Zealand; and
b: with respect to services performed by Transpower, includes services performed as system operator.
2: However, none of the following are electricity lines services:
a: conveying electricity solely for the supplier’s own consumption or for the consumption of the supplier’s associates:
b: conveying electricity only from a generator to the national grid or from the national grid to a generator:
c: conveying electricity (other than via the national grid) only from a generator to a local distribution network or from a local distribution network to a generator:
d: conveying electricity by lines that are not connected, directly or indirectly, to the national grid:
e: conveying electricity only by a line or lines that are mostly in competition with a line or lines operated by another supplier of electricity lines services that is not an associate of the person, provided that the competition is actual competition and not potential competition:
f: conveying electricity if the total circuit length of all of the prescribed voltage electric lines provided by the supplier (or over which electricity is conveyed by the supplier, as the case may be) is less than 25 kilometres:
g: conveying electricity if the total amount of electricity conveyed to consumers by the supplier is less than 20 gigawatt hours per annum:
h: conveying electricity if the total number of consumers to whom the supplier conveys electricity is less than 500.
3: The prescribed voltage electric lines, the electricity conveyed, or the number of consumers to whom electricity is conveyed, when measured in relation to a supplier include, for the purposes of subsection (2)﻿(f) to (h), the lines provided by, electricity conveyed by, or number of consumers of, any associate of the supplier.
4: In this section, unless the context otherwise requires,— associate section 73 consumer section 2(1) lines section 2(1) national grid section 5 prescribed voltage electric line Section 54C inserted 1 April 2009 section 4 Commerce Amendment Act 2008 Section 54C(1) substituted 1 November 2010 section 150(1) Electricity Industry Act 2010 Section 54C(4) associate amended 1 November 2010 section 150(2) Electricity Industry Act 2010 Section 54C(4) national grid amended 1 November 2010 section 150(3) Electricity Industry Act 2010
54D: Definition of consumer-owned
1: In this subpart, unless the context otherwise requires, a supplier is consumer-owned
a: all the control rights and all the equity return rights (within the meaning of clause 6
b: the trustees of each customer trust or community trust, or the committee of shareholders of each customer co-operative, as the case may be, that is referred to in paragraph (a) are elected by the persons who are consumers of the supplier in accordance with subsections (2A) to (2C); and
c: at least 90% of the persons who are consumers of the supplier as at an income distribution resolution date benefit from that income distribution; and
d: the supplier has fewer than 150 000 ICPs.
2: In this section, unless the context otherwise requires,— community trust
a: at least 90% of the income beneficiaries comprise persons who are a class or classes identified by reference to their domicile or location or operation within the geographic area or areas of operation of the supplier; and
b: at least 90% of its income distributions are paid to those beneficiaries or for purposes related to that geographic area or areas consumer section 2(1) section 54H customer co-operative section 2(1) customer trust
a: at least 90% of the income beneficiaries comprise persons who are a class or classes identified by reference to any of—
i: the person's connection to the lines of the supplier:
ii: the person's receipt of electricity from the supplier:
iii: the person's liability for payment for supply of electricity from the supplier:
iv: the person's liability for payment for the connection to the lines of the supplier:
v: the person's liability for payment for line services supplied by the supplier; and
b: at least 90% of its income distributions are paid to those beneficiaries ICP income distribution resolution date
2A: The requirements in respect of elections for the purposes of subsection (1)﻿(b) are as follows:
a: every trustee of the customer trust or community trust, or every member of the committee of shareholders of each customer co-operative, as the case may be, must have been elected solely by the persons who are consumers of the supplier; and
b: either—
i: at least 90% of the persons who are consumers of the supplier at the time of the election are eligible to vote in those elections; or
ii: in the case of a customer trust or community trust, there is ward-based voting that complies with the requirements of subsection (2B); and
c: each consumer must have an equal vote.
2B: The requirements for ward-based voting are as follows:
a: at least 90% of the persons in a ward who are consumers of the supplier at the time of the election are eligible to vote in the election of all of the trustees of that ward; and
b: ward boundaries must provide for effective and fair representation of all consumers of the supplier, and in particular,—
i: the proportion of consumers in relation to the number of trustees of the relevant trust must be approximately equal in each ward; and
ii: the wards must not be based on volume of electricity supplied; and
c: ward boundaries must be reviewed periodically (at intervals determined by the Commission) in consultation with all consumers of the supplier.
2C: A trustee of a customer trust or community trust, or a member of the committee of shareholders of a customer co-operative, as the case may be, must be treated as having been elected solely by the persons who are consumers of the supplier if the person—
a: has been declared to be elected without an election in the case of a nominee at an election where the number of nominations was equal to or less than the number of vacancies; or
b: has been declared to be elected as the next-highest-polling candidate in the case where a higher-polling candidate at the election was unable to fill the elected position; or
c: has been declared to be elected by the remaining trustees or members following a casual vacancy that arose between elections, provided that—
i: the person is the first person to have been so elected since the last election at which consumers of the supplier voted; and
ii: the person is elected to hold office only until the next scheduled election at which consumers of the supplier will vote.
2D: The Commerce Commission may require a supplier that claims to meet the criteria in this section to verify that claim by statutory declaration.
2E: The declaration must be made by the persons and in the form required by the Commerce Commission.
3: As soon as practicable after this subsection comes into force, the Minister must publish a notice in the Gazette
4: The notice in subsection (3) is only for information purposes and has no legal effect. Section 54D inserted 1 April 2009 section 4 Commerce Amendment Act 2008 Section 54D(1)﻿(a) amended 1 November 2010 section 151(1) Electricity Industry Act 2010 Section 54D(1)﻿(b) substituted 1 November 2010 section 151(2) Electricity Industry Act 2010 Section 54D(2A) inserted 1 November 2010 section 151(3) Electricity Industry Act 2010 Section 54D(2B) inserted 1 November 2010 section 151(3) Electricity Industry Act 2010 Section 54D(2C) inserted 1 November 2010 section 151(3) Electricity Industry Act 2010 Section 54D(2D) inserted 1 November 2010 section 151(3) Electricity Industry Act 2010 Section 54D(2E) inserted 1 November 2010 section 151(3) Electricity Industry Act 2010 Section 54D(3) brought into force 14 October 2008 section 2(1)﻿(b) Commerce Amendment Act 2008 Imposition of regulation under this Part Heading inserted 1 April 2009 section 4 Commerce Amendment Act 2008
54E: Electricity lines services declared to be regulated
Electricity lines services are regulated under this Part. Section 54E inserted 1 April 2009 section 4 Commerce Amendment Act 2008
54F: All electricity lines services are subject to information disclosure regulation
All electricity lines services are subject to information disclosure regulation under this Part. Section 54F inserted 1 April 2009 section 4 Commerce Amendment Act 2008
54G: Certain electricity lines services are also subject to default/customised price-quality regulation
1: All electricity lines services (other than those supplied by Transpower) are subject to default/customised price-quality regulation under this Part unless they are exempt.
2: All electricity lines services that are supplied by a supplier that is consumer-owned are exempt (unless an Order in Council has been made in respect of the service under section 54H Section 54G inserted 1 April 2009 section 4 Commerce Amendment Act 2008
54H: How exempt status can be lost and default/customised price-quality regulation can be applied to consumer-owned suppliers
1: Electricity lines services that are supplied by a supplier that is consumer-owned cease to be exempt for the purpose of section 54G
2: The Minister may make a recommendation only if the Minister is satisfied that either—
a: the Commission has advised the Minister that a supplier has ceased to be consumer-owned within the meaning of section 54D
b: the Commission has recommended to the Minister that the purpose of this Part would be better met if price-quality regulation were imposed on the supplier under this Part.
2A: A supplier must give notice in writing to the Commission within 10 working days after becoming aware that it has ceased to be consumer-owned.
3: The Commission may make a recommendation under subsection (2)﻿(b) only following consideration of a petition made by 1 or more of the following:
a: 15% of the persons who are domestic consumers of the supplier as at the date of the petition who are eligible to vote in elections for trustees of the customer trust or community trust, or for members of the committee of shareholders of the customer co-operative:
b: 20% of the persons who are domestic consumers of the supplier as at that date who are not eligible to vote in elections for trustees of the customer trust or community trust, or for members of the committee of shareholders of the customer co-operative:
c: 25% of the persons who are non-domestic consumers (either by number or by consumption of that class of consumer) of the supplier as at that date.
3A: In this section, domestic consumer section 5
4: If exact figures are not available as to the number of persons in a class referred to in subsection (3), the Commission may rely on any estimate that the Commission considers to be a reasonable estimate.
5: Petition
6: The Governor-General may, on the recommendation of the Minister, make an Order in Council in accordance with this section.
7: An order under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 54H inserted 1 April 2009 section 4 Commerce Amendment Act 2008 Section 54H(2A) inserted 1 November 2010 section 152(1) Electricity Industry Act 2010 Section 54H(3)﻿(a) substituted 1 November 2010 section 152(2) Electricity Industry Act 2010 Section 54H(3)﻿(b) substituted 1 November 2010 section 152(2) Electricity Industry Act 2010 Section 54H(3)﻿(c) substituted 1 November 2010 section 152(2) Electricity Industry Act 2010 Section 54H(3A) inserted 1 November 2010 section 152(3) Electricity Industry Act 2010 Section 54H(7) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
54I: Commission must make section 52P determination specifying how subpart applies
1: The section 52P
2: The section 52P section 54J
3: The section 52P section 54H Section 54I inserted 1 April 2009 section 4 Commerce Amendment Act 2008
54J: Section 52P determinations setting out default price-quality paths applying from 1 April 2009
1: This section applies in respect of suppliers of electricity lines services that are subject to default/customised price-quality regulation on and after 1 April 2009.
2: On and after 1 April 2009, the thresholds for large electricity lines businesses that expire on 31 March 2009 are deemed to be section 52P
a: apply those thresholds to each supplier as if the thresholds were default price-quality paths; and
b: state that the regulatory period for each supplier ends on 31 March 2010; and
c: comply with sections 52P 53O
d: were notified in the Gazette section 52P(7)﻿(b)
3: However, a breach of a default price-quality path before the close of 31 March 2010 must be dealt with in accordance with section 54N Part 6
4: Nothing in this section affects sections 54N 54O Section 54J inserted 1 April 2009 section 4 Commerce Amendment Act 2008
54K: Section 52P determinations setting out default price-quality paths applying from 1 April 2010
1: Before 1 April 2010, the Commission must reset the default price-quality paths for each supplier that apply on and after that date, using the process set out in section 53P
2: The Commission may reset the default price-quality paths even if all or any of the relevant input methodologies have not been determined.
3: If an input methodology is published after 1 April 2010 and if, had that methodology applied at the time the default price-quality paths were reset as required by subsection (1), it would have resulted in a materially different path being set, then the Commission may reset the default price-quality paths in accordance with section 53P section 53ZB(1)
4: However, the Commission may not exercise its powers in subsection (3) later than 9 months after the date of publication of the input methodology.
5: Nothing in this section affects sections 54N 54O Section 54K inserted 1 April 2009 section 4 Commerce Amendment Act 2008 Transitional arrangements Heading inserted 1 April 2009 section 4 Commerce Amendment Act 2008
54L: Administrative settlements made before 1 April 2009 (other than with Transpower)
1: This section applies to every administrative settlement accepted by the Commission before 1 April 2009 in respect of a breach of a threshold other than an administrative settlement with Transpower.
2: The enactment of the Commerce Amendment Act 2008
3: Any breach of the administrative settlement must be dealt with in accordance with the terms of the settlement.
4: The expiry of the administrative settlement must be treated as if it were the end of a customised price-quality path, and section 53X Section 54L inserted 1 April 2009 section 4 Commerce Amendment Act 2008
54M: Administrative settlements with Transpower made before 1 April 2009
1: This section applies to any administrative settlement with Transpower that is accepted by the Commission before 1 April 2009 in respect of a breach of a threshold.
2: Any breach of an administrative settlement with Transpower may be dealt with under Part 6
3: Before the expiry of the administrative settlement, the Commission must recommend to the Minister that an Order in Council be made under section 52N
a: Transpower is subject to default/customised price-quality regulation under subpart 6
b: Transpower is subject to individual price-quality regulation under subpart 7
4: Subpart 2 section 52P
5: If an Order in Council declares that Transpower is subject to default/customised price-quality regulation, the section 52P section 53P
6: Section 54M inserted 1 April 2009 section 4 Commerce Amendment Act 2008 Section 54M(3)﻿(b) amended 1 November 2010 section 153(1) Electricity Industry Act 2010 Section 54M(6) repealed 1 November 2010 section 153(2) Electricity Industry Act 2010
54N: Breaches of thresholds and default price-quality paths before 1 April 2010
1: This section applies to—
a: any breach of a threshold that occurred before the close of 31 March 2007; and
b: any breach of a threshold that occurs on or after 1 April 2007 and before the close of 31 March 2009; and
c: any breach of a default price-quality path that occurs on or after 1 April 2009 and before the close of 31 March 2010.
2: The Commission may not publish a notice of intention to declare control under Part 4A
a: in respect of a breach referred to in subsection (1)﻿(a), at any time after 1 October 2008; and
b: in respect of a breach referred to in subsection (1)﻿(b) or (c), at any time after the expiry of 12 months after the end of the financial year in which the breach occurs.
3: The Commission may, at any time before the expiry of 12 months after the date on which the Commission publishes a notice of intention to declare control under subsection (2) in respect of the breach,—
a: make a control declaration under Part 4A
b: enter into an administrative settlement in respect of the breach under Part 4A
4: The Commission may do anything under subsections (2) and (3) as if the Commerce Amendment Act 2008 section 52A Part 4A
5: To avoid doubt, the Commission may, but need not, apply input methodologies in acting under subsection (3).
6: Despite anything in Part 4A
a: the term of control, or of the settlement, must be not more than 5 years:
b: the expiry of the term must be treated as if it were the expiry of a customised price-quality path, and section 53X Section 54N inserted 14 October 2008 section 4 Commerce Amendment Act 2008
54O: Breaches of control imposed, or administrative settlements entered into, after 1 April 2009
1: If a supplier breaches control imposed, or an administrative settlement entered into, in accordance with section 54N(3) Part 6
2: To avoid doubt, this section applies whether or not the supplier is, after 1 April 2009, subject to default/customised price-quality regulation. Section 54O inserted 1 April 2009 section 4 Commerce Amendment Act 2008
54P: Proposals for customised price-quality paths
1: A supplier of electricity lines services may not propose a customised price-quality path until an input methodology section 52T(1)﻿(d) is published as referred to in section 52W
2: However, in accordance with section 53V(2) Section 54P inserted 1 April 2009 section 4 Commerce Amendment Act 2008 Section 54P(1) amended 28 October 2021 section 3 Secondary Legislation Act 2021 Section 54P(1) amended 1 November 2010 section 154(a) Electricity Industry Act 2010 Section 54P(1) amended 1 November 2010 section 154(b) Electricity Industry Act 2010 Energy efficiency Heading inserted 1 April 2009 section 4 Commerce Amendment Act 2008
54Q: Energy efficiency
The Commission must promote incentives, and must avoid imposing disincentives, for suppliers of electricity lines services to invest in energy efficiency and demand side management, and to reduce energy losses, when applying this Part in relation to electricity lines services. Section 54Q inserted 1 April 2009 section 4 Commerce Amendment Act 2008 Transpower grid upgrade plans and capital expenditure proposals Heading substituted 1 November 2010 section 155 Electricity Industry Act 2010
54R: Approval of Transpower's grid upgrade plans
1: The role of the Electricity Commission in requesting or approving grid upgrade plan proposals by Transpower (including proposals to amend existing grid upgrade plans) is transferred to the Commission on the commencement date.
2: Subsection (1) applies both to proposals made on and after the commencement date and to any proposals that were requested or under consideration by the Electricity Commission before the commencement date.
3: Until the input methodology required by section 54S as referred to in section 52W
a: Transpower must comply with Part F of the Electricity Governance Rules, as that Part relates to grid upgrade plan proposals; and
b: when considering grid upgrade plan proposals, the Commission—
i: must apply, with any necessary modifications, the grid investment test set out in Schedule F4 of Part F of the Electricity Governance Rules; and
ii: must apply, with any necessary modifications, those parts of section III of Part F of the Electricity Governance Rules that relate to the process for approving grid upgrade plans (which includes rules 12 to 15 and 17.2); and
iii: need not repeat any processes already undertaken by the Electricity Commission or undertake any processes that the Electricity Commission would have been required to undertake.
4: To avoid doubt,—
a: subsection (1) takes effect on the commencement date whether or not the Commerce Act (Transpower Thresholds) Notice 2008
b: nothing in this section affects the transfer from the Electricity Commission to the Electricity Authority of all other roles relating to transmission, such as setting grid reliability standards and the transmission pricing methodology.
5: The Commission may change any timetables previously agreed for consultation on, and approval of, grid upgrade plan proposals, but must first consult Transpower on any timetable changes.
6: To facilitate the transfer of roles referred to in subsection (1), the Electricity Authority must give the Commission copies of all information it holds regarding grid upgrade plan proposals that were under consideration by the Electricity Commission before the commencement date.
7: In this section,— commencement date Electricity Governance Rules Electricity Industry Act 2010 grid upgrade plan Section 54R substituted 1 November 2010 section 155 Electricity Industry Act 2010 Section 54R(3) amended 28 October 2021 section 3 Secondary Legislation Act 2021
54S: Commission to prepare input methodology for capital expenditure proposals
1: The Commission must determine an input methodology for Transpower's capital expenditure proposals.
2: The input methodology must include—
a: requirements that must be met by Transpower, including the scope and specificity of information required, the extent of independent verification and audit, and the extent of consultation and agreement with consumers; and
b: the criteria the Commission will use to evaluate capital expenditure proposals; and
c: time frames and processes for evaluating capital expenditure proposals, including what happens if the Commission does not comply with those time frames.
3: The input methodology must be determined no later than 1 November 2011; but the Minister may, on the written request of the Commission, extend the deadline once by a period of up to 3 months, in which case notice of the extension must be given in the Gazette
4: Subpart 3 section 52T 1986 No 5 ss 52T(1)﻿(d), 52U Section 54S substituted 1 November 2010 section 155 Electricity Industry Act 2010
54T: Procedure before jurisdiction order can be made
Section 54T repealed 1 November 2010 section 155 Electricity Industry Act 2010
54U: Levies during transition in jurisdiction
Section 54U repealed 1 November 2010 section 155 Electricity Industry Act 2010 Interface with Electricity Industry Act 2010 Heading inserted 1 November 2010 section 156 Electricity Industry Act 2010
54V: Impact of certain decisions made under Electricity Industry Act 2010
1: The Electricity Authority must consult with the Commission before amending the Electricity Industry Participation Code (the Code in relation to electricity lines services
2: The Electricity Authority must advise the Commission as soon as practicable after doing any of the following things that are likely in relation to electricity lines services
a: making any provision of the Code:
b: making any decision under the Code:
c: undertaking any market-facilitation measures.
d:
3: The Electricity Authority must advise the Commission, as soon as practicable, following any change in the Code that results in increased costs to a supplier of electricity lines services
4: The Commission must take into account, before exercising any of its powers or performing any of its functions in relation to electricity lines services under this Part,—
a: any provision of the Code, or decision made under it, that relates to or affects—
i: pricing methodologies that apply to a supplier of electricity lines services; or
ii: quality or information requirements that apply to a supplier of electricity lines services:
b: any market-facilitation measures of which it receives advice under subsection (2)﻿(c):
c: the levy payable by a supplier of electricity lines services under section 128
d: the continuance of supply obligations imposed by section 105
5: The Commission must, if asked by the Electricity Authority to do so, reconsider a section 52P subsection (3) or (4)
6: Section 54V substituted 1 November 2010 section 156 Electricity Industry Act 2010 Section 54V(1) amended 1 September 2022 section 52(1) Electricity Industry Amendment Act 2022 Section 54V(2) amended 1 September 2022 section 52(2) Electricity Industry Amendment Act 2022 Section 54V(2) amended 1 September 2022 section 52(3) Electricity Industry Amendment Act 2022 Section 54V(2)﻿(c) replaced 1 September 2022 section 52(4) Electricity Industry Amendment Act 2022 Section 54V(2)﻿(d) repealed 1 September 2022 section 52(4) Electricity Industry Amendment Act 2022 Section 54V(3) amended 1 September 2022 section 52(5) Electricity Industry Amendment Act 2022 Section 54V(4) replaced 1 September 2022 section 52(6) Electricity Industry Amendment Act 2022 Section 54V(5) amended 1 September 2022 section 52(7) Electricity Industry Amendment Act 2022 Section 54V(6) repealed 1 September 2022 section 52(8) Electricity Industry Amendment Act 2022 Savings provisions Heading inserted 1 April 2009 section 4 Commerce Amendment Act 2008
54W: Savings provision relating to existing information disclosure requirements
Any information disclosure requirements published by the Commission under subpart 3 section 54I(1) Section 54W inserted 1 April 2009 section 4 Commerce Amendment Act 2008
54X: Savings provision for existing levy regulations for electricity lines businesses
1: Any regulations made pursuant to section 57ZK Part 4A section 53ZE
2: Subsection (1) applies as if—
a: references in those regulations to the Commission's costs included references to the costs of exercising and performing the Commission's powers, duties, and functions under this Part, and enforcing the obligations under this Part, in respect of those persons, and with all other necessary modifications; and
b: terms used in subsection (1) have the same meaning as they do in those regulations. Section 54X inserted 1 April 2009 section 4 Commerce Amendment Act 2008
10: Gas pipeline services
Subpart 10 heading inserted 14 October 2008 section 4 Commerce Amendment Act 2008 Overview and interpretation Heading inserted 14 October 2008 section 4 Commerce Amendment Act 2008
55: Overview of subpart
1: This subpart provides—
a: that certain gas pipeline services are subject to information disclosure regulation and price-quality regulation; and
b: for the transition to the new regime provided for in this Part.
2: This section is only a guide. Section 55 substituted 14 October 2008 section 4 Commerce Amendment Act 2008
55A: Meaning of gas pipeline services
1: In this subpart, unless the context otherwise requires, gas pipeline services
2: However, none of the following are gas pipeline services:
a: conveying natural gas to a gas processing facility:
b: conveying natural gas if the total amount of gas conveyed to consumers by the supplier is less than 75 000 gigajoules per annum:
c: conveying natural gas by a pipeline that is listed in the second column of Schedule 6
3: The gas conveyed, when measured in relation to a supplier includes, for the purposes of subsection (2)﻿(b), the gas conveyed by any associate of the supplier.
4: In this section, unless the context otherwise requires,— associate section 12 consumer section 2(1) container section 2(1) gas refueller section 2(1) pipeline
a: means everything used, or designed or intended for use, (whether above or below ground) in or in connection with the conveyance of natural gas between—
i: the boundary of the gas field or gas processing facility to the point of supply to a consumer or gas refueller; or
ii: the outlet of the container in which gas is stored to the point of supply to a consumer or gas refueller; but
b: excludes meters.
5: The Governor-General may, by Order in Council made on the recommendation of the Minister, amend Schedule 6
a: adding any pipeline:
b: deleting any pipeline:
c: changing the description of any pipeline or its owner.
6: The Minister may make a recommendation for the purpose of subsection (5) only if the Minister is satisfied that—
a: the Commission has made a recommendation to the same effect; and
b: in the case of a recommendation to add a pipeline, the gas pipeline services are supplied in a market where the owner of the pipeline does not have a substantial degree of market power; and
c: in the case of a recommendation to delete a pipeline, the gas pipeline services are supplied in a market where the owner of the pipeline has a substantial degree of market power; and
d: the Commission has consulted (without necessarily holding an inquiry) with interested parties.
7: An order under subsection (5) is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 55A inserted 14 October 2008 section 4 Commerce Amendment Act 2008 Section 55A(7) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Imposition of regulation under this Part Heading inserted 14 October 2008 section 4 Commerce Amendment Act 2008
55B: Gas pipeline services declared to be regulated
Gas pipeline services are regulated under this Part. Section 55B inserted 14 October 2008 section 4 Commerce Amendment Act 2008
55C: All gas pipeline services are subject to information disclosure regulation
Gas pipeline services are subject to information disclosure regulation under this Part. Section 55C inserted 14 October 2008 section 4 Commerce Amendment Act 2008
55D: All gas pipeline services are subject to price-quality regulation
Gas pipeline services are subject to default/customised price-quality regulation under this Part on and after 1 July 2010. Section 55D inserted 14 October 2008 section 4 Commerce Amendment Act 2008
55E: Commission must make section 52P determination specifying how subpart applies
1: The section 52P
2: The section 52P section 55F
3: The section 52P section 55A(5)﻿(a) Section 55E inserted 14 October 2008 section 4 Commerce Amendment Act 2008
55F: Section 52P determinations setting out first default price-quality paths
1: The Commission must use the processes set out in section 53P section 52P
2: However, if a supplier has increased its weighted average prices by more than the movement, or forecast movement, in the all groups index number of the Consumers
3: The Commission may set a default price-quality path in respect of suppliers of gas pipeline services even if all or any of the relevant input methodologies have not been determined.
4: If an input methodology is published after a section 52P section 53ZB(1)
5: However, the Commission may not exercise its powers in subsection (4) later than 9 months after the date of publication of the input methodology. Section 55F inserted 14 October 2008 section 4 Commerce Amendment Act 2008 Section 55F(2) amended 1 September 2022 section 107(1) Data and Statistics Act 2022 Services controlled by virtue of Commerce (Control of Natural Gas Services) Order 2005 Heading inserted 14 October 2008 section 4 Commerce Amendment Act 2008
55G: Existing order, authorisations, and undertakings continue to apply until 1 July 2012 (or earlier expiry)
1: This section provides how price-quality regulation under this Part applies to services that are controlled by virtue of the Commerce (Control of Natural Gas Services) Order 2005 order
2: The order continues in force, despite the repeal of Part 4 (as it was before its repeal by the Commerce Amendment Act 2008 expiry date
3: The enactment of the Commerce Amendment Act 2008
a: any authorisation made (including the ability to amend or revoke an authorisation), or any undertaking obtained or accepted, under Part 5
b: the power of the Commission to obtain or accept any further undertakings under Part 5
c: any action that may be commenced or continued in respect of a breach of any authorisation or undertaking.
4: To avoid doubt, subsection (3) applies as if the provisions of Parts 4 to 6 Commerce Amendment Act 2008
5: However, any breach of the order after 1 April 2009 may be dealt with under Part 6 Section 55G inserted 14 October 2008 section 4 Commerce Amendment Act 2008
55H: How price-quality regulation under this Part applies after 1 July 2012 (or earlier expiry)
1: This section provides how price-quality regulation under this Part applies to a gas pipeline service after it ceases to be controlled by virtue of the Commerce (Control of Natural Gas Services) Order 2005 order
2: The expiry of the order must be treated as if it were the expiry of a customised price-quality path, and section 53X
3: In this section, the date on which the order expires is—
a: the expiry date referred to in section 55G
b: if an undertaking is obtained or accepted from a supplier in respect of a service that expires on an earlier date, that earlier date, provided that the order ceases to apply to that service on or before that date (by revocation of the order or otherwise). Section 55H inserted 14 October 2008 section 4 Commerce Amendment Act 2008 Interface with Gas Act 1992 Heading inserted 14 October 2008 section 4 Commerce Amendment Act 2008
55I: Impact of certain decisions made under Gas Act 1992
1: The recommending body must advise the Commerce Commission as soon as practicable after making any recommendation for a gas governance regulation or rule under Part 4A
2: The Commission must take into account, before exercising any of its powers under this Part,—
a: any gas governance regulation or rule under Part 4A
b: any guidelines issued by the recommending body of which it is advised under subsection (1) that are likely to be relevant to the powers of the Commerce Commission under this Part:
c: the levy payable by any pipeline owner under the Gas Act 1992
3: The Commission must, if asked by the recommending body to do so, reconsider any section 52P
4: In this section, recommending body section 43D Section 55I inserted 14 October 2008 section 4 Commerce Amendment Act 2008 Savings provisions Heading inserted 14 October 2008 section 4 Commerce Amendment Act 2008
55J: Savings provision until Commission publishes information disclosure requirements
1: The Gas (Information Disclosure) Regulations 1997 section 55E(1)
2: After that, no regulations made under section 55 Section 55J inserted 14 October 2008 section 4 Commerce Amendment Act 2008
55K: Savings provision for existing levy regulations for services controlled under Commerce (Control of Natural Gas Services) Order 2005
1: Any regulations made pursuant to section 74 Commerce (Control of Natural Gas Services) Order 2005 section 53ZE
2: Subsection (1) applies as if—
a: references in those regulations to the Commission's costs include references to the costs of exercising the Commission's powers and performing its duties under this Part, and enforcing the obligations under this Part, in respect of those persons, and with all other necessary modifications; and
b: terms used in subsection (1) have the same meaning as they do in those regulations. Section 55K inserted 14 October 2008 section 4 Commerce Amendment Act 2008
11: Airport services
Subpart 11 replaced 26 October 2018 section 10 Commerce Amendment Act 2018 Overview and interpretation Heading replaced 26 October 2018 section 10 Commerce Amendment Act 2018
56: Overview of subpart
1: This subpart provides that—
a: specified airport services are subject to information disclosure regulation under this Part; and
b: negotiate/arbitrate regulation, default/customised price-quality regulation, or individual price-quality regulation may be imposed on specified airport services after an inquiry; and
c: other services may be declared specified airport services by Order in Council.
2: This section is only a guide. Section 56 replaced 26 October 2018 section 10 Commerce Amendment Act 2018
56A: Interpretation
1: In this subpart,— specified airport company
a: the company (as defined in section 2
b: the company (as defined in section 2
c: the airport company (as defined in section 2 specified airport services
a: aircraft and freight activities:
b: airfield activities:
c: specified passenger terminal activities:
d: any other services declared to be specified airport services by Order in Council made under section 56M
2: In subsection (1), aircraft and freight activities airfield activities specified passenger terminal activities section 2 Section 56A replaced 26 October 2018 section 10 Commerce Amendment Act 2018 Specified airport services regulated under this Part Heading replaced 26 October 2018 section 10 Commerce Amendment Act 2018
56B: Specified airport services declared to be regulated
Specified airport services are regulated under this Part. Section 56B replaced 26 October 2018 section 10 Commerce Amendment Act 2018
56C: Specified airport services subject to information disclosure regulation
Specified airport services are subject to information disclosure regulation under this Part. Section 56C replaced 26 October 2018 section 10 Commerce Amendment Act 2018
56D: Specified airport services subject to additional regulation if imposed by Order in Council
In addition to information disclosure regulation, specified airport services are subject to the type of regulation (if any) imposed by Order in Council made under section 56K Section 56D replaced 26 October 2018 section 10 Commerce Amendment Act 2018 Duty to supply information to Secretary Heading inserted 26 October 2018 section 10 Commerce Amendment Act 2018
56E: Duty to supply information to Secretary
A specified airport company must, as soon as practicable after disclosing information under this Part, supply a copy of the information to the Secretary (as defined in section 2(1) Section 56E replaced 26 October 2018 section 10 Commerce Amendment Act 2018 Commission inquiry into regulation of specified airport services Heading replaced 26 October 2018 section 10 Commerce Amendment Act 2018
56F: How inquiry triggered
1: The Commission—
a: must hold an inquiry into the regulation of specified airport services if required to do so by the Minister; and
b: may hold an inquiry on its own initiative.
2: Any requirement by the Minister must—
a: be in writing; and
b: specify the date by which the Commission must make a recommendation to the Minister under section 56H Section 56F replaced 26 October 2018 section 10 Commerce Amendment Act 2018
56G: Commission inquiry
1: In conducting an inquiry into the regulation of specified airport services, the Commission must consider—
a: whether, in addition to information disclosure regulation, 1 of the following types of regulation should be imposed on the services:
i: negotiate/arbitrate regulation:
ii: default/customised price-quality regulation:
iii: individual price-quality regulation; and
b: if so, how that type of regulation should apply to specified airport companies.
2: As part of the inquiry, the Commission must—
a: determine or amend (and then apply) input methodologies for the supply of the services, in accordance with subpart 3
b: when considering whether a type of regulation might be imposed, assess the benefits of imposing different types of regulation in meeting the purpose of this Part against the costs of imposing those types of regulation.
3: The input methodologies must be determined or amended as soon as practicable after the inquiry is triggered.
4: During an inquiry, the Commission may have regard to any other matters it considers necessary or desirable for the purpose of the inquiry.
5: An inquiry under this section must follow the process set out in section 52J Section 56G replaced 26 October 2018 section 10 Commerce Amendment Act 2018
56H: Commission’s recommendations following inquiry
1: At the end of an inquiry, having considered the matters in section 56G
a: negotiate/arbitrate regulation:
b: default/customised price-quality regulation:
c: individual price-quality regulation.
2: If the Commission recommends imposing a type of regulation specified in subsection (1), its recommendation must state the following:
a: the type of regulation that is recommended:
b: what input methodologies apply:
c: if negotiate/arbitrate regulation is recommended, the material provisions of the negotiation process and arbitration process:
d: if default/customised price-quality regulation is recommended, the default price path and quality standards:
e: if individual price-quality regulation is recommended, the material provisions to apply.
3: The Minister must publish the Commission’s recommendation, and may do so in whatever way the Minister considers appropriate.
4: To avoid doubt, a recommendation by the Commission is not a determination of the Commission. Section 56H inserted 26 October 2018 section 10 Commerce Amendment Act 2018 Order in Council imposing additional type of regulation Heading inserted 26 October 2018 section 10 Commerce Amendment Act 2018
56I: Minister must consider Commission’s recommendation
1: The Minister must consider any recommendation of the Commission made under section 56H
2: When considering the recommendation, the Minister—
a: must consult with the Minister of Transport; and
b: may request further information or advice from the Commission.
3: If the Minister proposes a different type of regulation to the type that the Commission recommends, the Minister must request written advice from the Commission on what the material provisions of a section 52P
4: Any request by the Minister under subsection (3), and the Commission’s advice on it, must be made publicly available.
5: If the Commission receives a request under subsection (3), it may, at its discretion,—
a: consult with interested parties; or
b: reopen its inquiry, in which case section 52J Section 56I inserted 26 October 2018 section 10 Commerce Amendment Act 2018
56J: Minister’s decision and recommendation
1: Having considered the Commission’s recommendation in accordance with section 56I section 56I(3)
a: decide whether, in addition to information disclosure regulation, 1 of the following types of regulation should be imposed on specified airport services:
i: negotiate/arbitrate regulation:
ii: default/customised price-quality regulation:
iii: individual price-quality regulation; and
b: if so, make a recommendation to the Governor-General specifying the type of regulation that should be imposed.
2: The Minister’s decision may be the same as, or different from, the Commission’s recommendation under section 56H
3: If the Minister’s decision is different from the Commission’s recommendation, the Minister must set out the reasons for the decision and make the decision, with the reasons, publicly available. Section 56J inserted 26 October 2018 section 10 Commerce Amendment Act 2018
56K: Order in Council imposing additional type of regulation
1: The Governor-General may, on the recommendation of the Minister made under section 56J
a: negotiate/arbitrate regulation:
b: default/customised price-quality regulation:
c: individual price-quality regulation.
2: The order must include an expiry date (which must be no later than 20 years after the commencement date) at the close of which the order is revoked.
3: Despite subsection (2), the order may be earlier revoked in the manner in which it was made.
4: An order under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 56K inserted 26 October 2018 section 10 Commerce Amendment Act 2018 Section 56K(4) replaced 28 October 2021 section 3 Secondary Legislation Act 2021
56L: Commission determination about how regulation applies
1: As soon as practicable after an Order in Council is made under section 56K section 52P
2: The determination must not differ in any material respect from the recommendation under section 56H section 56I(3) Section 56L inserted 26 October 2018 section 10 Commerce Amendment Act 2018 Declaring services to be specified airport services Heading inserted 26 October 2018 section 10 Commerce Amendment Act 2018
56M: Order in Council declaring specified airport services
1: The Governor-General may, on the recommendation of the Minister, make an Order in Council declaring 1 or more services to be specified airport services for the purposes of this subpart.
2: Before recommending that an Order in Council be made, the Minister must be satisfied that—
a: the Commission has made a recommendation to the same effect; and
b: the Commission has consulted (without necessarily holding an inquiry) with interested parties.
3: Before making a recommendation under subsection (2)﻿(a), the Commission—
a: must assess the benefits, in meeting the purpose of this Part, of declaring the services to be specified airport services against the costs of declaring the services to be specified airport services; and
b: must be satisfied that the services are supplied in a market where 1 or more of the specified airport companies have a substantial degree of market power.
4: An order under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 56M inserted 26 October 2018 section 10 Commerce Amendment Act 2018 Section 56M(4) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Subpart 2 not limited Heading inserted 26 October 2018 section 10 Commerce Amendment Act 2018
56N: Subpart 2 not limited
This subpart does not limit subpart 2 Section 56N inserted 26 October 2018 section 10 Commerce Amendment Act 2018
57: Commission process
Section 57 repealed 14 October 2008 section 4 Commerce Amendment Act 2008
57A: Technical provisions relating to declaration of control
Section 57A repealed 14 October 2008 section 4 Commerce Amendment Act 2008
57B: Records to be kept for control purposes
Section 57B repealed 14 October 2008 section 4 Commerce Amendment Act 2008
57C: Other Acts relating to price control not affected
Section 57C repealed 14 October 2008 section 4 Commerce Amendment Act 2008
57CA: Impact of certain decisions made under Gas Act 1992
Section 57CA repealed 14 October 2008 section 4 Commerce Amendment Act 2008
4A: Provisions applicable to electricity industry
Part 4A repealed 1 April 2009 section 5 Commerce Amendment Act 2008
57D: Interpretation
Section 57D repealed 1 April 2009 section 5 Commerce Amendment Act 2008
57DAA: Meaning of electricity lines business
Section 57DAA repealed 1 April 2009 section 5 Commerce Amendment Act 2008
57DAAB: Meaning of electricity supply business
Section 57DAAB repealed 1 April 2009 section 5 Commerce Amendment Act 2008
57DA: Body that exercises jurisdiction under this Part
Section 57DA repealed 1 April 2009 section 5 Commerce Amendment Act 2008
57DB: Transfer of jurisdiction in respect of Transpower
Section 57DB repealed 1 April 2009 section 5 Commerce Amendment Act 2008
57DC: Transfer of jurisdiction relating to other large electricity lines businesses
Section 57DC repealed 1 April 2009 section 5 Commerce Amendment Act 2008
57DD: Procedure before jurisdiction order can be made
Section 57DD repealed 1 April 2009 section 5 Commerce Amendment Act 2008
57DE: Levies during transition in jurisdiction
Section 57DE repealed 1 April 2009 section 5 Commerce Amendment Act 2008
57DF: Ministerial powers
Section 57DF repealed 1 April 2009 section 5 Commerce Amendment Act 2008
1: Controlled goods or services
Subpart 1 repealed 1 April 2009 section 5 Commerce Amendment Act 2008
57E: Purpose
Section 57E repealed 1 April 2009 section 5 Commerce Amendment Act 2008
57F: Commission, not Minister, may declare that goods or services supplied by large electricity lines businesses are controlled
Section 57F repealed 1 April 2009 section 5 Commerce Amendment Act 2008
57G: Thresholds for declaration of control
Section 57G repealed 1 April 2009 section 5 Commerce Amendment Act 2008
57GA: Incorporation by reference of material in thresholds
Section 57GA repealed 1 April 2009 section 5 Commerce Amendment Act 2008
57GB: Effect of amendments to, or replacement of, material incorporated by reference in thresholds
Section 57GB repealed 1 April 2009 section 5 Commerce Amendment Act 2008
57GC: Amendments to, or replacement of, material incorporated by reference to be of same general character as original material
Section 57GC repealed 1 April 2009 section 5 Commerce Amendment Act 2008
57GD: Proof of material incorporated by reference
Section 57GD repealed 1 April 2009 section 5 Commerce Amendment Act 2008
57GE: Effect of expiry of material incorporated by reference
Section 57GE repealed 1 April 2009 section 5 Commerce Amendment Act 2008
57GF: Requirement to consult
Section 57GF repealed 1 April 2009 section 5 Commerce Amendment Act 2008
57GG: Access to material incorporated by reference
Section 57GG repealed 1 April 2009 section 5 Commerce Amendment Act 2008
57H: Process for making decisions on declaration of control
Section 57H repealed 1 April 2009 section 5 Commerce Amendment Act 2008
57I: Process before declaration made
Section 57I repealed 1 April 2009 section 5 Commerce Amendment Act 2008
57J: Effect of declaration of control
Section 57J repealed 1 April 2009 section 5 Commerce Amendment Act 2008
57K: Priorities
Section 57K repealed 1 April 2009 section 5 Commerce Amendment Act 2008
57L: Maximum of 5 years for duration of declaration
Section 57L repealed 1 April 2009 section 5 Commerce Amendment Act 2008
57M: Authorisations and undertakings
Section 57M repealed 1 April 2009 section 5 Commerce Amendment Act 2008
57MA: Impact of certain decisions made under Electricity Act 1992
Section 57MA repealed 1 April 2009 section 5 Commerce Amendment Act 2008
57N: Commission may lift control
Section 57N repealed 1 April 2009 section 5 Commerce Amendment Act 2008
2: Transpower's pricing methodology
Subpart 2 repealed 18 October 2004 section 10(1) Commerce Amendment Act (No 2) 2004
57O: Commission may be required to authorise Transpower's pricing methodology
Section 57O repealed 18 October 2004 section 10(1) Commerce Amendment Act (No 2) 2004
57P: Authorisations in respect of Transpower's pricing methodology
Section 57P repealed 18 October 2004 section 10(1) Commerce Amendment Act (No 2) 2004
57Q: Authorisations and undertakings
Section 57Q repealed 18 October 2004 section 10(1) Commerce Amendment Act (No 2) 2004
57R: Enforcement of authorisations
Section 57R repealed 18 October 2004 section 10(1) Commerce Amendment Act (No 2) 2004
57S: Revocation of authorisations
Section 57S repealed 18 October 2004 section 10(1) Commerce Amendment Act (No 2) 2004
3: Information disclosure
Subpart 3 repealed 1 April 2009 section 5 Commerce Amendment Act 2008
57T: Information disclosure
Section 57T repealed 1 April 2009 section 5 Commerce Amendment Act 2008
57U: Information to be supplied to Commerce Commission
Section 57U repealed 1 April 2009 section 5 Commerce Amendment Act 2008
57V: Commerce Commission to publish summaries
Section 57V repealed 1 April 2009 section 5 Commerce Amendment Act 2008
57W: Reasonable charge may be imposed for providing copies of statements
Section 57W repealed 1 April 2009 section 5 Commerce Amendment Act 2008
4: Asset valuations
Subpart 4 repealed 1 April 2009 section 5 Commerce Amendment Act 2008 Recalibration of asset values of large electricity line owners Heading repealed 18 October 2004 section 11(1) Commerce Amendment Act (No 2) 2004
57X: Purpose of recalibrations
Section 57X repealed 18 October 2004 section 11(1) Commerce Amendment Act (No 2) 2004
57Y: Interpretation
Section 57Y repealed 18 October 2004 section 11(1) Commerce Amendment Act (No 2) 2004
57Z: Large electricity line owners must supply valuation to Commerce Commission
Section 57Z repealed 18 October 2004 section 11(1) Commerce Amendment Act (No 2) 2004
57ZA: Comprehensive audit of asset values of large electricity line owners
Section 57ZA repealed 18 October 2004 section 11(1) Commerce Amendment Act (No 2) 2004
57ZB: Procedure after audit of asset values carried out
Section 57ZB repealed 18 October 2004 section 11(1) Commerce Amendment Act (No 2) 2004
57ZC: Outcome of audit of asset values
Section 57ZC repealed 18 October 2004 section 11(1) Commerce Amendment Act (No 2) 2004 Review of valuation methodologies Heading repealed 1 April 2009 section 5 Commerce Amendment Act 2008
57ZD: Review of valuation methodologies
Section 57ZD repealed 1 April 2009 section 5 Commerce Amendment Act 2008
57ZE: Process when carrying out review of valuation methodologies
Section 57ZE repealed 1 April 2009 section 5 Commerce Amendment Act 2008
5: General provisions
Subpart 5 repealed 1 April 2009 section 5 Commerce Amendment Act 2008
57ZF: Powers of Commission
Section 57ZF repealed 1 April 2009 section 5 Commerce Amendment Act 2008
57ZG: Powers of entry and inspection
Section 57ZG repealed 1 April 2009 section 5 Commerce Amendment Act 2008
57ZH: Authorised persons to prove identity
Section 57ZH repealed 1 April 2009 section 5 Commerce Amendment Act 2008
57ZI: Offence to obstruct authorised persons
Section 57ZI repealed 1 April 2009 section 5 Commerce Amendment Act 2008
57ZJ: Other offences
Section 57ZJ repealed 1 April 2009 section 5 Commerce Amendment Act 2008
57ZK: Levy of electricity lines businesses
Section 57ZK repealed 1 April 2009 section 5 Commerce Amendment Act 2008
5: Authorisations and clearances
Restrictive trade practices
58: Commission may grant authorisation for restrictive trade practices
1: A person who wishes to enter into a contract or arrangement, or arrive at an understanding, to which that person considers section 27
2: A person who wishes to give effect to a provision of a contract or arrangement or understanding to which that person considers section 27
3: A person who wishes to require the giving of, or to give, a covenant to which that person considers section 28
4: A person who wishes to carry out or enforce a covenant to which that person considers section 28
5:
6:
6A: A person who wishes to engage in conduct to which that person considers section 36 36A
6B: A person who wishes to enter into a contract or an arrangement, or arrive at an understanding, that contains a provision that is, or might be, a cartel provision may apply to the Commission for an authorisation to do so, and the Commission may grant an authorisation for that person to enter into the contract or arrangement, or arrive at the understanding.
6C: A person who wishes to give, or require the giving of, a covenant that contains a provision that is, or might be, a cartel provision may apply to the Commission for an authorisation to do so, and the Commission may grant an authorisation for that person to give, or require the giving of, the covenant.
6D: A person who wishes to give effect to a provision of a contract, arrangement, understanding, or covenant that is, or might be, a cartel provision may apply to the Commission for an authorisation to do so, and the Commission may grant an authorisation for that person to give effect to that provision.
7: A person who wishes to engage in the practice of resale price maintenance to which that person considers section 37
8: A person who wishes to do an act to which that person considers section 38 Section 58 substituted 1 July 1990 section 19 Commerce Amendment Act 1990 Section 58(6A) inserted 5 April 2023 section 24 Commerce Amendment Act 2022 Section 58(6B) inserted 5 April 2023 section 24 Commerce Amendment Act 2022 Section 58(6C) inserted 5 April 2023 section 24 Commerce Amendment Act 2022 Section 58(6D) inserted 5 April 2023 section 24 Commerce Amendment Act 2022 Section 58(5) repealed 15 August 2017 section 32(2)﻿(a) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 58(6) repealed 15 August 2017 section 32(2)﻿(a) Commerce (Cartels and Other Matters) Amendment Act 2017
58A: Effect of authorisation
1: While an authorisation under section 58(1) section 27 30 30C 36 36A
a: entering into, or in accordance with the authorisation, giving effect to or enforcing any provision of the contract to which the authorisation relates; or
b: entering into, or in accordance with the authorisation, giving effect to the arrangement to which the authorisation relates; or
c: arriving at, or in accordance with the authorisation, giving effect to the understanding to which the authorisation relates.
2: While an authorisation under section 58(2) section 27 30 30C 36 36A
a: in accordance with the authorisation, giving effect to or enforcing the contract to which the authorisation relates; or
b: in accordance with the authorisation, giving effect to the arrangement or understanding.
3: While an authorisation under section 58(3) section 28 30 30C 36 36A
a: requiring the giving of, or giving, the covenant to which the authorisation relates; or
b: carrying out or enforcing the terms of the covenant to which the authorisation relates in accordance with the authorisation.
4: While an authorisation under section 58(4) section 28 30 30C 36 36A
4A: While an authorisation under section 58(6A) section 27 28 30 30C 36 36A 37 38
4B: While an authorisation under section 58(6B) section 27 30 30C 36 36A
a: entering into the contract or arrangement, or arriving at the understanding, to which the authorisation relates; or
b: in accordance with the authorisation, giving effect to any cartel provision in the contract, arrangement, or understanding to which the authorisation relates.
4C: While an authorisation under section 58(6C) section 28 30 30C 36 36A
a: giving, or requiring the giving of, the covenant to which the authorisation relates; or
b: giving effect to any cartel provision of the covenant to which the authorisation relates in accordance with the authorisation.
4D: While an authorisation under section 58(6D) section 27 28 30 30C 36 36A
5: While an authorisation under section 58(7) section 36 36A 37
6: While an authorisation under section 58(8) section 36 36A 38 Section 58A inserted 1 July 1990 section 19 Commerce Amendment Act 1990 Section 58A(1) amended 5 April 2023 section 25(1) Commerce Amendment Act 2022 Section 58A(1) amended 15 August 2017 section 12(1) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 58A(2) amended 5 April 2023 section 25(1) Commerce Amendment Act 2022 Section 58A(2) amended 15 August 2017 section 12(2) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 58A(3) amended 5 April 2023 section 25(2) Commerce Amendment Act 2022 Section 58A(4) amended 5 April 2023 section 25(3) Commerce Amendment Act 2022 Section 58A(4A) inserted 5 April 2023 section 25(4) Commerce Amendment Act 2022 Section 58A(4B) inserted 5 April 2023 section 25(4) Commerce Amendment Act 2022 Section 58A(4C) inserted 5 April 2023 section 25(4) Commerce Amendment Act 2022 Section 58A(4D) inserted 5 April 2023 section 25(4) Commerce Amendment Act 2022 Section 58A(5) amended 5 April 2023 section 25(5) Commerce Amendment Act 2022 Section 58A(6) amended 5 April 2023 section 25(6) Commerce Amendment Act 2022
58B: Additional provisions relating to authorisations
1: An authorisation granted to a person under section 58 has effect as if it were also an authorisation in the same terms to every other person named or referred to in the application for the authorisation as—
a: a party to the contract, arrangement, understanding, conduct, practice, or act to which the application relates; or
b: a person who is or would be bound by, or entitled to the benefit of, the covenant to which the application relates.
2: An authorisation granted to a person under section 58
a: in the case of an authorisation to enter into a contract or arrangement or arrive at an understanding, becomes a party to the proposed contract or arrangement at a time after it is entered into or becomes a party to the proposed understanding at a time after it is arrived at:
b: in the case of an authorisation to give effect to a provision of a contract, arrangement, understanding, or covenant understanding, or covenant
c: in the case of an authorisation to require the giving of, or to give, a covenant, becomes bound by, or entitled to the benefit of, the covenant at a time after the covenant is given:
d: in the case of an authorisation to carry out or enforce the terms of a covenant, becomes bound by, or entitled to the benefit of, the covenant at a time after the authorisation is granted. Section 58B inserted 1 July 1990 section 19 Commerce Amendment Act 1990 Section 58B(1) replaced 5 April 2023 section 26(1) Commerce Amendment Act 2022 Section 58B(2)﻿(b) amended 5 April 2023 section 26(2) Commerce Amendment Act 2022
59: Contracts or covenants subject to authorisation not prohibited under certain conditions
1: Despite anything in this Act, but subject to section 59B
a: a contract to which section 27 or 30(1)﻿(a)
aa: a contract the entry into which is, or the giving effect to a provision of which would be, conduct to which section 36 36A
b: a covenant to which section 28 or 30(1)﻿(ab)
c: a covenant the requiring of the giving of which, or the giving of which, is conduct to which section 36 36A
2: For the purposes of subsection (1), the requirements that must be met are,—
a: in the case of a contract described in subsection (1)﻿(a)
aa: in the case of a contract described in subsection (1)﻿(aa), that the contract is subject to a condition that the contract does not come into force unless and until authorisation is granted to engage in the conduct to which section 36 36A
b: in the case of a covenant described in subsection (1)﻿(b) or (c) , or to engage in the conduct to which section 36 36A
3: The condition referred to in subsection (2)﻿(a), (aa), or (b) may provide for the provision or the contract to come into force, or the covenant to have effect, as the case may be, on the basis of an interim authorisation being granted under section 65AAA
a: the interim authorisation ceases to be in force; and
b: the authorisation under section 58 Section 59 substituted 26 May 2001 section 13 Commerce Amendment Act 2001 Section 59(1)﻿(a) amended 5 April 2023 section 27(1) Commerce Amendment Act 2022 Section 59(1)﻿(a) amended 15 August 2017 section 32(2)﻿(a) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 59(1)﻿(aa) inserted 5 April 2023 section 27(2) Commerce Amendment Act 2022 Section 59(1)﻿(b) amended 5 April 2023 section 27(3) Commerce Amendment Act 2022 Section 59(1)﻿(c) inserted 5 April 2023 section 27(4) Commerce Amendment Act 2022 Section 59(2)﻿(a) replaced 15 August 2017 section 32(2)﻿(a) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 59(2)﻿(a) amended 5 April 2023 section 27(5) Commerce Amendment Act 2022 Section 59(2)﻿(aa) inserted 5 April 2023 section 27(6) Commerce Amendment Act 2022 Section 59(2)﻿(b) amended 5 April 2023 section 27(7)﻿(a) Commerce Amendment Act 2022 Section 59(2)﻿(b) amended 5 April 2023 section 27(7)﻿(b) Commerce Amendment Act 2022 Section 59(3) replaced 5 April 2023 section 27(9) Commerce Amendment Act 2022
59A: When Commission may grant authorisation
1: The Commission may grant an authorisation to a person—
a: to enter into a contract or arrangement, or to arrive at an understanding, even though the contract or arrangement has been entered into, or the understanding has been arrived at, before the Commission makes a determination in respect of the application for that authorisation; or
b: to give effect to a provision of a contract or arrangement entered into, or an understanding arrived at, or a covenant given,
c: to require the giving of, or to give, a covenant even though the covenant has been given before the Commission makes a determination in respect of the application for that authorisation; or
d: to do an act or engage in conduct referred to in section 37 section 38
2:
3: Section 59A inserted 26 May 2001 section 13 Commerce Amendment Act 2001 Section 59A(1)﻿(b) amended 5 April 2023 section 28 Commerce Amendment Act 2022 Section 59A(2) repealed 15 August 2017 section 13 Commerce (Cartels and Other Matters) Amendment Act 2017 Section 59A(3) repealed 15 August 2017 section 13 Commerce (Cartels and Other Matters) Amendment Act 2017
59B: Contraventions not prevented by granting of authorisation under section 59 or section 59A
Nothing in section 59 section 59A Section 59B inserted 26 May 2001 section 13 Commerce Amendment Act 2001
60: Procedure for applications for authorisation of restrictive trade practices
1: Every application for an authorisation under section 58
2: On receipt of an application that complies with subsection (1), the Commission shall forthwith—
a: record the application in the register to be kept by the Commission for the purpose:
b: give written notice of the date of registration to the person by or on whose behalf the application was made:
c: give notice of the application to any other person who, in the Commission's opinion, is likely to have an interest in the application:
d: give public notice of the application in such manner as the Commission thinks fit.
3: Any person who has an interest in any application in respect of which a notice is given under subsection (2)﻿(d) may give written notice to the Commission of that person's interest and the reason therefor.
3A: In relation to any application, the Commission may consult with any person who, in the opinion of the Commission, is able to assist it to determine the application.
4: On receipt of an application that does not comply with subsection (1), the Commission may, at its discretion, either—
a: accept the application and take the steps referred to in subsection (2) in respect of that application; or
b: return the application to the person by or on whose behalf it was made; or
c: decline to register the application until it complies with subsection (1).
5: Where the Commission declines to register an application under subsection (4)﻿(c), it shall forthwith notify the person by or on whose behalf the application was made.
6: The person making the application under subsection (1), and any person on whose behalf it was made, and any person to whom the application relates, shall from time to time produce, or, as the case may be, furnish to the Commission, within such time as it may specify, such further documents or information in relation to the application as may be required by the Commission for the purpose of enabling it to exercise its functions under this Part.
7: Notwithstanding anything in subsection (2) or subsection (4), where the Commission is of the opinion that the matters to which an application relates are, for reasons other than arising from the application of any provision of this Act, unlikely to be proceeded with, the Commission may, in its discretion, return the application to the person by or on whose behalf the application was made.
8: Any person who has made an application to the Commission for an authorisation may, at any time, by notice in writing to the Commission, withdraw the application. 1975 No 113 s 70; 1983 No 144 s 26; Trade Practices Act 1974 s 89(1), (2) (Aust) Section 60(3A) inserted 15 August 2017 section 14 Commerce (Cartels and Other Matters) Amendment Act 2017
61: Determination of applications for authorisation of restrictive trade practices
1: The Commission must section 58
a: granting such authorisation as it considers appropriate:
b: declining the application.
1A: If authorisation is not granted within 120 working days after the date on which the application is registered, the Commission is deemed to have declined the application, subject to any alternative timetable agreed between the Commission and the applicant.
2: Any authorisation granted pursuant to section 58
3: The Commission must
4: The Commission must
5: Before making a determination in respect of an application for an authorisation, the Commission must section 62
6: The Commission must relating to an application under section 58(1) to (6A)
a: the entering into of the contract or arrangement or the arriving at the understanding; or
b: the giving effect to the provision of the contract, arrangement or understanding; or
c: the giving or the requiring of the giving of the covenant; or
d: the carrying out or enforcing of the terms of the covenant; or
e: engaging in the conduct— as the case may be, to which the application relates, will in all the circumstances result, or be likely to result, in a benefit to the public which would outweigh the lessening in competition that would result, or would be likely to result
6A: For the purposes of subsection (6), a lessening in competition includes a lessening in competition that is not substantial.
7:
8: The Commission must not make a determination granting an authorisation relating to an application under section 58(6B) to (8)
a: entry into the contract or arrangement, or arriving at the understanding:
b: giving, or requiring the giving of, the covenant:
c: giving effect to the provision of the contract, arrangement, understanding, or covenant:
d: engaging in the practice of resale price maintenance:
e: the act or conduct.
9: For the purposes of section 58(6B) to (6D) Trade Practices Act 1974 s 90(1), (2), (4), (5), (6), (7), (8) (Aust) Section 61(1A) inserted 15 August 2017 section 15(1) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 61(1) amended 5 April 2023 section 29(1) Commerce Amendment Act 2022 Section 61(3) amended 5 April 2023 section 29(1) Commerce Amendment Act 2022 Section 61(4) amended 5 April 2023 section 29(1) Commerce Amendment Act 2022 Section 61(5) amended 5 April 2023 section 29(1) Commerce Amendment Act 2022 Section 61(6) amended 5 April 2023 section 29(1) Commerce Amendment Act 2022 Section 61(6) amended 5 April 2023 section 29(2) Commerce Amendment Act 2022 Section 61(6) amended 15 August 2017 section 15(2) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 61(6)﻿(d) amended 5 April 2023 section 29(3) Commerce Amendment Act 2022 Section 61(6)﻿(e) inserted 5 April 2023 section 29(4) Commerce Amendment Act 2022 Section 61(6A) inserted 2 September 1996 Commerce Amendment Act 1996 Section 61(7) repealed 15 August 2017 section 32(2)﻿(a) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 61(8) replaced 5 April 2023 section 29(5) Commerce Amendment Act 2022 Section 61(9) inserted 5 April 2023 section 29(5) Commerce Amendment Act 2022
62: Commission to prepare draft determination in relation to restrictive trade practices
1: Before determining an application for an authorisation under section 58
2: The Commission shall send a copy of the draft determination and a summary of the reasons therefor to—
a: the applicant:
b: any person to whom a notice has been given pursuant to section 60(2)﻿(c)
c: any person who has given a notice pursuant to section 60(3)
d: any other person who in the opinion of the Commission may assist the Commission in its determination of the application.
3:
4:
5:
6: Before determining the application, the Commission may determine to hold a conference and, if so,
7: Where the Commission is of the opinion that 2 or more applications for authorisations that are made by the same person, or by bodies corporate that are interconnected with each other, involve the same or substantially similar issues, the Commission may treat the applications as if they constitute a single application, and may prepare a single draft determination in relation to the applications and , if appropriate, Trade Practices Act 1974 s 90A(1), (2), (5), (6), (13) (Aust) Section 62(3) repealed 15 August 2017 section 16(1) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 62(4) repealed 15 August 2017 section 16(1) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 62(5) repealed 15 August 2017 section 16(1) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 62(6) substituted 14 October 2008 section 58 section 6(1) Commerce Amendment Act 2008 Section 62(6) amended 15 August 2017 section 16(2) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 62(7) amended 15 August 2017 section 16(3) Commerce (Cartels and Other Matters) Amendment Act 2017
63: Commission may grant provisional authorisation
Section 63 repealed 1 July 1990 section 22 Commerce Amendment Act 1990
64: Procedure at conference
1: At every conference called under section 62
a: the Commission shall be represented by a member or members nominated by the chairperson
b: each person to whom a draft determination was sent under section 62(2)
c: a person participating in the conference in accordance with paragraph (b) is entitled to have another person or other persons present to assist him:
d: no other person is entitled to be present.
2: The Commission may require any employee of the Commission section 62 employee
3: At every conference called under section 62
4: The Commission shall cause such record of the conference to be made as is sufficient to set out the matters raised by the persons participating in the conference.
5: Any member of the Commission attending the conference may terminate the conference when that member is of the opinion that a reasonable opportunity has been given for the expression of the views of persons participating in the conference.
6: The Commission shall have regard to all matters raised at the conference, and may at any time after the termination of the conference make a determination in respect of the application. Trade Practices Act 1974 s 90A(7), (8), (9), (11) (Aust) Section 64(1)﻿(a) amended 25 January 2005 section 200 Crown Entities Act 2004 Section 64(2) amended 25 January 2005 section 200 Crown Entities Act 2004
65: Commission may vary or revoke authorisations
1: Subject to subsection (2), if at any time after the Commission has granted an authorisation under section 58
a: the authorisation was granted on information that was false or misleading in a material particular; or
b: there has been a material change of circumstances since the authorisation was granted; or
c: a condition upon which the authorisation was granted has not been complied with,— the Commission may revoke or amend the authorisation or revoke the authorisation and grant a further authorisation in substitution for it.
2: The Commission shall not revoke or amend an authorisation or revoke an authorisation and substitute a further authorisation pursuant to subsection (1) unless the person to whom the authorisation was granted and any other person who in the opinion of the Commission is likely to have an interest in the matter is given a reasonable opportunity to make submissions to the Commission and the Commission has regard to those submissions. Trade Practices Act 1974 s 91(4) (Aust) Section 65(1)﻿(c) amended 15 August 2017 section 32(2)﻿(d) Commerce (Cartels and Other Matters) Amendment Act 2017
65AAA: Commission may grant interim authorisation
1: The Commission may make a determination in writing granting an interim authorisation for an application under section 58
2: The Commission is not required to comply with section 61(5) to (9)
3: For the purposes of this section, a reference in any of sections 58A 58B 59A 59B 61(2) 65 92 104 105 106(10)
4: An interim authorisation remains in force until—
a: the applicant withdraws its application for an authorisation; or
b: the Commission revokes the interim authorisation under section 65
c: the Commission declines or grants the application for an authorisation under section 58
5: Subsection (4) does not limit the Commission’s ability to grant an interim authorisation for such period as the Commission sees fit. Section 65AAA inserted 5 May 2022 section 30 Commerce Amendment Act 2022
65AA: Applications during epidemic period
Section 65AA repealed 20 April 2023 section 65AE
65AB: Modifications in relation to application under section 65AA
Section 65AB repealed 20 April 2023 section 65AE
65AC: Modifications in relation to certain applications made during epidemic period
Section 65AC repealed 20 April 2023 section 65AE
65AD: Provisional authorisations for certain applications made during epidemic period
Section 65AD repealed 20 April 2023 section 65AE
65AE: Repeal of sections 65AA to 65AE
2023-04-20 Commerce Act 1986 Sections 65AA to 65AE are repealed six months after the expiry or revocation of the Epidemic Preparedness (COVID-19) Notice 2020 (gazette notice 2020-go1368), which was renewed on 20 October 2022 (by https://gazette.govt.nz/notice/id/2022-sl3849)). UNLESS an earlier expiry or revocation date is notified; OR the notice is further renewed (under section 7 of the Epidemic Preparedness Act 2006)) Section 65AE repealed 20 April 2023 section 65AE
65A: Commission may give clearances relating to cartel provisions
1: A person who proposes to do any of the following may apply to the Commission for a clearance under this section:
a: enter into a contract or an arrangement that contains, or may contain, a cartel provision:
b: arrive at an understanding that contains, or may contain, a cartel provision:
c: give, or require the giving of, a covenant that contains, or may contain, a cartel provision.
2: The Commission must give a clearance under this section if it is satisfied that—
a: the applicant and any other party to the proposed contract, arrangement, understanding, or covenant
b: every cartel provision in the contract, arrangement, understanding, or covenant
c: the following will not have, or would not be likely to have, the effect of substantially lessening competition in a market:
i: entering into the contract or arrangement:
ii: arriving at the understanding:
iii: giving, or requiring the giving of, the covenant:
iv: giving effect to any provision of the contract, arrangement, understanding, or covenant.
3: For the purpose of subsection (2), it is not necessary for the Commission to determine whether a particular provision is in fact a cartel provision, providing there are reasonable grounds for believing it might be.
4: If clearance is not given within 30 working days after the date on which the application is registered in accordance with section 60(2)﻿(a) Section 65A inserted 15 August 2017 section 17 Commerce (Cartels and Other Matters) Amendment Act 2017 Section 65A(1) replaced 5 April 2023 section 33(1) Commerce Amendment Act 2022 Section 65A(2)﻿(a) amended 5 April 2023 section 33(2) Commerce Amendment Act 2022 Section 65A(2)﻿(b) amended 5 April 2023 section 33(2) Commerce Amendment Act 2022 Section 65A(2)﻿(c) replaced 5 April 2023 section 33(3) Commerce Amendment Act 2022
65B: Effect of clearance under section 65A
The effect of a clearance given under section 65A
a: a party to the contract, arrangement, understanding, or covenant section 27 28 30 36 36A , or giving, or requiring the giving of, the covenant
b: a person does not contravene section 27 28 30 36 36A understanding, or covenant
c: section 30C(1) understanding, or covenant Section 65B inserted 15 August 2017 section 17 Commerce (Cartels and Other Matters) Amendment Act 2017 Section 65B(a) amended 5 April 2023 section 34(1) Commerce Amendment Act 2022 Section 65B(a) amended 5 April 2023 section 34(2) Commerce Amendment Act 2022 Section 65B(a) amended 5 April 2023 section 34(3) Commerce Amendment Act 2022 Section 65B(b) amended 5 April 2023 section 34(1) Commerce Amendment Act 2022 Section 65B(b) amended 5 April 2023 section 34(2) Commerce Amendment Act 2022 Section 65B(c) amended 5 April 2023 section 34(1) Commerce Amendment Act 2022
65C: Procedures relating to clearances
1: Section 60 section 65A section 58
2: Every clearance given under section 65A Section 65C inserted 15 August 2017 section 17 Commerce (Cartels and Other Matters) Amendment Act 2017
65D: Revocation of clearances
1: The Commission may revoke a clearance given under section 65A
a: the clearance was given on information that was false or misleading in a material particular; or
b: there has been a material change of circumstances.
2: The Commission must not revoke a clearance unless the person to whom the clearance was given, and any other person who in the opinion of the Commission is likely to have an interest in the matter, is given a reasonable opportunity to make submissions to the Commission and the Commission has had regard to those submissions. Section 65D inserted 15 August 2017 section 17 Commerce (Cartels and Other Matters) Amendment Act 2017 Business acquisitions Heading substituted 1 January 1991 section 23 Commerce Amendment Act 1990
66: Commission may give clearances for business acquisitions
1: A person who proposes to acquire assets of a business or shares may give the Commission a notice seeking clearance for the acquisition.
2: Subsections (1), (2)﻿(a) and (b), (4), and (5) of section 60 section 58
3: Within 40 working days
a: if it is satisfied that the acquisition will not have, or would not
b: if it is not satisfied that the acquisition will not have, or would not
4: If the period specified in subsection (3) expires without the Commission having given a clearance for the acquisition and without having given a notice under subsection (3)﻿(b), the Commission shall be deemed to have declined to give a clearance for the acquisition.
5: A clearance given under subsection (3) expires—
a: 12 months after the date on which it was given; or
b: in the event of an appeal being made against the determination of the Commission giving the clearance, and the determination being confirmed by the court, 12 months after the date on which the determination is confirmed. Section 66 substituted 1 January 1991 section 23 Commerce Amendment Act 1990 Section 66(3) amended 15 August 2017 section 18 Commerce (Cartels and Other Matters) Amendment Act 2017 Section 66(3)﻿(a) amended 15 December 2005 section 3(1) Commerce Amendment Act (No 2) 2005 Section 66(3)﻿(a) amended 26 May 2001 section 11(2) Commerce Amendment Act 2001 Section 66(3)﻿(b) amended 15 December 2005 section 3(2) Commerce Amendment Act (No 2) 2005 Section 66(3)﻿(b) amended 26 May 2001 section 11(2) Commerce Amendment Act 2001
67: Commission may grant authorisations for business acquisitions
1: A person who proposes to acquire assets of a business or shares may give the Commission a notice seeking an authorisation for the acquisition.
2: Subsections (1), (2)﻿(a) and (b), (4), and (5) of section 60 section 58
3: Within 60 working days after the date of registration of the notice, or such longer period as the Commission and the person who gave the notice agree, the Commission shall—
a: if it is satisfied that the acquisition will not have, or would not
b: if it is satisfied that the acquisition will result, or will be likely to result, in such a benefit to the public that it should be permitted, by notice in writing to the person by or on whose behalf the notice was given, grant an authorisation for the acquisition; or
c: if it is not satisfied as to the matters referred to in paragraph (a) or paragraph (b), by notice in writing to the person by or on whose behalf the notice was given, decline to give a clearance or grant an authorisation for the acquisition.
4: If the period specified in subsection (3) expires without the Commission having given a clearance or having granted an authorisation or having declined to do so, the Commission shall be deemed to have declined to give a clearance or grant an authorisation.
5: The Commission shall state in writing its reasons for a determination made by it under subsection (3).
6: A clearance given or an authorisation granted under subsection (3) expires—
a: 12 months after the date on which it was given or granted; or
b: in the event of an appeal being made against the determination of the Commission giving the clearance or granting the authorisation, and the determination of the Commission being confirmed by the court, 12 months after the date on which the determination is confirmed. Section 67 substituted 1 January 1991 section 23 Commerce Amendment Act 1990 Section 67(3)﻿(a) amended 15 December 2005 section 4 Commerce Amendment Act (No 2) 2005 Section 67(3)﻿(a) amended 26 May 2001 section 11(2) Commerce Amendment Act 2001
68: Provisions applying to applications for clearances and authorisations for business acquisitions
1: Every person who gives a notice under section 66 section 67 section 66 section 67
2: Notwithstanding section 66 section 67
3: The Commission shall state in writing its reasons for declining to give a clearance or grant an authorisation under subsection (2).
4: A person who has given a notice in respect of an acquisition under section 66 section 67
5: The Commission may consult with any person who, in the opinion of the Commission, is able to assist it in making a determination under section 66 section 67 Section 68 substituted 1 January 1991 section 23 Commerce Amendment Act 1990
69: Effect of clearance or authorisation
Nothing in section 27 36 36A 47 47A Section 69 substituted 1 January 1991 section 23 Commerce Amendment Act 1990 Section 69 amended 5 April 2023 section 35 Commerce Amendment Act 2022 Section 69 amended 15 August 2017 section 19 Commerce (Cartels and Other Matters) Amendment Act 2017
69A: Commission may accept undertakings
1: In giving a clearance or granting an authorisation under section 66 section 67 section 66(1) section 67(1)
2: The Commission shall not accept an undertaking in relation to the giving of a clearance or the granting of an authorisation under section 66 section 67
3: An undertaking given to the Commission under subsection (1) is deemed to form part of the clearance given or the authorisation granted in relation to the acquisition to which the undertaking relates.
4: This section overrides section 74A Section 69A inserted 1 January 1991 section 23 Commerce Amendment Act 1990 Section 69A(4) inserted 26 October 2018 section 11 Commerce Amendment Act 2018
69AB: Authorisation or clearance void if undertaking contravened
1: If a person contravenes an undertaking accepted under section 69A
2: Subsection (1) does not prevent the court from making an order under sections 85A to 85C Section 69AB inserted 14 October 2008 section 69A section 66 67 section 7(1) Commerce Amendment Act 2008
69AC: Variation of undertaking
1: The Commission may, on an application made under subsection (2), accept a variation of an undertaking given under section 69A
2: An application for a variation under subsection (1)—
a: may be made only by the person who gave the undertaking or on whose behalf the undertaking was given; and
b: must be made no later than 20 working days before the date on which the relevant obligation under the undertaking must be met.
3: The Commission must notify the person who made the application of its decision on the application no later than 3 working days before the relevant obligation under the undertaking must be met.
4: A variation under subsection (1)—
a: comes into force on a date specified in the variation (being a date that is on or after the date on which the variation is accepted); and
b: is deemed to form part of the undertaking (and, accordingly, is deemed under section 69A(3) Section 69AC inserted 14 October 2008 section 69A section 7(1) Commerce Amendment Act 2008
69B: Conferences in relation to business acquisitions
1: Before making a determination under section 66(3) section 67(3)
2: The provisions of section 64
a: every reference in that section to a conference called under section 62
b: the reference in subsection (1)﻿(b) of that section to a person to whom a draft determination was sent under section 62(2) section 66(1) section 67(1)
c: the reference in subsection (6) of that section to a determination in respect of an application, were a reference to a determination under section 66(3) section 67(3) Section 69B inserted 1 January 1991 section 23 Commerce Amendment Act 1990 Authorisations in respect of controlled goods or services Heading repealed 14 October 2008 section 8 Commerce Amendment Act 2008
70: Authorisations in respect of prices, revenues, and quality standards
Section 70 repealed 14 October 2008 section 8 Commerce Amendment Act 2008
70A: Considerations to be observed by Commission
Section 70A repealed 14 October 2008 section 8 Commerce Amendment Act 2008
70B: Procedure for making authorisations
Section 70B repealed 14 October 2008 section 8 Commerce Amendment Act 2008
70C: Remedies and penalties if overcharging or quality standards breached
Section 70C repealed 14 October 2008 section 8 Commerce Amendment Act 2008
70D: Terms of authorisations
Section 70D repealed 14 October 2008 section 8 Commerce Amendment Act 2008
70E: Investigations and audits
Section 70E repealed 14 October 2008 section 8 Commerce Amendment Act 2008
70F: Revocation and amendment of authorisations
Section 70F repealed 14 October 2008 section 8 Commerce Amendment Act 2008
71: Provisional authorisations
Section 71 repealed 14 October 2008 section 8 Commerce Amendment Act 2008
72: Alternative undertakings
Section 72 repealed 14 October 2008 section 8 Commerce Amendment Act 2008
73: Conferences in relation to authorisations about controlled goods or services
Section 73 repealed 14 October 2008 section 8 Commerce Amendment Act 2008
74: Levies
Section 74 repealed 14 October 2008 section 8 Commerce Amendment Act 2008
6: Enforcement, remedies, and appeals
Power to accept undertakings Heading replaced 26 October 2018 section 12 Commerce Amendment Act 2018
74AA: Commission may accept undertakings
Section 74AA repealed 26 October 2018 section 12 Commerce Amendment Act 2018
74A: Commission may accept undertakings
1: The Commission may accept a written undertaking given by, or on behalf of, a person in connection with any matter relating to the enforcement of this Act.
2: The person may withdraw or vary the undertaking with the consent of the Commission.
3: See section 69A 1986 No 121 s 46A Section 74A replaced 26 October 2018 section 12 Commerce Amendment Act 2018
74B: Matters included in undertakings
1: An undertaking under section 74A
a: an undertaking to pay compensation to any person or otherwise take action to avoid, remedy, or mitigate any actual or likely adverse effects arising from a contravention, or possible contravention, of this Act:
b: an undertaking to pay to the Commission all or part of the Commission’s costs incurred in investigating, or bringing proceedings in relation to, a contravention, or possible contravention, of this Act.
2: However, the Commission may accept an undertaking relating to the enforcement of section 47
3: If the Commission accepts an undertaking that involves payment of compensation to any person, or payment of the Commission’s costs, the Commission must make the following information publicly available:
a: the amount of the compensation, or of the Commission’s costs, that has been undertaken to be paid; and
b: a brief description of the circumstances and nature of the contravention or possible contravention of this Act to which the undertaking relates.
4: In this section, a contravention
a: an actual contravention:
b: aiding, abetting, counselling, or procuring a contravention:
c: inducing a contravention, whether by threats, promises, or otherwise:
d: being in any way, directly or indirectly, knowingly concerned in, or party to, a contravention:
e: conspiring with any other person in a contravention. Section 74B replaced 26 October 2018 section 12 Commerce Amendment Act 2018
74C: Enforcement of undertakings
1: If the Commission considers that a person has breached an undertaking given under section 74A
2: The court may make any 1 or more of the following orders if it is satisfied that the person has breached a term of the undertaking:
a: an order directing the person to comply with the term:
b: an order directing the person to pay to the Crown an amount not exceeding the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach:
c: any order that the court thinks appropriate that directs the person to compensate any other person who has suffered loss or damage as a result of the breach:
d: an order for any consequential relief that the court thinks appropriate. 1986 No 121 s 46B Section 74C replaced 26 October 2018 section 12 Commerce Amendment Act 2018
74D: Pecuniary penalties for contravention of cease and desist order
Section 74D repealed 26 October 2018 section 12 Commerce Amendment Act 2018 Jurisdiction of courts
75: Jurisdiction of High Court
1: In accordance with this Part, the High Court must
aa: applications for orders under section 74C
a: in the case of contraventions of Part 2
i: proceedings for the recovery of pecuniary penalties under section 80
ii: applications for injunctions under section 81
iii: actions for damages under section 82
b: in the case of contraventions of Part 3
i: proceedings for the recovery of pecuniary penalties under section 83
ii: applications for injunctions under section 84
iia: actions for damages under section 84A
iii: proceedings under section 85
c: in the case of contraventions relating to Part 4
i: proceedings for the recovery of pecuniary penalties under section 86 87
ii: applications for orders under section 86A 86C 87A
iii: applications for injunctions under section 87C
d: applications for orders under section 89
e: appeals against determinations of the Commission:
f: applications for orders under section 80B section 80C
g: proceedings for offences against section 80E
h: applications for orders under section 82A
i: applications for orders under section 85A 85B
2: Section 75(1) amended 26 October 2018 section 13(1) Commerce Amendment Act 2018 Section 75(1)﻿(aa) replaced 26 October 2018 section 13(2) Commerce Amendment Act 2018 Section 75(1)﻿(b)﻿(i) substituted 1 January 1991 section 25 Commerce Amendment Act 1990 Section 75(1)﻿(b)﻿(iia) inserted 2 September 1996 Commerce Amendment Act 1996 Section 75(1)﻿(c) substituted 14 October 2008 section 9(1) Commerce Amendment Act 2008 Section 75(1)﻿(e) added 15 August 1991 section 3(4) Judicature Amendment Act 1991 Section 75(1)﻿(f) added 26 May 2001 section 16(2) Commerce Amendment Act 2001 Section 75(1)﻿(g) added 26 May 2001 section 16(2) Commerce Amendment Act 2001 Section 75(1)﻿(h) added 26 May 2001 section 16(2) Commerce Amendment Act 2001 Section 75(1)﻿(i) added 14 October 2008 section 9(2) Commerce Amendment Act 2008 Section 75(2) repealed 15 August 1991 section 3(4) Judicature Amendment Act 1991
76: Jurisdiction of District
Court In accordance with this Part, the District Court must sections 86B 87B 100 103 Section 76 heading amended 26 October 2018 section 14(1) Commerce Amendment Act 2018 Section 76 amended 26 October 2018 section 14(2) Commerce Amendment Act 2018 Section 76 amended 14 October 2008 section 10 Commerce Amendment Act 2008
77: Additional lay members of High Court for purposes of appellate jurisdiction in respect of Commission determinations
1: This section applies for the purposes of the exercise by the court of its jurisdiction and powers under sections 91 to 97
1A: There are to be lay members of the court appointed from time to time by the Governor-General.
2: No person shall be appointed as a lay member of the court
3: A lay member of the court
4: There shall be paid to such lay members, out of money appropriated by Parliament for the purpose, remuneration by way of fees, salary, or allowances, and travelling allowances and expenses, in accordance with the Fees and Travelling Allowances Act 1951
5: The Governor-General may terminate the appointment of a lay member of the court inability to perform the functions of the office
6: Any lay member of the court
7: Notwithstanding that the term of office of a lay member of the court court court
8: Before entering upon the exercise of the duties of their office, the lay members shall take an oath before a Judge of the court that they will faithfully and impartially perform the duties of their office.
9: The presence of a Judge of
10: The decision of a majority (including the Judge or, where more than 1 Judge sits, including a majority of the Judges) of the members present at a sitting of the court shall be the decision of the court.
11: If the members present are equally divided in opinion, the decision of the Judge, or of a majority of the Judges, shall be the decision of the court.
12: If any question before the court cannot be decided in accordance with subsections (10) and (11), the question shall be referred to the Court of Appeal for decision in accordance with the practice and procedure of that court, which for the purpose shall have all the powers of the High Court under this Part.
13: The decision of the Court of Appeal in any proceedings under this section takes effect, and must be entered,
14: Notwithstanding anything in the foregoing provisions of this section, a Judge of
a: an order on any application made in the course of any proceedings:
b: an order that is not opposed:
c: an order in any proceedings that the parties agree should be heard and determined by a Judge alone:
d: an order in any proceedings where the matter in issue is substantially a question of law only:
e: an order made on the application of any party directing that any proceedings should be heard and determined by a Judge alone on the ground that the matter in issue is substantially a question of law only:
f: an order granting the leave of the court to appeal to the Court of Appeal. 1975 No 113 s 122A; 1983 No 144 s 41; 1985 No 7 s 2 Section 77(1) replaced 30 May 2017 section 11 Regulatory Systems (Commercial Matters) Amendment Act 2017 Section 77(1A) inserted 30 May 2017 section 11 Regulatory Systems (Commercial Matters) Amendment Act 2017 Section 77(2) amended 15 August 1991 section 3(4) Judicature Amendment Act 1991 Section 77(3) amended 15 August 1991 section 3(4) Judicature Amendment Act 1991 Section 77(5) amended 1 January 2002 section 70(1) Human Rights Amendment Act 2001 Section 77(5) amended 15 August 1991 section 3(4) Judicature Amendment Act 1991 Section 77(6) amended 15 August 1991 section 3(4) Judicature Amendment Act 1991 Section 77(7) amended 15 August 1991 section 3(4) Judicature Amendment Act 1991 Section 77(9) amended 15 August 1991 section 3(4) Judicature Amendment Act 1991 Section 77(13) amended 1 January 2004 section 48(1) Supreme Court Act 2003 Section 77(14) amended 15 August 1991 section 3(4) Judicature Amendment Act 1991
78: Lay members of High Court in certain cases
1: For the purposes of the exercise by the High Court of its civil jurisdiction under section 47A 47B 47D sections 80 to 85 section 27 28 30 36 36A 37 38 47 47B section 77
2: Where a lay member of
3: The provisions of subsections (10) to (13) of section 77 sections 80 to 85
4: Notwithstanding anything in the foregoing provisions of this section, a Judge of the court sitting alone shall have jurisdiction—
a: to make any of the following orders—
i: an order on any application made in the course of any proceedings:
ii: an order that is not opposed:
iii: an order in any proceedings that the parties agree should be heard and determined by a Judge alone:
iv: an order in any proceedings where the matter in issue is substantially a question of law only:
v: an order made on the application of any party directing that any proceedings should be heard and determined by a Judge alone on the ground that the matter in issue is substantially a question of law only:
vi: an order granting the leave of the court to appeal to the Court of Appeal:
b:
c: to exercise the power to make an order directing the payment of a pecuniary penalty pursuant to section 80 or section 83
d: to exercise the power to grant an injunction pursuant to section 81 or section 84
e: to exercise the power to make an order for the payment of damages in proceedings under section 82 or section 84A
f: to exercise the power to make an order directing the disposal of shares or assets under section 85 Section 78(1) amended 15 August 2017 section 20(1) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 78(1) amended 15 August 1991 section 3(4) Judicature Amendment Act 1991 Section 78(2) amended 15 August 1991 section 3(4) Judicature Amendment Act 1991 Section 78(3) amended 1 January 1991 section 26(2) Commerce Amendment Act 1990 Section 78(4)﻿(b) repealed 15 August 2017 section 20(2) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 78(4)﻿(c) amended 1 January 1991 section 26(3)﻿(a) Commerce Amendment Act 1990 Section 78(4)﻿(d) amended 1 January 1991 section 26(3)﻿(b) Commerce Amendment Act 1990 Section 78(4)﻿(e) amended 1 January 1991 section 26(3)﻿(c) Commerce Amendment Act 1990 Section 78(4)﻿(f) added 1 January 1991 section 26(3)﻿(d) Commerce Amendment Act 1990
79: Evidence not otherwise admissible
In the exercise of its jurisdiction under this Part, except in respect of criminal proceedings and proceedings for pecuniary penalties Section 79 amended 14 October 2008 section 11 Commerce Amendment Act 2008 Proceedings for pecuniary penalties Heading inserted 14 October 2008 section 12(1) Commerce Amendment Act 2008
79A: Proceedings for pecuniary penalties
In any proceedings under this Part for a pecuniary penalty—
a: the standard of proof is the standard of proof applying in civil proceedings; and
b: the Commission may, by the order of the court, obtain discovery and administer interrogatories. Section 79A inserted 14 October 2008 section 12(1) Commerce Amendment Act 2008
79B: Relationship between pecuniary penalties and criminal liability
1: Once criminal proceedings against a person for an offence under section 82B 86B 87B
2: Once civil proceedings against a person for a pecuniary penalty under this Part are determined, the person may not be convicted of an offence under section 82B 86B 87B
3: Any uncompleted proceedings for an order under this Act that a person pay a pecuniary penalty must be stayed if criminal proceedings are started or have already been started against the person for the same act or omission, or substantially the same act or omission, in respect of which the pecuniary penalty order is sought. Section 79B inserted 14 October 2008 section 12(1) Commerce Amendment Act 2008 Section 79B(1) amended 8 April 2021 section 9(1) Commerce (Criminalisation of Cartels) Amendment Act 2019 Section 79B(2) amended 8 April 2021 section 9(2) Commerce (Criminalisation of Cartels) Amendment Act 2019 Section 79B(3) inserted 15 August 2017 section 21 Commerce (Cartels and Other Matters) Amendment Act 2017 Restrictive trade practices
80: Pecuniary penalties
relating to restrictive trade practices
1: If the court is satisfied on the application of the Commission that a person—
a: has contravened any of the provisions of Part 2
b: has attempted to contravene such a provision; or
c: has aided, abetted, counselled, or procured any other person to contravene such a provision; or
d: has induced, or attempted to induce, any other person, whether by threats or promises or otherwise, to contravene such a provision; or
e: has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by any other person of such a provision; or
f: has conspired with any other person to contravene such a provision,— the court may order the person to pay to the Crown such pecuniary penalty as the court determines to be appropriate
2: The court must order an individual who has engaged in any conduct referred to in subsection (1) to pay a pecuniary penalty, unless the court considers that there is good reason for not making that order.
2A: In determining an appropriate penalty under this section, the court must have regard to all relevant matters, in particular,—
a: any exemplary damages awarded under section 82A
b: in the case of a body corporate, the nature and extent of any commercial gain.
2B: The amount of any pecuniary penalty must not, in respect of each act or omission, exceed,—
a: in the case of an individual, $500,000; or
b: in any other case, the greater of the following:
i: $10 million:
ii: either,—
A: if it can be readily ascertained and if the court is satisfied that the contravention occurred in the course of producing a commercial gain, 3 times the value of any commercial gain resulting from the contravention; or
B: if the commercial gain cannot readily be ascertained, 10% of the turnover of the person and all its interconnected bodies corporate (if any) in each accounting period in which the contravention occurred.
2C: In proceedings relating to a contravention of section 30 section 31 32 33
3:
4:
5: Proceedings under this section may be commenced within 3 years after the matter giving rise to the contravention was discovered or ought reasonably to have been discovered. However, no proceedings under this section may be commenced 10 years or more after the matter giving rise to the contravention.
6: Where conduct by any person constitutes a contravention of 2 or more provisions of Part 2 Trade Practices Act 1974 ss 76, 77 (Aust) Section 80 heading amended 15 August 2017 section 22(1) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 80(1) amended 26 May 2001 section 17(1) Commerce Amendment Act 2001 Section 80(2) substituted 26 May 2001 section 17(2) Commerce Amendment Act 2001 Section 80(2A) inserted 26 May 2001 section 17(2) Commerce Amendment Act 2001 Section 80(2B) inserted 26 May 2001 section 17(2) Commerce Amendment Act 2001 Section 80(2B)﻿(b) replaced 15 August 2017 section 22(2) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 80(2C) inserted 15 August 2017 section 22(3) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 80(3) repealed 14 October 2008 section 12(2)﻿(b) Commerce Amendment Act 2008 Section 80(4) repealed 14 October 2008 section 12(2)﻿(b) Commerce Amendment Act 2008 Section 80(5) substituted 26 May 2001 section 17(3) Commerce Amendment Act 2001
80A: Restriction on indemnities relating to contraventions of section 30
1: A body corporate must not indemnify any director, employee, or agent, or former director, employee, or agent, of the body corporate or of any of its interconnected bodies corporate ( person A
a: any pecuniary penalty imposed on person A by the court under section 80 section 30
b: any costs incurred by person A in defending any civil proceedings in which the pecuniary penalty referred to in paragraph (a) is imposed ; or
c: any penalty imposed on person A by the court following the conviction of person A under section 82B
d: any costs incurred by person A in defending any criminal proceedings in which person A is convicted under section 82B
2: An indemnity given in contravention of subsection (1) is void.
3: In this section, indemnify indemnity Section 80A replaced 15 August 2017 section 23 Commerce (Cartels and Other Matters) Amendment Act 2017 Section 80A(1)﻿(b) amended 8 April 2021 section 10(1) Commerce (Criminalisation of Cartels) Amendment Act 2019 Section 80A(1)﻿(c) inserted 8 April 2021 section 10(2) Commerce (Criminalisation of Cartels) Amendment Act 2019 Section 80A(1)﻿(d) inserted 8 April 2021 section 10(2) Commerce (Criminalisation of Cartels) Amendment Act 2019
80B: Pecuniary penalties for contravention of section 80A
1: If the court is satisfied on the application of the Commission that a person section 80A person
2: The amount of any pecuniary penalty must not, in respect of each act or omission, exceed 2 times the value of any indemnity given in contravention of section 80A
3:
4:
5: Proceedings under this section may be commenced within 3 years after the matter giving rise to the contravention was discovered or ought reasonably to have been discovered. However, no proceedings under this section may be commenced 10 years or more after the matter giving rise to the contravention. Section 80B inserted 26 May 2001 section 18 Commerce Amendment Act 2001 Section 80B(1) amended 15 August 2017 section 32(2)﻿(b) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 80B(3) repealed 14 October 2008 section 12(2)﻿(c) Commerce Amendment Act 2008 Section 80B(4) repealed 14 October 2008 section 12(2)﻿(c) Commerce Amendment Act 2008
80C: Court may order certain persons to be excluded from management of body corporate
The court may make an order that a person must not, without the leave of the court, be a director or promoter of, or in any way, either directly or indirectly, be concerned or take part in the management of, a body corporate for a period not exceeding 5 years as may be specified in the order, if the court is satisfied on the application of the Commission that the person has, in contravention of section 30
a: entered into a contract or arrangement, or has arrived at an understanding, that contains a cartel provision; or
ab: given, or required the giving of, a covenant that contains a cartel provision; or
b: given effect to a contract, arrangement, understanding, or covenant
c:
d: Section 80C inserted 26 May 2001 section 18 Commerce Amendment Act 2001 Section 80C amended 15 August 2017 section 24(1) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 80C(a) replaced 15 August 2017 section 24(2) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 80C(ab) inserted 5 April 2023 section 36(1) Commerce Amendment Act 2022 Section 80C(b) replaced 15 August 2017 section 24(2) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 80C(b) amended 5 April 2023 section 36(2) Commerce Amendment Act 2022 Section 80C(c) repealed 15 August 2017 section 24(2) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 80C(d) repealed 15 August 2017 section 24(2) Commerce (Cartels and Other Matters) Amendment Act 2017
80D: Application for order under section 80C
1: The Commission must give not less than 10 days' notice of its intention to apply for an order under section 80C
2: On the hearing of the Commission's application or an application for leave by a person against whom an order under section 80C
a: the Commission must appear and call the attention of the court to any matter that seems to it to be relevant, and may give evidence or call witnesses; and
b: the person against whom the order is sought or has been made may appear and give evidence or call witnesses.
3: The Registrar of the court must, as soon as practicable after the making of an order under section 80C
a: the person against whom the order has been made; and
b: the Registrar of Companies, and the Registrar of Companies must give notice in the Gazette Section 80D inserted 26 May 2001 section 18 Commerce Amendment Act 2001
80E: Offence to act in contravention of order made under section 80C
1: Every person commits an offence who acts in contravention of an order made under section 80C
2: A person who commits an offence against subsection (1) is liable on conviction to imprisonment for a term not exceeding 5 years or to a fine not exceeding $200,000.
3: Section 80E inserted 26 May 2001 section 18 Commerce Amendment Act 2001 Section 80E(3) repealed 1 July 2013 section 413 Criminal Procedure Act 2011
81: Injunctions may be granted by court for contravention of Part 2
The court may, on the application of the Commission or any other person, grant an injunction restraining a person from engaging in conduct that constitutes or would constitute any of the following:
a: a contravention of any of the provisions of Part 2
b: any attempt to contravene such a provision:
c: aiding, abetting, counselling, or procuring any other person to contravene such a provision:
d: inducing, or attempting to induce, any other person, whether by threats, promises or otherwise, to contravene such a provision:
e: being in any way directly or indirectly, knowingly concerned in, or party to, the contravention by any other person of such a provision:
f: conspiring with any other person to contravene such a provision. Trade Practices Act 1974 s 80(1), (2) (Aust) Section 81 amended 15 August 2017 section 32(2)﻿(d) Commerce (Cartels and Other Matters) Amendment Act 2017
82: Actions for damages for contravention of Part 2
1: Every person is liable in damages for any loss or damage caused by that person engaging in conduct that constitutes any of the following:
a: a contravention of any of the provisions of Part 2
b: aiding, abetting, counselling, or procuring the contravention of such a provision:
c: inducing by threats, promises, or otherwise the contravention of such a provision:
d: being in any way directly or indirectly, knowingly concerned in, or party to, the contravention of such a provision:
e: conspiring with any other person in the contravention of such a provision.
2: An action under subsection (1) may be commenced within 3 years after the matter giving rise to the contravention was discovered or ought reasonably to have been discovered. However, no action under subsection (1) may be commenced 10 years or more after the matter giving rise to the contravention. Trade Practices Act 1974 s 82 (Aust) Section 82(1) amended 15 August 2017 section 32(2)﻿(d) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 82(2) substituted 26 May 2001 section 19 Commerce Amendment Act 2001
82A: Exemplary damages for contravention of Part 2
1: The court may order a person who has engaged in any conduct referred to in section 82(1) section 80
2: In determining whether to award exemplary damages and, if they are to be awarded, the amount of them, the court must have regard to—
a: whether a pecuniary penalty has been imposed on the defendant for a contravention involving the conduct concerned in the claim for exemplary damages; and
b: if so, the amount of the pecuniary penalty.
3: The court may not order a person to pay exemplary damages in relation to conduct for which the person has been convicted of an offence under section 82B Section 82A inserted 26 May 2001 section 20 Commerce Amendment Act 2001 Section 82A(3) inserted 8 April 2021 section 11 Commerce (Criminalisation of Cartels) Amendment Act 2019
82B: Offence relating to cartel prohibition
1: A person commits an offence if—
a: the person,—
i: in contravention of section 30(1)﻿(a)
ii: intends, at that time, to engage in price fixing, restricting output, or market allocating; or
ab: the person,—
i: in contravention of section 30(1)﻿(ab)
ii: intends, at the time the person gives or requires the giving of the covenant, to engage in price fixing, restricting output, or market allocating; or
b: the person,—
i: in contravention of section 30(1)﻿(b)
ii: intends, at the time the cartel provision is given effect to, to engage in price fixing, restricting output, or market allocating.
2: An individual who commits an offence against this section is liable on conviction to imprisonment for a term not exceeding 7 years or a fine not exceeding $500,000, or both.
3: A person other than an individual that commits an offence against this section is liable on conviction to a fine not exceeding the greater of the following:
a: $10 million:
b: either,—
i: if it can be readily ascertained and if the court is satisfied that the offence occurred in the course of producing a commercial gain, 3 times the value of any commercial gain resulting from the contravention; or
ii: if the commercial gain cannot be readily ascertained, 10% of the turnover of the person and all its interconnected bodies corporate (if any) in each accounting period in which the contravention occurred.
4: See section 30(1)﻿(a) , (ab), Section 82B inserted 8 April 2021 section 4 Commerce (Criminalisation of Cartels) Amendment Act 2019 Section 82B(1)﻿(ab) inserted 5 April 2023 section 37(1) Commerce Amendment Act 2022 Section 82B(4) amended 5 April 2023 section 37(2) Commerce Amendment Act 2022
82C: Defence relating to exceptions to cartel prohibition
1: In a prosecution under section 82B Part 2
2: However, the defence does not apply if the defendant’s belief is based on ignorance, or mistake, of any matter of law. Section 82C inserted 8 April 2021 section 4 Commerce (Criminalisation of Cartels) Amendment Act 2019
82D: Disclosure by defendant in cartel prosecution
1: A defendant that wishes to claim that an exception set out in Part 2 section 82C
a: notify the prosecution of that fact within 20 working days after the defendant pleads not guilty (or at any later time with the leave of the court); and
b: at the same time, provide sufficient details about the application of the relevant section to inform the prosecution about how the exception is claimed to have applied or how the defence will be relied on.
2: The court or the Registrar of the court must give written notice of the requirements in subsection (1) to a defendant who pleads not guilty. Section 82D inserted 8 April 2021 section 4 Commerce (Criminalisation of Cartels) Amendment Act 2019
82E: Consequences of failure to disclose under section 82D
1: This section applies if, at the hearing or trial of a defendant, the court is satisfied that—
a: evidence sought to be adduced by the defendant is, or is based on, information that should have been disclosed to the prosecution under section 82D
b: that information was not disclosed.
2: The court may—
a: exclude the evidence; or
b: with or without requiring the evidence to be disclosed, adjourn the hearing or trial; or
c: admit the evidence if it is in the interests of justice to do so; or
d: exercise its powers under any other enactment or rule of law that deals with the failure of a party to comply with the directions of the court.
3: However, if it appears to the court that the defendant was not given notice in accordance with section 82D(2)
a: must not order the exclusion of evidence under subsection (2)﻿(a); but
b: must adjourn the hearing or trial if the prosecution requests an adjournment. 2008 No 38 s 34 Section 82E inserted 8 April 2021 section 4 Commerce (Criminalisation of Cartels) Amendment Act 2019 Business acquisitions Heading substituted 1 January 1991 section 29 Commerce Amendment Act 1990
83: Pecuniary penalties
relating to business acquisitions
1: The court may, on the application of the Commission, order a person to pay a pecuniary penalty to the Crown if the court is satisfied that the person—
a: has contravened section 47 47B
b: has attempted to contravene either of those sections; or
c: has aided, abetted, counselled, or procured any other person to contravene either of those sections; or
d: has induced, or attempted to induce, any other person, whether by threats or promises or otherwise, to contravene either of those sections; or
e: has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by any other person of either of those sections; or
f: has conspired with any other person to contravene either of those sections.
1A:
2: In determining an appropriate penalty under this section, the court must
a: the nature and extent of the act or omission:
b: the nature and extent of any loss or damage suffered by any person as a result of the act or omission:
c: the circumstances in which the act or omission took place:
d: whether or not the person has previously been found by the court in proceedings under this Part to have engaged in any similar conduct.
3: The amount of any pecuniary penalty must not, in respect of each act or omission, exceed,—
a: in the case of an individual, $500,000; or
b: in any other case, the greater of the following:
i: $10 million:
ii: either,—
A: if it can be readily ascertained and if the court is satisfied that the contravention occurred in the course of producing a commercial gain, 3 times the value of any commercial gain resulting from the contravention; or
B: if the commercial gain cannot readily be ascertained, 10% of the turnover of the person and all its interconnected bodies corporate (if any) in each accounting period in which the contravention occurred.
3:
4:
5: Proceedings under this section may be commenced within 3 years after the matter giving rise to the contravention arose.
6: A person is not liable to a pecuniary penalty under both section 80 Section 83 substituted 1 January 1991 section 29 Commerce Amendment Act 1990 Section 83 heading amended 15 August 2017 section 25(1) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 83(1) replaced 15 August 2017 section 25(2) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 83(1A) repealed 5 May 2022 section 38(1) Commerce Amendment Act 2022 Section 83(2) amended 5 May 2022 section 38(2) Commerce Amendment Act 2022 Section 83(3) inserted 5 May 2022 section 38(3) Commerce Amendment Act 2022 Section 83(3) repealed 14 October 2008 section 12(2)﻿(d) Commerce Amendment Act 2008 Section 83(4) repealed 14 October 2008 section 12(2)﻿(d) Commerce Amendment Act 2008
84: Injunctions may be granted by court for contravention of Part 3
or undertaking
1: Where it appears to the court, on the application of the Commission or any other person, that a person intends to engage, or is engaging, or has engaged, in conduct that constitutes or would constitute a contravention of section 47
a: grant an injunction restraining any person from engaging in conduct that constitutes or would constitute—
i: a contravention of section 47
ii: any attempt to contravene that provision:
iii: aiding, abetting, counselling, or procuring any other person to contravene that provision:
iv: inducing or attempting to induce any other person, whether by threats, promises or otherwise, to contravene that provision:
v: being in any way directly or indirectly, knowingly concerned in, or party to, the contravention by any other person of that provision:
vi: conspiring with any other person to contravene that provision:
b: impose on any person obligations to be observed in the carrying on of any business or the safeguarding of any business or any assets of any business:
c: provide for the carrying on of any business or the safeguarding of any business or assets of any business, either by the appointment of a person to conduct or supervise the conduct of any business (on such terms and with such powers as may be specified or described in the order), or in any other manner, as it thinks necessary in the circumstances of the case.
2: If it appears to the court, on the application of the Commission, that a person intends to engage, or is engaging, or has engaged, in conduct that constitutes or would constitute a contravention of an undertaking accepted under section 69A
a: grant an injunction restraining any person from engaging in conduct that constitutes or would constitute—
i: a contravention of that undertaking:
ii: any attempt to contravene that undertaking:
iii: aiding, abetting, counselling, or procuring any other person to contravene that undertaking:
iv: inducing or attempting to induce any other person, whether by threats, promises, or otherwise, to contravene that undertaking:
v: being in any way directly or indirectly, knowingly concerned in, or party to, the contravention by any other person of that undertaking:
vi: conspiring with any other person to contravene that undertaking:
b: impose on any person obligations to be observed in the carrying on of any business or the safeguarding of any business or any assets of any business:
c: provide for the carrying on of any business or the safeguarding of any business or assets of any business, either by the appointment of a person to conduct or supervise the conduct of any business (on the terms and with the powers as may be specified or described in the order), or in any other manner, as it thinks necessary in the circumstances of the case. 1975 No 113 s 81H; 1976 No 67 s 22; 1983 No 144 s 35 Section 84 heading amended 14 October 2008 section 13(1) Commerce Amendment Act 2008 Section 84(1) amended 1 January 1991 section 30(a) Commerce Amendment Act 1990 Section 84(1)﻿(a)﻿(i) amended 1 January 1991 section 30(b) Commerce Amendment Act 1990 Section 84(2) added 14 October 2008 section 69A section 66 67 section 13(2) Commerce Amendment Act 2008
84A: Actions for damages for contravention of Part 3
1: Every person is liable in damages for any loss or damage caused by that person engaging in conduct that constitutes any of the following:
a: a contravention of section 47 47B
b: aiding, abetting, counselling, or procuring the contravention of section 47 47B
c: inducing by threats, promises, or otherwise the contravention of section 47 47B
d: being in any way directly or indirectly, knowingly concerned in, or party to, the contravention of section 47 47B
e: conspiring with any other person in the contravention of section 47 47B
2: An action under subsection (1) may be commenced at any time within 3 years from the time when the cause of action arose. Section 84A inserted 1 January 1991 section 31 Commerce Amendment Act 1990 Section 84A(1) replaced 15 August 2017 section 26 Commerce (Cartels and Other Matters) Amendment Act 2017
85: Court may order divestiture of assets or shares in respect of contravention of
section 47
1: In any case where the court, on the application of the Commission, is satisfied that any person—
a: has contravened section 47
b: has been found in any other proceedings under this Part to have contravened section 47 it may, by order,—
c: give directions for the disposal by that person of such assets or shares as shall be specified in the order; or
d: give directions for the disposal by that person of any assets or shares in accordance with an undertaking given by the person under section 69A
2: An application under subsection (1) may be made at any time within 2 years from the date on which the contravention occurred. Section 85 substituted 1 January 1991 section 32 Commerce Amendment Act 1990 Section 85 heading amended 15 August 2017 section 32(2)﻿(a) Commerce (Cartels and Other Matters) Amendment Act 2017
85A: Pecuniary penalties for contravention of undertaking
1: The court may, on the application of the Commission, order a person to pay a pecuniary penalty to the Crown if the court is satisfied that the person—
a: has contravened an undertaking accepted under section 69A
b: has attempted to contravene an undertaking accepted under section 69A
c: has aided, abetted, counselled, or procured any other person to contravene an undertaking accepted under section 69A
d: has induced, or attempted to induce, any other person, whether by threats or promises or otherwise, to contravene an undertaking accepted under section 69A
e: has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by any other person of an undertaking accepted under section 69A
f: has conspired with any other person to contravene an undertaking accepted under section 69A
2: However, the court may only make an order under subsection (1) if the acquisition to which the undertaking relates has proceeded.
3: The amount of pecuniary penalty must not, in respect of each act or omission, exceed $500,000.
4: In setting the amount of pecuniary penalty, the court must take into account all of the following matters:
a: the nature and extent of the contravention:
b: the circumstances in which the contravention took place:
c: whether the person has obstructed or hindered the Commission in any attempt of the Commission to obtain compliance with the undertaking:
d: whether the person has taken any steps with the intention of—
i: impeding the disposal of assets or shares in accordance with the undertaking; or
ii: limiting the effectiveness of the undertaking in preventing a substantial lessening of competition in a market:
e: whether the person or an interconnected body corporate has previously been found by the court in proceedings under this Part to have engaged in similar conduct.
5: Subsection (4) is subject to section 85C
6: A person may not be liable to more than 1 pecuniary penalty in respect of the same conduct.
7: An application under this section may be made at any time within 12 months from the date on which the relevant obligation under the undertaking was required to be met. Section 85A inserted 14 October 2008 section 69A section 66 67 section 14(1) Commerce Amendment Act 2008
85B: Court may order divestiture of assets or shares in respect of contravention of undertaking
1: If the court, on the application of the Commission, is satisfied that any person has contravened an undertaking accepted under section 69A
2: An application under this section may be made at any time within 12 months from the date on which the relevant obligation under the undertaking was required to be met. Section 85B inserted 14 October 2008 section 69A section 66 67 section 14(1) Commerce Amendment Act 2008
85C: Matters court must not take into account under sections 85A and 85B
For the purposes of sections 85A 85B
a: whether it was appropriate for the Commission to accept the undertaking under section 69A
b: whether the undertaking under section 69A
c: whether any of the terms of the undertaking under section 69A
d: the extent to which the contravention of the undertaking under section 69A Section 85C inserted 14 October 2008 section 69A section 66 67 section 14(1) Commerce Amendment Act 2008 Regulated goods or services Heading substituted 14 October 2008 section 15 Commerce Amendment Act 2008
86: Pecuniary penalty for contravening information disclosure requirement
1: The court may, on application by the Commission, order any person to pay a pecuniary penalty to the Crown if the court is satisfied that the person—
a: has contravened any information disclosure requirement (as defined in section 52C
b: has attempted to contravene any such requirement; or
c: has aided, abetted, counselled, or procured any other person to contravene any such requirement; or
d: has induced, or attempted to induce, any other person, whether by threats or promises or otherwise, to contravene any such requirement; or
e: has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by any other person of any such requirement; or
f: has conspired with any other person to contravene any such requirement.
2: In subsection (1) and section 86B contravening an information disclosure requirement
a: failing to disclose information required to be disclosed:
b: failing to disclose information in the form or within the time required:
c: disclosing information under an information disclosure requirement that is false or misleading.
3: The amount of pecuniary penalty must not, in respect of each act or omission, exceed $500,000 in the case of an individual, or $5,000,000 in any other case
4: In determining the amount of pecuniary penalty, the court must have regard to all relevant matters, including—
a: the nature and extent of the contravention; and
b: the circumstances in which the contravention took place (including whether the contravention was intentional, inadvertent, or caused by negligence); and
c: whether the person has previously been found by the court in proceedings under this Part to have engaged in similar conduct.
5: A supplier may not be liable to more than 1 pecuniary penalty in respect of the same conduct.
6: Proceedings under this section may be commenced at any time within 3 years after the contravention occurred. Section 86 substituted 14 October 2008 section 15 Commerce Amendment Act 2008 Section 86(3) amended 15 August 2017 section 32(2)﻿(b) Commerce (Cartels and Other Matters) Amendment Act 2017
86A: Order requiring information disclosure requirement to be complied with
1: The court may, on application by the Commission, order a supplier of regulated goods or services to comply with an information disclosure requirement that applies to the supplier.
2: An order under this section must specify the date by which, or period within which, the supplier must comply with the requirement. Section 86A inserted 14 October 2008 section 15 Commerce Amendment Act 2008
86B: Offences relating to information disclosure regulation
1: A person commits an offence if—
a: the person, knowing that particular goods or services are subject to information disclosure regulation, intentionally contravenes any information disclosure requirement relating to those goods or services; or
b: the person is subject to an order under section 86A
2: A person who commits an offence under subsection (1) is liable on in any other case
3: Section 86B inserted 14 October 2008 section 15 Commerce Amendment Act 2008 Section 86B(2) amended 15 August 2017 section 32(2)﻿(b) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 86B(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 86B(3) repealed 1 July 2013 section 413 Criminal Procedure Act 2011
86C: Orders where negotiate/arbitrate regulation applies
1: The court may, on the application of a party ( party A
a: an order requiring another party to the negotiation or arbitration ( party B section 52P
b: an order requiring party B to pay party A an amount to compensate party A for loss or damage suffered as a result of party B failing to co-operate, or inadequately co-operating with, the negotiation or arbitration.
2: Any application for an order under subsection (1)﻿(b) must be made within 1 year after the date on which the failure to co-operate, or inadequate co-operation, occurred.
3: In setting an amount under subsection (1)﻿(b), the court must have regard to all relevant factors, including—
a: the nature and extent of the failure to co-operate; and
b: the extent to which the failure was the result of factors outside the control of party B; and
c: whether party B has previously been ordered to pay compensation for a similar failure in proceedings under this section. Section 86C inserted 14 October 2008 section 15 Commerce Amendment Act 2008
87: Pecuniary penalty for contravening price-quality requirements
1: The court may, on application by the Commission, order a person to pay a pecuniary penalty to the Crown if the court is satisfied that the person—
a: has contravened any price-quality requirement applying to the regulated goods or services; or
b: has attempted to contravene any such requirement; or
c: has aided, abetted, counselled, or procured any other person to contravene any such requirement; or
d: has induced, or attempted to induce, any other person, whether by threats or promises or otherwise, to contravene any such requirement; or
e: has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by any other person of any such requirement; or
f: has conspired with any other person to contravene any such requirement.
2: In subsection (1) and sections 87A to 87C contravening a price-quality requirement
a: refers to a requirement imposed by a determination made under section 52P Part 4
b: means either or both of the following:
i: failing to comply with the requirements for prices, whether by charging a price for the goods or services that is higher than the maximum price permitted, or by receiving more revenue than is permitted, or in any other way:
ii: refusing or failing to comply with any quality standards required under the price-quality regulation.
3: The amount of pecuniary penalty must not, in respect of each act or omission, exceed $500,000 in the case of an individual, or $5,000,000 in any other case
4: In setting the amount of pecuniary penalty, the court must take into account all of the following matters:
a: the nature and extent of the contravention:
b: the nature and extent of any loss or damage suffered by any person as a result of the contravention:
c: the circumstances in which the contravention took place (including whether the contravention was intentional, inadvertent, or caused by negligence):
d: whether or not the person has previously been found by the court in proceedings under this Part to have engaged in similar conduct.
5: A supplier may not be liable to more than 1 pecuniary penalty in respect of the same conduct.
6: Proceedings under this section may be commenced at any time within 3 years after the contravention occurred. Section 87 substituted 14 October 2008 section 15 Commerce Amendment Act 2008 Section 87(3) amended 15 August 2017 section 32(2)﻿(b) Commerce (Cartels and Other Matters) Amendment Act 2017
87A: Compensation for contravention of price-quality requirement
1: If the court orders a person to pay a pecuniary penalty under section 87 aggrieved person
2: An application for orders under this section may be made by the Commission or any aggrieved person.
3: The application must be made within 1 year of the date of the pecuniary penalty order.
4: The court may make an order under this section whether or not any aggrieved person is party to the proceedings.
5: In proceedings under this section, the court may make such orders as to cost as it thinks fit. Section 87A inserted 14 October 2008 section 15 Commerce Amendment Act 2008
87B: Offence relating to price-quality regulation
1: A person commits an offence if—
a: the person, knowing that particular goods or services are subject to price-quality regulation, intentionally contravenes a price-quality requirement in respect of the goods or services; or
b: the person is subject to an order under section 87C(1)﻿(b)
2: A person who commits an offence under subsection (1) is liable on in any other case
3: Section 87B inserted 14 October 2008 section 15 Commerce Amendment Act 2008 Section 87B(2) amended 15 August 2017 section 32(2)﻿(b) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 87B(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 87B(3) repealed 1 July 2013 section 413 Criminal Procedure Act 2011
87C: Injunction and other orders relating to price-quality regulation
1: If the court is satisfied that goods or services that are subject to price-quality regulation are being supplied, or are likely to be supplied, in contravention of any price-quality requirement applying with respect to those goods or services, the court may do either or both of the following:
a: grant an injunction restraining any supplier of those goods or services from supplying them in contravention of the price-quality requirement:
b: make an order requiring
2: An application for an injunction or Section 87C inserted 14 October 2008 section 15 Commerce Amendment Act 2008 Section 87C(1)﻿(b) amended 26 October 2018 section 20(1) Commerce Amendment Act 2018 Section 87C(2) amended 26 October 2018 section 20(2) Commerce Amendment Act 2018 Injunctions generally
88: General provisions relating to granting of injunctions
1: The court may at any time rescind or vary an injunction granted under this Part.
2: Where an application is made to the court under this Part for the grant of an injunction restraining a person from engaging in conduct of a particular kind the court may,—
a: if it is satisfied that the person has engaged in conduct of that kind, grant an injunction restraining the person from engaging in conduct of that kind; or
b: if in the opinion of the court it is desirable to do so, grant an interim injunction restraining the person from engaging in conduct of that kind,— whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind.
3: Where an application is made to the court under this Part for the grant of an injunction restraining a person from engaging in conduct of a particular kind, the court may,—
a: if it appears to the court that, in the event that an injunction is not granted, it is likely that the person will engage in conduct of that kind, grant an injunction restraining the person from engaging in conduct of that kind; or
b: if in the opinion of the court it is desirable to do so, grant an interim injunction restraining the person from engaging in conduct of that kind,— whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind.
3A: In determining whether to grant an interim injunction under this section, the court must give any weight that the court considers appropriate to the interests of consumers or, as the case may be, acquirers.
4: In any proceeding under this section, the Commission, upon the order of the court, may obtain discovery and administer interrogatories. Trade Practices Act 1974 s 80(3), (4), (5) (Aust) Section 88(3A) substituted 26 May 2001 section 22 Commerce Amendment Act 2001
88A: When undertaking as to damages not required by Commission
1: If the Commission applies to the court for the grant of an interim injunction under this Part, the court must not, as a condition of granting an interim injunction, require the Commission to give an undertaking as to damages.
2: However, in determining the Commission's application for the grant of an interim injunction, the court must not take into account that the Commission is not required to give an undertaking as to damages. Section 88A inserted 26 May 2001 section 23 Commerce Amendment Act 2001
89: Other orders
1: Where, in any proceedings under this Part, the court finds that a person who is a party to the proceedings has suffered, or is likely to suffer, loss or damage by conduct of another person that was engaged in in contravention of any of the provisions of Part 2 section 81(b) to (f)
2: Where a contract is entered into in contravention of this Act, or as the case may be, a contract contains a provision which if given effect to would contravene this Act, the court may, in any proceedings under this Part, or on application made for the purpose by a party to the contract or any person claiming through or under any party to the contract, make an order—
a: varying the contract, in such manner as it thinks fit, not being a manner inconsistent with the provisions of this Act:
b: cancelling the contract:
c: requiring any person who is a party to the contract to make restitution or pay compensation to any other person who is a party to the contract.
3: Where a covenant is given in contravention of this Act, or as the case may be, the enforcement of the terms of a covenant would contravene this Act, the court may, in any proceedings under this Part, or on application made for the purpose by a party to
a: varying the covenant, in such manner as it thinks fit, not being a manner inconsistent with the provisions of this Act:
b: requiring any party to
4: Nothing in subsection (2) or subsection (3) shall prevent any proceedings being instituted or commenced under this Part.
5: Nothing in subpart 5
6: Notwithstanding any enactment or rule of law, where a contract is entered into in contravention of this Act by reason that the contract contains a particular provision, or the contract contains a provision which if given effect to would contravene this Act, the enforceability of any other provision of the contract shall not be affected by the existence of that provision.
7: In this section, a reference to a contravention of this Act includes a reference to contravening the requirements of any type of regulation under Part 4 Trade Practices Act 1974 s 87(1)﻿(a) (Aust) Section 89(3) amended 5 April 2023 section 39 Commerce Amendment Act 2022 Section 89(3)﻿(b) amended 5 April 2023 section 39 Commerce Amendment Act 2022 Section 89(5) amended 1 September 2017 section 347 Contract and Commercial Law Act 2017 Section 89(7) added 14 October 2008 section 16 Commerce Amendment Act 2008
90: Conduct by employees, agents, and others
1: In proceedings under this Part in respect of conduct engaged in by a person other than an individual ( person A
2: Conduct by a person ( person B person A
a: person B was a director, employee, or agent of person A, acting within the scope of person B’s actual or apparent authority; or
b: person B was a person who was acting on the direction, or with the consent or agreement (express or implied), of a director, employee, or agent of person A who was acting within the scope of the director’s, employee’s, or agent’s actual or apparent authority.
3: In civil proceedings under this Part in respect of conduct engaged in by an individual ( person C
4: In civil proceedings under this Part, conduct by a person ( person B person C
a: person B was acting at the direction, or with the consent or agreement (express or implied), of person C; or
b: person B was an employee or agent of person C and acting within the scope of person B’s actual or apparent authority; or
c: person B was a person who was acting on the direction, or with the consent or agreement (express or implied), of an employee or agent of person C who was acting within the scope of the employee’s or agent’s actual or apparent authority.
5: A reference in this section to the state of mind of a person includes a reference to—
a: the knowledge, intention, opinion, belief, or purpose of the person and the person's reasons for that intention, opinion, belief, or purpose; and
b: the state of mind of a person outside New Zealand. Section 90 replaced 15 August 2017 section 27 Commerce (Cartels and Other Matters) Amendment Act 2017 Appeals from determinations of Commission
91: Appeals in relation to determinations by Commission
1: There is a right of appeal to the High Court under this subsection against any determination of the Commission under this Act, other than the following:
a: a determination, or any part of a determination, made under section 52P section 52P determination
i: how information disclosure regulation or negotiate/arbitrate regulation applies to regulated suppliers; or
ii: the default price-quality path that applies to regulated suppliers:
b: an input methodology determination (as defined in section 52Z
1A: An appeal against a section 52P
1B: There is a right of appeal to the High Court on a question of law against any determination of the Commission under this Act (including a determination referred to in subsection (1)).
2: Every such appeal shall be made by giving notice of appeal within 20 working days after the date of the determination appealed against or within such further time as the court may allow. 1975 No 113 s 42 Section 91(1) substituted 14 October 2008 section 17 Commerce Amendment Act 2008 Section 91(1A) inserted 14 October 2008 section 17 Commerce Amendment Act 2008 Section 91(1B) inserted 14 October 2008 section 17 Commerce Amendment Act 2008
92: Persons entitled to appeal
The following persons may exercise the right of appeal pursuant to section 91
a: in the case of an appeal against a determination of the Commission in relation to an application for an authorisation under section 58 67
i: has a direct and significant interest in the application; and
ii: participated in the Commission's processes leading up to the determination:
b: in the case of an appeal against a determination of the Commission revoking or amending an authorisation pursuant to section 65(1)
ba: in the case of an appeal against a determination of the Commission under section 65A
i: the person who applied for the clearance; and
ii: any other person who is a party to the contract, arrangement, understanding, or covenant
c: in the case of an appeal against a determination of the Commission under section 66
i: the person who sought the clearance; and
ii: any person whose assets, or the shares in which, are proposed to be acquired pursuant to the clearance:
d: in the case of an appeal against a determination made under section 52P section 52C
e:
f: Section 92 amended 15 August 2017 section 32(2)﻿(d) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 92(a) replaced 15 August 2017 section 28(1) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 92(ba) inserted 15 August 2017 section 28(2) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 92(ba)﻿(ii) amended 5 April 2023 section 40 Commerce Amendment Act 2022 Section 92(c) replaced 15 August 2017 section 28(3) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 92(d) substituted 14 October 2008 section 18 Commerce Amendment Act 2008 Section 92(e) repealed 14 October 2008 section 18 Commerce Amendment Act 2008 Section 92(f) repealed 26 October 2018 section 15 Commerce Amendment Act 2018
93: Determination of appeals
In determining an appeal under section 91(1)
a: confirm, modify, or reverse the determination or any part of it:
b: exercise any of the powers that could have been exercised by the Commission in relation to the matter to which the appeal relates. 1975 No 113 s 45(3), (4) Section 93 amended 14 October 2008 section 19 Commerce Amendment Act 2008
94: Court may refer appeals back for reconsideration
1: Notwithstanding anything in section 93
2: In giving any direction under this section, the court shall—
a: advise the Commission of its reasons for doing so; and
b: give to the Commission such directions as it thinks just concerning the reconsideration or otherwise of the whole or any part of the matter that is referred back for reconsideration.
3: In reconsidering the matter so referred back, the Commission shall have regard to the court's reasons for giving a direction under subsection (1), and the court's directions under subsection (2). 1975 No 113 s 46
95: Provisions pending determination of appeal
1: Where an appeal is brought under any provision of this Part against any determination of the Commission, the determination to which the appeal relates shall remain in full force pending the determination of the appeal, unless the court orders to the contrary.
2: However, the court may not stay the application of a determination made under section 52P section 91(1) or (1B) 1975 No 113 s 47; 1979 No 140 s 21 Section 95(2) added 14 October 2008 section 20 Commerce Amendment Act 2008
96: Court may order proceedings to be heard in private
1: The court may, in its discretion, order that the hearing or any part of the hearing of any proceedings under this Act shall be held in private.
2: The court may make an order prohibiting the publication of any report or description of proceedings or any part of proceedings under this Act (whether heard in public or in private); but no order under this subsection shall prohibit the publication of any determination of the court. 1975 No 113 s 45(1), (2)
97: Appeal to Court of Appeal in certain cases
1: Notwithstanding anything in any enactment, any party to any appeal before section 56
2: In determining whether to grant leave to appeal under this section, the court to which the application for leave is made shall have regard to the following matters:
a: whether any question of law or general principle is involved:
b: the importance of the issues to the parties:
c: the amount of money in issue:
d: such other matters as in the particular circumstances the court thinks fit.
3: The court granting leave under this section may in its discretion impose such conditions as it thinks fit, whether as to costs or otherwise.
4:
5: An appeal to the Court of Appeal under this section may be made against either of the following only on a point of law:
a: a decision or order of the High Court under section 52Z
b: a decision or order of the High Court on an appeal under section 91(1) or (1B) section 52P Section 97(1) amended 1 March 2017 section 183(b) Senior Courts Act 2016 Section 97(1) amended 15 August 1991 section 3(4) Judicature Amendment Act 1991 Section 97(4) repealed 1 January 2004 section 48(1) Supreme Court Act 2003 Section 97(5) added 14 October 2008 section 21 Commerce Amendment Act 2008
7: Miscellaneous provisions
Powers relating to evidence Heading inserted 5 May 2022 section 41 Commerce Amendment Act 2022
98: Commission may require person to supply information or documents or give evidence
1: Where the Commission considers it necessary or desirable for the purposes of carrying out its functions and exercising its powers under this Act, the Commission may, by notice in writing served on any person, require that person—
a: to furnish to the Commission, by writing signed by that person or, in the case of a body corporate, by a director or competent servant or agent of the body corporate, within the time and in the manner specified in the notice, any information or class of information specified in the notice; or
b: to produce to the Commission, or to a person specified in the notice acting on its behalf in accordance with the notice, any document or class of documents specified in the notice; or
c: to appear before the Commission at a time and place specified in the notice to give evidence, either orally or in writing, and produce any document or class of documents specified in the notice.
2: For the purposes of subsection (1), the Commission’s powers under this Act include the power to investigate whether an exception or exemption from this Act (whether under this Act or any other enactment) applies to a person or to a person’s conduct.
(3): A person may appear before the Commission under subsection (1)﻿(c) by audio link or audiovisual link if the Commission and the person agree.
(4): In this section,— audio link audiovisual link Section 98(1) substituted 1 July 1990 section 34 Commerce Amendment Act 1990 Section 98(2) inserted 15 August 2017 section 29 Commerce (Cartels and Other Matters) Amendment Act 2017 Section 98(3) inserted 16 December 2017 section 45 Electronic Interactions Reform Act 2017 Section 98(4) inserted 16 December 2017 section 45 Electronic Interactions Reform Act 2017
98A: Power to search
1: The Commission may, from time to time, authorise an employee of the Commission to search under a warrant issued under subsection (2) any place named in the warrant for the purpose of ascertaining whether a person has engaged in or is engaging in conduct that constitutes or may constitute a contravention of this Act, not being a contravention of section 99A
2: An issuing officer (within the meaning of section 3 subpart 3 section 99A
3: The provisions of Part 4 sections 118 119
4: In this section, a reference to a contravention of this Act includes a reference to contravening the requirements of any type of regulation under Part 4
5: For the purpose of allowing the Commission to provide, under section 99I section 99G(1)﻿(b) Section 98A inserted 1 July 1990 section 34 Commerce Amendment Act 1990 Section 98A(2) amended 1 October 2012 section 313(2) Search and Surveillance Act 2012 Section 98A(3) replaced 1 October 2012 section 313(3) Search and Surveillance Act 2012 Section 98A(4) added 14 October 2008 section 22 Commerce Amendment Act 2008 Section 98A(4) amended 1 October 2012 section 313(4) Search and Surveillance Act 2012 Section 98A(5) inserted 24 October 2012 section 4 Commerce (International Co-operation, and Fees) Amendment Act 2012
98B: Powers conferred by warrant
Section 98B repealed 1 October 2012 section 313(5) Search and Surveillance Act 2012
98C: Warrant to be produced
Section 98C repealed 1 October 2012 section 313(5) Search and Surveillance Act 2012
98D: Other duties of person who executes a warrant
Section 98D repealed 1 October 2012 section 313(5) Search and Surveillance Act 2012
98E: Duty to assist
Section 98E repealed 1 October 2012 section 313(5) Search and Surveillance Act 2012
98F: Power to inspect and take copies of documents, etc
Section 98F repealed 1 October 2012 section 313(5) Search and Surveillance Act 2012
98G: Commission may exercise powers notwithstanding other proceedings
The Commission may exercise any power under sections 98 and 98A Part 6 Section 98G inserted 1 July 1990 section 34 Commerce Amendment Act 1990 Section 98G amended 1 October 2012 section 313(6) Search and Surveillance Act 2012
98H: Supply of information and documents in relation to section 36A
1: Where the Commission considers it necessary or desirable for the purposes of carrying out its functions and exercising its powers under this Act in relation to section 36A
a: to furnish to the Commission, by writing signed by that person or, in the case of a body corporate, by a director or competent servant or agent of the body corporate, within the time and in the manner specified in the notice, any information or class of information specified in the notice; or
b: to produce to the Commission, or to a person specified in the notice acting on its behalf in accordance with the notice, any document or class of documents specified in the notice.
2: A person who is required to furnish information or a class of information or produce any document or class of documents to the Commission pursuant to this section complies with this section if that person furnishes the information or that class of information or produces the document or that class of documents to the Australian Competition and Consumer Commission Competition and Consumer Act 2010 Section 98H inserted 1 July 1990 section 34 Commerce Amendment Act 1990 Section 98H(2) amended 15 August 2017 section 32(2)﻿(c) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 98H(2) amended 2 September 1996 Commerce Amendment Act 1996
99: Powers of Commission to take evidence
1: For the purposes of carrying out its functions and exercising its powers under this Act, the Commission may receive in evidence any statement, document, information, or matter that may in its opinion assist it to deal effectively with the matter before it, whether or not the same would be otherwise admissible in a court of law.
2: The Commission may take evidence on oath and for that purpose a member of the Commission or any employee of the Commission
3: The Commission may require the evidence referred to in section 98(c) employee of the Commission
4: The Commission may permit a person appearing as a witness before the Commission to give evidence by tendering and, if the Commission thinks fit, verifying by oath, a written statement.
5: Where any person has appeared as a witness before the Commission pursuant to a notice in that behalf, or has given evidence before the Commission, whether pursuant to a notice or not, the Commission may, if it thinks fit, order any sum to be paid to that witness on account of his expenses, not exceeding the amount that would be payable to him if his attendance had been as a witness for the Crown in a criminal case in accordance with the regulations for the time being in force for the payment of witnesses for the Crown in criminal cases. 1975 No 113 s 13; 1976 No 67 s 8(8)﻿(d) Section 99(2) amended 25 January 2005 section 200 Crown Entities Act 2004 Section 99(3) amended 25 January 2005 section 200 Crown Entities Act 2004 Section 99(3) amended 1 July 1990 section 35 Commerce Amendment Act 1990 Power to share information and documents with public service agencies, statutory entities, Reserve Bank, and New Zealand Police Heading inserted 5 May 2022 section 42 Commerce Amendment Act 2022
99AA: Sharing of information and documents with public service agencies, statutory entities, Reserve Bank, and New Zealand Police
1: The Commission may provide to a public service agency, a statutory entity, the Reserve Bank of New Zealand, or the New Zealand Police any information, or a copy of any document, that the Commission—
a: holds in relation to the performance or exercise of the Commission’s functions, powers, or duties under this Act or any other legislation; and
b: considers may assist the public service agency, statutory entity, the Reserve Bank, or the New Zealand Police in the performance or exercise of its functions, powers, or duties under this Act or any other legislation.
2: The Commission may provide information, or a copy of a document, under this section only if the Commission is satisfied that—
a: doing so will not substantially affect the performance of its other functions; and
b: appropriate protections are or will be in place for the purpose of maintaining the confidentiality of anything provided (in particular, information that is personal information within the meaning of the Privacy Act 2020
3: The Commission may use any information, or a copy of any document, in the Commission’s performance or exercise of its functions, powers, or duties under any legislation if the information or copy is provided to the Commission—
a: by a public service agency, a statutory entity, the Reserve Bank, or the New Zealand Police under any legislation; or
b: by an overseas regulator.
4: In this section and section 99AB statutory entity Schedule 1
5: This section applies despite anything to the contrary in any contract, deed, or document.
6: Nothing in this section limits the Privacy Act 2020 section 29 Section 99AA inserted 5 May 2022 section 42 Commerce Amendment Act 2022
99AB: Commission may impose conditions on provision of information or documents
1: The Commission may impose any conditions in relation to providing information, or a copy of a document, to a public service agency, a statutory entity, the Reserve Bank of New Zealand, or the New Zealand Police (whether provided in compliance with a request or otherwise).
2: The Commission must, in considering what conditions to impose, have regard to whether conditions are necessary or desirable in order to protect the privacy of any individual.
3: The conditions may include, without limitation, conditions relating to—
a: maintaining the confidentiality of anything provided (in particular, information that is personal information within the meaning of the Privacy Act 2020
b: the storing of, the use of, or access to anything provided:
c: the copying, returning, or disposing of copies of documents provided:
d: payment of the costs incurred by the Commission in providing anything or in generally complying with a request.
4: This section does not limit section 100 Section 99AB inserted 5 May 2022 section 42 Commerce Amendment Act 2022 Assistance to overseas regulators Heading inserted 5 May 2022 section 42 Commerce Amendment Act 2022
99A: Commission may receive information and documents on behalf of
Australian Competition and Consumer Commission
1: Where the Australian Competition and Consumer Commission Competition and Consumer Act 2010 Australian Competition and Consumer Commission
2: The Commission shall deliver the information or class of information furnished or the document or class of documents produced to it to the Australian Competition and Consumer Commission
3: Every person who—
a: refuses or fails, without reasonable excuse, to comply with a requirement referred to in subsection (1); or
b: in purported compliance with such a requirement, furnishes information or produces a document knowing it to be false or misleading— commits an offence and is liable on in any other case Section 99A inserted 1 July 1990 section 36 Commerce Amendment Act 1990 Section 99A heading amended 2 September 1996 Commerce Amendment Act 1996 Section 99A(1) amended 15 August 2017 section 32(2)﻿(c) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 99A(1) amended 2 September 1996 Commerce Amendment Act 1996 Section 99A(2) amended 2 September 1996 Commerce Amendment Act 1996 Section 99A(3) amended 15 August 2017 section 32(2)﻿(b) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 99A(3) amended 1 July 2013 section 413 Criminal Procedure Act 2011
99B: Purpose of sections 99C to 99P (which relate to assistance to overseas regulators)
The purpose of sections 99C to 99P
a: to provide for when and how the Commission may provide compulsorily acquired information and investigative assistance to overseas regulators; and
b: to clarify other matters relating to sharing other kinds of information with overseas regulators. Section 99B inserted 24 October 2012 section 5 Commerce (International Co-operation, and Fees) Amendment Act 2012
99C: Definitions of terms used in sections 99B to 99P
In sections 99B to 99P co-operation arrangement section 99E section 99F
a: the provision by the Commission of compulsorily acquired information and investigative assistance to the overseas regulator; and
b: the provision by the overseas regulator of information and investigative assistance to the Commission compulsorily acquired information
a: is acquired by the Commission, whether before or after this section comes into force, as a result of, or in relation to, the exercise by the Commission of any of its powers under section 98 98A 98H
b: is not in the public domain investigative assistance section 98 98A 98H recognised overseas regulator Section 99C inserted 24 October 2012 section 5 Commerce (International Co-operation, and Fees) Amendment Act 2012 Section 99C overseas regulator repealed 5 May 2022 section 43 Commerce Amendment Act 2022
99D: Restrictions on providing compulsorily acquired information and investigative assistance
The Commission must not provide compulsorily acquired information or investigative assistance to an overseas regulator unless the information or assistance is provided—
a: to a recognised overseas regulator in accordance with a co-operation arrangement; and
b: in accordance with sections 99I to 99K Section 99D inserted 24 October 2012 section 5 Commerce (International Co-operation, and Fees) Amendment Act 2012
99E: Government-to-government co-operation arrangements
1: The Minister may, on behalf of the Government of New Zealand, enter into a co-operation arrangement concerning an overseas regulator with—
a: the government of the country in which the overseas regulator is established; or
b: if the overseas regulator is established by an international body, the governing body of that international body.
2: Before entering into a co-operation arrangement concerning an overseas regulator, the Minister must—
a: have regard to the legal framework relating to the use of compulsorily acquired information in the jurisdiction of the overseas regulator; and
b: have regard to the potential consequences for New Zealand consumers and businesses of providing compulsorily acquired information or investigative assistance to the overseas regulator; and
c: consult with the Privacy Commissioner on any privacy issues arising from the proposed co-operation arrangement.
3: The Minister must not enter into a co-operation arrangement unless he or she is satisfied that entering into the arrangement is not inconsistent with any of New Zealand’s obligations under international agreements, conventions, or treaties. Section 99E inserted 24 October 2012 section 5 Commerce (International Co-operation, and Fees) Amendment Act 2012
99F: Regulator-to-regulator co-operation arrangements
1: The Commission may, with the prior written approval of the Minister, enter into a co-operation arrangement with an overseas regulator.
2: The Minister may not give approval to a co-operation arrangement under this section unless the Minister—
a: has had regard to the matters specified in section 99E(2)﻿(a) and (b)
b: is satisfied of the matter specified in section 99E(3) Section 99F inserted 24 October 2012 section 5 Commerce (International Co-operation, and Fees) Amendment Act 2012
99G: Content of co-operation arrangements
1: Every co-operation arrangement must—
a: identify the overseas regulator that it concerns; and
b: identify the foreign enactments in connection with which the recognised overseas regulator may seek compulsorily acquired information and investigative assistance from the Commission; and
c: set out how any compulsorily acquired information that is provided may be used by the overseas regulator, and how it is to be kept secure.
2: A co-operation arrangement may also—
a: provide for the reimbursement of the Commission for costs incurred in providing the information or assistance; and
b: include other conditions on the provision of compulsorily acquired information or investigative assistance. Section 99G inserted 24 October 2012 section 5 Commerce (International Co-operation, and Fees) Amendment Act 2012
99H: Procedures relating to co-operation arrangements
1: Every co-operation arrangement must be in writing and be signed by,—
a: in the case of a government-to-government co-operation arrangement entered into under section 99E
b: in the case of a regulator-to-regulator co-operation arrangement entered into under section 99F
2: No later than 15 working days after a co-operation arrangement is entered into,—
a: the Minister or the Commission, as appropriate, must publish a notice in the Gazette
i: states that the arrangement has been entered into; and
ii: identifies the overseas regulator concerned; and
iii: identifies the parties to the arrangement; and
iv: states when the arrangement comes into effect; and
b: the Commission must publish a copy of the co-operation arrangement on its Internet site, and must keep it there while the arrangement continues in force.
3: Subsections (1) and (2) apply with all necessary modifications to every amendment to a co-operation arrangement. Section 99H inserted 24 October 2012 section 5 Commerce (International Co-operation, and Fees) Amendment Act 2012
99I: Providing compulsorily acquired information and investigative assistance
1: Following a request by a recognised overseas regulator made in accordance with a co-operation arrangement, the Commission may do either or both of the following:
a: provide compulsorily acquired information to the recognised overseas regulator:
b: provide investigative assistance to the recognised overseas regulator.
2: Before providing compulsorily acquired information or investigative assistance under subsection (1), the Commission must be satisfied that—
a: providing the information or assistance will, or is likely to, assist the recognised overseas regulator in performing its functions or exercising its powers in relation to competition law; and
b: the provision of the information or assistance will not be inconsistent with the co-operation arrangement; and
c: the provision of the information or assistance will not significantly prejudice New Zealand's international trade interests.
3: If the Commission considers, after consultation with the Ministry of Foreign Affairs and Trade, that a request for compulsorily acquired information or investigative assistance may have significant trade consequences for New Zealand, the Commission must refer the matter to the Minister of Trade.
4: If a request is referred to the Minister of Trade, the Commission is deemed to be satisfied for the purpose of subsection (2)﻿(c) only if the Minister of Trade states, in writing, that he or she is satisfied that the provision of the information or assistance will not significantly prejudice New Zealand's international trade interests.
5: In considering whether to provide compulsorily acquired information or investigative assistance in accordance with a co-operation arrangement, the Commission must also consider—
a: whether complying with the request will substantially affect the Commission's ability to perform its other functions under this Act or any other enactment; and
b: whether the recognised overseas regulator could more conveniently obtain the information or assistance from another source; and
c: whether the request would, in the opinion of the Commission, be more appropriately dealt with under the Mutual Assistance in Criminal Matters Act 1992 Section 99I inserted 24 October 2012 section 5 Commerce (International Co-operation, and Fees) Amendment Act 2012
99J: Conditions on providing compulsorily acquired information and investigative assistance
1: If the Commission provides compulsorily acquired information or investigative assistance to a recognised overseas regulator, the Commission may impose conditions on such provision, including conditions relating to—
a: maintaining the confidentiality of information; and
b: the storage or use of, or access to, anything provided; and
c: the copying, returning, or disposal of copies of anything provided; and
d: the payment of costs incurred by the Commission in providing anything or in otherwise complying with a request for information or investigative assistance.
2: The Commission must not provide copies of statements made by any person in answer to a question put by or before the Commission that might tend to incriminate the person, unless the recognised overseas regulator gives a written undertaking—
a: that it will not use such statements as evidence—
i: in criminal proceedings against the person (other than in proceedings in respect of the falsity of the person's testimony); or
ii: in proceedings against the person for a pecuniary penalty or any equivalent proceedings; and
b: that, to the extent that it is within the ability of the overseas regulator to do so, it will ensure that such statements are not used by any other person, authority, or agency as evidence in proceedings referred to in paragraph (a). Section 99J inserted 24 October 2012 section 5 Commerce (International Co-operation, and Fees) Amendment Act 2012
99K: Notice to persons affected by provision of information
1: If the Commission provides any compulsorily acquired information to a recognised overseas regulator, the Commission must, as soon as practicable after providing the information, notify the following people that the information has been provided:
a: the person from whom the information was acquired:
b: every person to whom the information relates.
2: However, the Commission need not notify a person as required by subsection (1) if—
a: giving notice might compromise any investigation conducted, or to be conducted, by the Commission or any overseas regulator; or
b: giving notice would prejudice the maintenance of the law (including the prevention, investigation, and detection of offences, and the right to a fair trial) in New Zealand or elsewhere; or
c: it is not practicable in the circumstances to give notice to the person. Section 99K inserted 24 October 2012 section 5 Commerce (International Co-operation, and Fees) Amendment Act 2012
99L: Reporting on use of co-operation arrangements
The Commission’s annual report must report on the use and operation of co-operation arrangements during the period covered by the report, and include information on—
a: the number and general nature of requests for information and investigative assistance received from recognised overseas regulators; and
b: the number and general nature of requests for information and investigative assistance that the Commission has made to recognised overseas regulators. Section 99L inserted 24 October 2012 section 5 Commerce (International Co-operation, and Fees) Amendment Act 2012
99M: Sharing of non-compulsorily acquired information not affected
Except to the extent that non-compulsorily acquired information is dealt with in a co-operation arrangement, the ability of the Commission to provide non-compulsorily acquired information to an overseas regulator is not affected by—
a: sections 99B to 99L
b: whether or not the overseas regulator is a recognised overseas regulator. Section 99M inserted 24 October 2012 section 5 Commerce (International Co-operation, and Fees) Amendment Act 2012
99N: Information provided by consent
Nothing in sections 99B to 99L Section 99N inserted 24 October 2012 section 5 Commerce (International Co-operation, and Fees) Amendment Act 2012
99O: Part 4 information not to be provided
The Commission must not provide information to an overseas regulator that the Commission has obtained under, pursuant to, or for the purposes of Part 4 Section 99O inserted 24 October 2012 section 5 Commerce (International Co-operation, and Fees) Amendment Act 2012
99P: Maintenance of privilege
1: If the Commission provides to an overseas regulator, for the purpose of assisting the overseas regulator to perform its competition law functions, a communication or information in respect of which the Commission has any privilege referred to in section 54 56 57
2: If the Commission receives from an overseas regulator, for the purpose of assisting the Commission to perform its competition law functions under this Act, a communication or information that, under the law of the country of the overseas regulator is subject to a privilege analogous to a privilege of a kind referred to in section 54 56 57 Evidence Act 2006
3: The Commission must not provide a communication or information that is subject to the privilege referred to in section 57
4: To avoid doubt, this section applies whether or not a communication or information is provided under a co-operation arrangement. Section 99P inserted 24 October 2012 section 5 Commerce (International Co-operation, and Fees) Amendment Act 2012 Offences, regulations, and administrative provisions Heading inserted 5 May 2022 section 44 Commerce Amendment Act 2022
100: Powers of Commission to prohibit disclosure of information, documents, and evidence
1: Subject to subsection (2), the Commission may, in relation to any application for, or any notice seeking, any clearance or authorisation under Part 5
a: the publication or communication of any information or document or evidence which is furnished or given or tendered to, or obtained by, the Commission in connection with the operations of the Commission:
b: the giving of any evidence involving any such information, document, or evidence.
2: Any order made by the Commission under subsection (1) may be expressed to have effect for such period as is specified in the order, but no such order shall have effect,—
a: where that order was made in connection with any application for, or any notice seeking, any clearance or authorisation under Part 5
b: where that order was made in connection with any other investigation or inquiry conducted by the Commission, after the conclusion of that investigation or inquiry.
3: On the expiry of any order made under subsection (1), the provisions of the Official Information Act 1982
4: Every person who, contrary to any order made by the Commission under subsection (1), publishes or communicates any information or document or evidence commits an offence and is liable, on
5: For the purposes of this section, an inquiry section 48 Section 100 substituted 1 April 1987 section 25(1) Official Information Amendment Act 1987 Section 100(4) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 100(5) inserted 26 October 2018 section 16 Commerce Amendment Act 2018
100A: Commission may state case for opinion of High Court
1: The Commission may at any time state a case for the opinion of the court on any question of law arising in any matter before it.
2: The court may order the removal into the Court of Appeal of any case stated for the opinion of the court under this section.
3: The court or the Court of Appeal, as the case may be, shall hear and determine the question, and shall remit the case with its opinion to the Commission. Section 100A inserted 2 September 1996 Commerce Amendment Act 1996
101: Notices
1: Any notice given by the Commission under or for the purposes of this Act shall be sufficiently given if it is in writing under the seal of the Commission or is signed by the chairperson section 102
2: All documents purporting to be signed by or on behalf of the Commission or to be sealed with the seal of the Commission shall, in all courts and in all proceedings under this Act, be deemed to have been so signed or sealed with due authority unless the contrary is proved. 1975 No 113 s 120A; 1976 No 67 s 37(1) Section 101(1) amended 25 January 2005 section 200 Crown Entities Act 2004
102: Service of notices
1: A notice or any other document required or authorised to be served on or given to a person for the purposes of this Act may be served or given by—
a: delivering it to the person; or
b: leaving it at the person’s usual or last known place of residence or business or at the address specified by the person in any notice, application, or other document given to the Commission under this Act; or
c: sending it by post to the person’s usual or last known place of residence or business or to the address specified by the person in any notice, application, or other document given to the Commission under this Act; or
d: emailing it to the person at an email address that is used by the person.
2: A notice or any other document that is sent to a person by a service that records delivery must, in the absence of proof to the contrary, be treated as received by the person when it would have been delivered in the ordinary course of business for that service, and, in proving the delivery, it is sufficient to prove that the document was properly addressed and provided to the service.
2A: In the absence of proof to the contrary, a notice or any other document that is emailed to a person must be treated as received by the person on the second working day after the date on which it is emailed, and, in proving that the document was emailed, it is sufficient to prove that the document was properly addressed and sent to the email address.
3: Where for any purpose under this Act a notice or document is required to be served on an association or body of persons the notice or document may be served on the secretary, executive officer, manager, or other officer holding a similar position in the association or body; and for the purposes of this Act, service on the association or body shall, unless otherwise directed by the Commission, be deemed to be service on all persons who are members of the association or body or who are represented on the association or body by those members. 1975 No 113 s 121(1)–(3) Section 102(1) replaced 16 December 2017 section 46 Electronic Interactions Reform Act 2017 Section 102(2) replaced 16 December 2017 section 46 Electronic Interactions Reform Act 2017 Section 102(2A) inserted 16 December 2017 section 46 Electronic Interactions Reform Act 2017
103: Offences
1: No person shall—
a: without reasonable excuse, refuse or fail to comply with a notice under sections 53B(1)﻿(c) 53N 53ZD 98
b: in purported compliance with such a notice, furnish information, or produce a document, or give evidence, knowing it to be false or misleading; or
c: resist, obstruct, or delay an employee of the Commission acting pursuant to a warrant issued under section 98A
2: No person shall attempt to deceive or knowingly mislead the Commission in relation to any matter before it.
3: No person, having been required to appear before the Commission pursuant to section 98(c)
a: without reasonable excuse, refuse or fail to appear before the Commission to give evidence; or
b: refuse to take an oath or make an affirmation as a witness; or
c: refuse to answer any question; or
d: refuse to produce to the Commission any book or document that that person is required to produce.
4: A person who contravenes subsection (1), (2), or (3) commits an offence and is liable on conviction to,—
a: in the case of an individual, a fine not exceeding $100,000:
b: in any other case, a fine not exceeding $300,000.
5: Proceedings for an offence against subsection (4) may be commenced within 3 years Section 103 substituted 1 July 1990 section 37 Commerce Amendment Act 1990 Section 103(1)﻿(a) amended 14 October 2008 section 23 Commerce Amendment Act 2008 Section 103(4) replaced 15 August 2017 section 30(1) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 103(5) added 26 May 2001 section 25 Commerce Amendment Act 2001 Section 103(5) amended 15 August 2017 section 30(2) Commerce (Cartels and Other Matters) Amendment Act 2017
104: Determinations of Commission
1: Any determination, clearance, authorisation, or decision given by the Commission under or for the purposes of this Act shall be sufficiently given if it is in writing under the seal of the Commission or is signed by 1 or more members of the Commission or by an employee of the Commission
2: A copy of a determination, clearance, authorisation or decision of the Commission, certified to be a true copy by an employee of the Commission
3: A document purporting to be a copy of a determination, clearance, authorisation or decision of the Commission and to be certified to be a true copy in accordance with subsection (2) shall, unless the contrary is established, be deemed to be such a copy and to be so certified. 1975 No 113 s 120A; 1976 No 67 s 37(1) Section 104(1) amended 25 January 2005 section 200 Crown Entities Act 2004 Section 104(2) amended 25 January 2005 section 200 Crown Entities Act 2004
105: Restriction on delegation
1: The Commission may not delegate its powers to grant, revoke, or vary an authorisation under this Act
2:
3: Section 105 substituted 25 January 2005 section 200 Crown Entities Act 2004 Section 105(1) amended 14 October 2008 section 24(1) Commerce Amendment Act 2008 Section 105(2) repealed 14 October 2008 section 24(2) Commerce Amendment Act 2008 Section 105(3) repealed 14 October 2008 section 24(2) Commerce Amendment Act 2008
106: Proceedings privileged
1: No proceedings, civil or criminal, shall lie against the Commission for anything it may do or fail to do in the course of the exercise or intended exercise of its functions, unless it is shown that the Commission acted without reasonable care or in bad faith.
2: No proceedings, civil or criminal, lie against any member of the Commission, or any officer or employee of the Commission, or any member of a committee of the Commission, for anything that person may do or say or fail to do or say in the course of the operations of the Commission, unless it is shown that the person acted in bad faith.
3: Nothing in subsections (1) and (2) applies in respect of proceedings for—
a: an offence against section 78 section 78A section 105 section 105A
b: the offence of conspiring to commit an offence against section 78 section 78A section 105 section 105A
c: the offence of attempting to commit an offence against section 78 section 78A section 105 section 105A
3A: Section 59(3)
3B: Sections 122 to 126
3C: This section contains an exception to section 121
4: A person shall not be excused from complying with any requirement to furnish information, produce documents, or give evidence under this Act, or, on appearing before the Commission, from answering any question or producing any document, on the ground that to do so might tend to incriminate that person
5: A statement made by a person in answer to a question put by or before the Commission shall not in criminal proceedings or in proceedings for pecuniary penalties
6: Nothing in subsection (5) applies in respect of—
a: proceedings on a charge of perjury against the maker of the statement; or
b: proceedings on a charge of an offence against section 103
7: No court or other person shall be entitled to require any member of the Commission, or any employee of the Commission
8: Nothing in subsection (7) applies in respect of—
a: any proceedings referred to in subsection (3) or subsection (6); or
b: any proceedings to which the Commission is a party.
9: Anything said, or any information furnished, or any document produced or tendered, or any evidence given by any person to the Commission, shall be privileged in the same manner as if that statement, information, document, or evidence were made, furnished, produced, or given in proceedings in a court.
10: For the purposes of clause 3 1975 No 113 ss 17(1), (3), (4), 130B; 1976 No 67 ss 9, 23(3); 1983 No 144 s 45 Section 106(2) substituted 25 January 2005 section 200 Crown Entities Act 2004 Section 106(3A) inserted 25 January 2005 section 200 Crown Entities Act 2004 Section 106(3B) inserted 25 January 2005 section 200 Crown Entities Act 2004 Section 106(3C) inserted 25 January 2005 section 200 Crown Entities Act 2004 Section 106(4) substituted 1 July 1990 section 39 Commerce Amendment Act 1990 Section 106(4) amended 14 October 2008 section 25(1) Commerce Amendment Act 2008 Section 106(5) substituted 1 July 1990 section 39 Commerce Amendment Act 1990 Section 106(5) amended 14 October 2008 section 25(2) Commerce Amendment Act 2008 Section 106(5) amended 14 October 2008 section 25(3) Commerce Amendment Act 2008 Section 106(6)﻿(b) amended 14 October 2008 section 25(4) Commerce Amendment Act 2008 Section 106(7) amended 25 January 2005 section 200 Crown Entities Act 2004 Section 106(10) substituted 1 February 1993 section 56(1) Defamation Act 1992
106A: Judicial notice
For the purposes of this Act, judicial notice shall be taken in all courts and for all purposes of—
a: the common seal of the Commission:
b: the signature of any person holding, or who has held, office as the chairperson deputy chairperson
c: the official seal of the Australian Competition and Consumer Commission
d: the official signature of any person holding, or who has held, office as the chairperson deputy chairperson Australian Competition and Consumer Commission Section 106A inserted 1 July 1990 section 40 Commerce Amendment Act 1990 Section 106A(b) amended 25 January 2005 section 200 Crown Entities Act 2004 Section 106A(c) amended 2 September 1996 Commerce Amendment Act 1996 Section 106A(d) amended 25 January 2005 section 200 Crown Entities Act 2004 Section 106A(d) amended 2 September 1996 Commerce Amendment Act 1996
107: Cartel prosecutors panel
1: The Solicitor-General must appoint a cartel prosecutors panel for the purpose of enabling prosecutions under section 82B
2: The Solicitor-General must consult with the chairperson before appointing the panel.
3: The panel must consist of those lawyers that the Solicitor-General considers appropriate.
4: Only members of the panel may conduct prosecutions under section 82B
5: In this section, lawyer section 6 Section 107 inserted 8 April 2021 section 12 Commerce (Criminalisation of Cartels) Amendment Act 2019
107: Annual report
Section 107 repealed 25 January 2005 section 200 Crown Entities Act 2004
108: Regulations
1: The Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes:
a: prescribing the procedure to be followed under this Act in respect of applications and notices to, and proceedings of, the Commission:
b: prescribing forms of applications, notices, and other documents required for the purposes of this Act, and requiring the use of such forms:
c: prescribing fees to be paid for the purposes of this Act:
ca: authorising the Commission, in its discretion or on any grounds that are prescribed, to refund any part of a prescribed fee paid by a person in connection with an application under Part 5
cb:
cc: requiring the Commission to refund, within a prescribed time, all or any part of a fee paid in respect of an application under section 58 or 65A section 66(1) 67(1)
cd: prescribing a class or classes of persons who are exempt from the requirement to pay any fee prescribed for an application under section 58 or 65A section 66(1) 67(1)
d: providing for such other matters as are contemplated by or necessary for giving full effect to the provisions of this Act and for its due administration.
2: Regulations under this section are secondary legislation ( see Part 3 1975 No 113 s 132 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 108(1)﻿(ca) replaced 15 August 2017 section 31(1) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 108(1)﻿(cb) repealed 15 August 2017 section 31(1) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 108(1)﻿(cc) inserted 24 October 2012 section 7 Commerce (International Co-operation, and Fees) Amendment Act 2012 Section 108(1)﻿(cc) amended 15 August 2017 section 31(2) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 108(1)﻿(cd) inserted 24 October 2012 section 7 Commerce (International Co-operation, and Fees) Amendment Act 2012 Section 108(1)﻿(cd) amended 15 August 2017 section 31(2) Commerce (Cartels and Other Matters) Amendment Act 2017 Section 108(2) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
109: Commission may prescribe forms
For the purposes of this Act, the Section 109 amended 15 August 2017 section 32(2)﻿(d) Commerce (Cartels and Other Matters) Amendment Act 2017
110: Repeals, revocations, savings, and consequential amendments
1: The enactments specified in Schedule 2
2: The enactments specified in Schedule 3
3: The regulations and orders specified in Schedule 4
4: Without limiting any provision of this Act, it is hereby expressly declared that every order, approval, authorisation, notice, decision, consent, or any other act of authority that orginated under or was deemed to have originated under any enactment, regulations, or order repealed or revoked by this section (not being a consent granted in respect of a merger or takeover proposal under the Commerce Act 1975) and subsisting or in force at the commencement of this Act, shall cease to have effect on that commencement.
5: The repeal of the enactments, and the revocation of the regulations and orders, by this section shall not affect the liability of any person for any offence that was committed before the commencement of this Act, and any proceedings for any such offence may be taken as if this Act had not been passed.
6: Unless the context otherwise requires, in any other enactment a reference to the Examiner of Trade Practices and Prices appointed under section 10 of the Trade Practices Act 1958 shall be read as a reference to the Secretary of Trade and Industry.
111: Transitional provisions in respect of certain contracts, arrangements, or understandings
1: Nothing in sections 27 29 sections 80 to 82
2: Nothing in section 28 sections 80 to 82
3:
4:
5: Nothing in sections 27 29 sections 80 to 82
a: constituted a trade practice in respect of which an approval granted by the Commerce Commission under section 29 of the Commerce Act 1975 was in force (being a trade practice to which section 27(1) of that Act applied); or
b: constituted a trade practice deemed to have been approved, or deemed to have been approved subject to conditions, under section 29 of the Commerce Act 1975 pursuant to subsection (10) of that section (being a trade practice to which section 18A of the Trade Practices Act 1958 applied); or
c: constituted a collective pricing practice to which section 30 of the Commerce Act 1975 applied.
6: Nothing in this section limits or affects the application of the provisions of Part 5 Part 6 sections 80 to 82 Section 111(3) repealed 1 March 1987 Civil Aviation Amendment Act 1987 Section 111(4) repealed 1 March 1987 Civil Aviation Amendment Act 1987
112: Transitional provisions in respect of goods and services subject to price control under Commerce Act 1975
Section 112 repealed 1 July 1990 section 43(1) Commerce Amendment Act 1990
113: Transitional provisions in respect of goods and services subject to price restraint under regulations made under Commerce Act 1975
Section 113 repealed 1 July 1990 section 43(1) Commerce Amendment Act 1990
114: Transitional provisions in respect of milk pricing
Section 114 repealed 1 July 1990 section 43(1) Commerce Amendment Act 1990
115: Savings in respect of certain provisions of Commerce Act 1975
Section 115 repealed 1 March 1987 section 49(2) Fair Trading Act 1986
116: Winding up of Commerce Commission established under Commerce Act 1975
Section 116 repealed 14 October 2008 section 27 Commerce Amendment Act 2008
117: Members of Commerce Commission established under Commerce Act 1975 deemed to be members of Commission
Section 117 repealed 14 October 2008 section 27 Commerce Amendment Act 2008
118: Lay members of
Section 118 repealed 14 October 2008 section 27 Commerce Amendment Act 2008