Grocery Industry Competition Act 2023

1: Title
This Act is the Grocery Industry Competition Act 2023.
2: Commencement
1: This Act comes into force on the 14th day after Royal assent.
2: However, section 19
a: on a single date set by Order in Council; but
b: 9 months after Royal assent, if that section has not commenced by then.
3: An Order in Council 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.
1: Preliminary provisions
3: Purpose
The purpose of this Act is to promote competition and efficiency in the grocery industry for the long-term benefit of consumers in New Zealand.
4: Commission’s functions under this Act
1: In addition to the other functions conferred on the Commission by this Act, the Commission’s functions under this Act are as follows:
a: to monitor competition and efficiency in the grocery industry:
b: to carry out inquiries, reviews, and studies (including international benchmarking) in connection with the grocery industry:
c: to act as a regulator of the grocery industry under this Act, including by—
i: issuing warnings, reports, or guidelines, or making comments, about any matter relating to the grocery industry, participants, or other persons engaged in conduct relating to the grocery industry (including in relation to 1 or more particular persons); and
ii: performing or exercising duties and powers under this Act, including making recommendations and issuing determinations under Parts 2 3
iii: monitoring compliance with and enforcing this Act, including by investigating conduct that constitutes or may constitute a contravention, an attempted contravention, or an involvement in a contravention; and
iv: taking appropriate action in respect of persons that have contravened, are contravening, have attempted to contravene, or are likely to contravene this Act, or have been involved, are involved, or are likely to be involved in a contravention of this Act:
d: to make available, or co-operate in making available, information in connection with the grocery industry (for example, reports or summaries about the things referred to in paragraphs (a) to (c)):
e: to co-operate with—
i: any other law enforcement or regulatory agency that carries out a role in relation to the grocery industry; and
ii: any overseas regulator that has functions in relation to a grocery industry corresponding to those of the Commission under this Act:
f: to keep under review the law and practices that are relevant to its other functions under this section (including overseas law and practices).
2: The Commission’s objective in performing its monitoring and reporting functions under this Act is to promote the purpose of this Act, including by—
a: understanding the current and emerging (or likely future) trends or issues in relation to the grocery industry and its participants; and
b: promoting transparency in, and about, that industry and about the way it is being regulated; and
c: supporting participants to understand and comply with that industry’s regulation; and
d: contributing to a trading environment in which businesses compete effectively and consumers and businesses participate confidently; and
e: improving awareness about the matters covered by reports under sections 20 60 74 78 92 103 108 175 176
3: The Commission’s monitoring and reporting functions under this Act may apply to any goods and services supplied by any grocery retailer.
5: Interpretation
1: In this Act, unless the context otherwise requires,— agreement associated person associated chief executive civil liability provision section 124(2) Commission
a: 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) competition consumer
a: acquires, from a grocery retailer, groceries of a kind ordinarily acquired for personal, domestic, or household use or consumption; and
b: does not acquire the groceries, or hold themselves out as acquiring the groceries, for the purpose of—
i: resupplying groceries in trade; or
ii: consuming groceries in the course of a process of production or manufacture court see sections 146 147 document section 2 franchisee goods section 2(1) groceries
a: means goods in any of the following product categories:
i: fresh produce (for example, fruit, vegetables, and mushrooms):
ii: meat, seafood, or meat substitutes:
iii: dairy products (for example, milk, cheese, and butter):
iv: bakery products:
v: chilled or frozen food:
vi: pantry goods or dry goods (for example, eggs):
vii: manufacturer-packaged food:
viii: non-alcoholic drinks:
ix: personal care products (for example, toiletries, first aid, and medicine other than prescription medicine):
x: household consumables (for example, cleaning products, laundry products, and stationery products):
xi: pet care products (for example, pet food); but
b: does not include, for the purposes of the Act as a whole or for a specified Part of the Act, any good or product category that is excluded from this definition by the regulations for the purposes of the Act or that Part grocery retailer
a: means a person who carries on the business of supplying 1 or more categories of groceries to consumers; and
b: includes a regulated grocery retailer grocery supply code Part 2 interconnected interconnected bodies corporate section 2(7) involved in a contravention section 148 Minister Ministry participant
a: in trade; and
b: involved, directly or indirectly, in the grocery supply chain private label product publish
a: administered by or on behalf of the person who must or may publish the information; and
b: publicly available as far as practicable and free of charge regulated grocery retailer
a: for the purposes of Part 2 section 8
b: for the purposes of Part 3 section 26 regulations senior manager A supplier supply transacting shareholder section 4 turnover voting product section 6(1) wholesale customer section 25
2: In this Act, a person ( A associated associated person B
a: A is a body corporate and B has the power, directly or indirectly, to exercise, or control the exercise of, the rights to vote attaching to 25% or more of the voting products of the body corporate (or vice versa):
b: A and B are interconnected bodies corporate:
c: A and B are partners to whom the Partnership Law Act 2019
d: A is a director or senior manager of B (or vice versa):
e: A is a franchisee of B (or vice versa):
f: A is a transacting shareholder of B (or vice versa):
g: A and B are acting jointly or in concert:
h: A acts, or is accustomed to act, in accordance with the wishes of B (or vice versa):
i: A is able, directly or indirectly, to exert a substantial degree of influence over the activities of B (or vice versa):
j: A and B are bodies corporate that consist substantially of the same members or shareholders or that are under the control of the same persons:
k: there is another person with which A and B are both associated.
3: In this Act, a person ( C franchisee D
a: C has entered into or arrived at an agreement with D; and
b: under the agreement,—
i: D grants C the right to carry on the business of offering, supplying, or distributing goods under a system or marketing plan substantially determined, controlled, or suggested by D or any of D’s associated persons; and
ii: the business will be substantially or materially associated with a trade mark, marketing plan, or commercial symbol owned, used, or licensed by D or any of D’s associated persons.
6: Transitional, savings, and related provisions
The transitional, savings, and related provisions set out in Schedule 1
7: Act binds the Crown
This Act binds the Crown.
2: Grocery supply code
Regulated grocery retailers
8: Grocery retailers that have grocery supply code obligations
In this Part, regulated grocery retailer
a: Foodstuffs North Island Limited:
b: Foodstuffs South Island Limited:
c: Woolworths New Zealand Limited:
d: a person that is designated as a regulated grocery retailer under section 9
e: a person that is any of the following in relation to a person ( A
i: a person that is an interconnected body corporate of A:
ii: a person that is a successor to A:
iii: a person that is a franchisee of A:
iv: a person that is a transacting shareholder of A.
9: Power to designate grocery retailer as having grocery supply code obligations
1: The Governor-General may, on the recommendation of the Minister, make an Order in Council designating a person as a regulated grocery retailer for the purpose of this Part.
2: 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.
10: Minister’s recommendation for designation under this Part
1: The Minister may recommend that a person ( A
a: the Commission has given the Minister a recommendation about whether A should be designated; and
b: the Minister has had regard to the Commission’s recommendation.
2: In deciding whether to make a recommendation, the Minister may do any of the following:
a: accept the Commission’s recommendation that A be designated if the Minister is satisfied that the criteria set out in section 11(3)
b: reject the Commission’s recommendation that A be designated:
c: request that the Commission reconsider any matter (such as an error, an oversight, or competing policy interests):
d: reject the Commission’s recommendation that A not be designated and decide to recommend that A be designated if the Minister considers it is in the public interest:
e: accept the Commission’s recommendation that A not be designated.
11: Commission’s recommendation about designation under this Part
1: This section applies when the Commission is deciding what recommendation to give to the Minister about whether a person ( A
2: The Commission must—
a: publish a statement of its reasons for proposing to make a recommendation; and
b: consult the persons, or the representatives of the persons, that the Commission considers will be substantially affected by the recommendation (including A).
3: The Commission must be satisfied—
a: that A carries on, or is likely to carry on, a business of supplying all or a majority of categories of groceries to consumers; and
b: that any or all of the following apply:
i: A’s groceries turnover for the last accounting period exceeds $750 million:
ii: the designation of A as a regulated 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 A supplies, or is likely to supply, groceries in competition with 1 or more regulated grocery retailers:
iii: the Commission has carried out an investigation into A (either at its discretion or at the request of the Minister), and the Commission is satisfied that—
A: A’s conduct has had the purpose, effect, or likely effect of unduly hindering or obstructing suppliers or a class of suppliers from participating confidently in their dealings with A; and
B: designating A as a regulated grocery retailer under this Part is likely to assist in the purpose of the grocery supply code being met.
4: The Commission may use any process that it considers appropriate for an investigation under subsection (3)﻿(b)﻿(iii).
5: The Commission must publish the recommendation as soon as practicable after making it, including a statement of its reasons for making the recommendation. Grocery supply code
12: Commission may make determinations for purpose of this Part (including grocery supply code)
1: The Commission may make a determination that does either or both of the following:
a: sets out a grocery supply code, which may apply to, and impose duties on, all regulated grocery retailers or related parties referred to in section 18
b: provides for the disapplication of that code in accordance with section 15
i: exempting a specified regulated grocery retailer or related party, or class of regulated grocery retailers or related parties, from any provision or provisions of the code:
ii: providing that the trading relationships of a specified supplier or class of suppliers are not covered (in whole or in part) by any provision or provisions of the code.
2: The Commission must consider the purpose of the grocery supply code set out in section 16
3: However, see clause 4
4: A determination 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 The maker must publish it in accordance with the Legislation (Publication) Regulations 2021 LA19 s 74(1)﻿(aa) 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.
13: Process for making determination for purpose of this Part
1: The Commission may use any process that it considers appropriate to develop a determination under section 12
a: publish a draft determination; and
b: publish a statement of its reasons for proposing to make a determination; and
c: consult persons, or representatives of the persons, that the Commission considers will be substantially affected by the determination.
2: The Commission’s consultation about a determination that sets out a grocery supply code must include consultation about a draft code and the matters referred to in section 196(1)﻿(e)
14: Process requirements do not apply to certain amendments
1: Section 13
a: the nature of the amendment is technical and non-controversial; or
b: the amendment is necessary or desirable to ensure that the determination is consistent with any other determination made under this Act; or
c: it is necessary or desirable in the public interest that the amendment be made urgently.
2: If the Commission relies on subsection (1)﻿(c),—
a: the Commission must publish a statement of its reasons for acting under that paragraph; and
b: the amendment must be treated as revoked 9 months after it comes into force, unless it is earlier revoked (but this paragraph does not prevent the Commission from making the amendment again).
15: Requirements for disapplication of code
1: The Commission must, before making a determination under section 12(1)﻿(b)
a: doing so is necessary or desirable in order to promote the purpose of this Act; and
b: the disapplication is unlikely to have the purpose, effect, or likely effect of unduly hindering or obstructing a supplier or class of suppliers from participating confidently in their dealings with a person to whom the code would otherwise apply; and
c: the extent of the disapplication is not broader than is reasonably necessary to address the matters that gave rise to the disapplication.
2: The Commission may make the determination on the terms and conditions (if any) that it thinks fit.
3: The determination may continue in force for not more than 5 years (and, at the close of the date that is 5 years after the determination first comes into force, the determination must be treated as having been revoked unless it is sooner revoked).
16: Purpose of grocery supply code
The purpose of the grocery supply code is to promote the purpose of this Act by—
a: promoting fair conduct, and prohibiting unfair conduct, between regulated grocery retailers, the related parties referred to in section 18
b: promoting transparency and certainty about the terms of agreements between regulated grocery retailers, the related parties referred to in section 18
c: contributing to a trading environment in the grocery industry—
i: in which businesses compete effectively and consumers and businesses participate confidently; and
ii: that includes a diverse range of suppliers.
17: Content of grocery supply code
The grocery supply code may contain any provisions that are necessary or desirable to promote the purpose of the code in connection with the supply of groceries, including to—
a: regulate or prohibit any conduct in connection with a regulated grocery retailer—
i: entering into or arriving at an agreement with a supplier (a supply agreement
ii: exercising a right or power, or complying with an obligation, under a supply agreement (whether the right, power, or obligation is exercised or complied with by a regulated grocery retailer or a supplier); or
iii: otherwise dealing with a supplier (or vice versa):
b: specify any requirements about the content or form of a supply agreement, including—
i: what terms or conditions must be included in the agreement, what terms or conditions must not be included, and what terms or conditions may only be included if certain requirements are met; and
ii: how the terms or conditions of the agreement are expressed:
c: regulate or prohibit any conduct in connection with a regulated grocery retailer supplying groceries acquired under a supply agreement to a consumer (for example, in connection with shelf-space allocation or in connection with marketing or otherwise promoting the groceries supplied under that agreement to consumers):
d: regulate or prohibit any other conduct, or specify any other requirements, in connection with the supply of groceries under a supply agreement:
e: prescribe modifications or other matters for the purposes of clause 1
18: Grocery supply code may extend to related parties of regulated grocery retailers
1: This section applies if a related party ( A
2: The grocery supply code may contain any provisions that are necessary or desirable to promote the purpose of this Act in connection with the conduct, agreements, and relationships of A in relation to suppliers and the supply of those groceries.
3: In that case, this Act must be read—
a: as if section 17(a) to (e)
b: with all other necessary modifications.
4: In this section, unless the context otherwise requires, related party
a: an associated person of the regulated grocery retailer:
b: a person ( A
5: Without limiting the ordinary meaning of the expression, a regulated grocery retailer is treated as having material influence
a: a director or senior manager of A:
b: a person that exercises or is entitled to exercise, or controls or is entitled to control the exercise of, powers that would ordinarily be exercised by a director or senior manager of A:
c: a person that can appoint or remove, or control the appointment or removal of, a director or senior manager of A:
d: a person that has a power to influence a decision of the business that would ordinarily require the holding of the rights to vote attaching to 25% or more of the voting products of A:
e: a person that, under a trust or an agreement (whether or not the person is a party to it), may at any time have a power referred to in paragraph (d).
19: Obligation to comply with grocery supply code
1: A regulated grocery retailer must comply with the grocery supply code.
2: A related party referred to in section 18
3: A person that contravenes this section is liable to a civil liability remedy (including an order to pay a pecuniary penalty or compensation). Guidance note
See subpart 3
20: Commission must review and report on grocery supply code
1: The Commission must—
a: complete a first review of the grocery supply code within 2 years after the date on which the code comes into force; and
b: give the Minister a report on that review as soon as practicable after completing it.
2: After the first review, the Commission—
a: must review the grocery supply code and give the Minister a report on that review at any subsequent time required by the Minister; and
b: may review the grocery supply code and give the Minister a report on that review at any other time.
3: The Commission must ensure that there is an interval of no more than 5 years between the completion of reviews.
4: The purpose of a review is to—
a: assess the operation and effectiveness of the grocery supply code; and
b: assess whether the grocery supply code should be amended, revoked, or replaced.
5: The Commission—
a: may give the Minister a report under this section as a separate report or as part of its annual report under section 175
b: at least 10 working days later, must publish the report.
3: Wholesale supply of groceries
1: Preliminary
21: Purpose of this Part
The purpose of this Part is to promote the purpose of this Act by enabling wholesale customers to—
a: have reliable and cost-effective wholesale supplies of groceries (either through wholesale supply provided by regulated grocery retailers, directly arranging supply from suppliers, or other channels, or any combination of those channels); and
b: have reasonable access to the benefits of the scale, and the efficiency, of operations of regulated grocery retailers and their associated persons.
22: Overview of regulation of wholesale supply of groceries
1: Subpart 2
2: Most of the rest of this Part provides for additional regulation for the wholesale supply of groceries. The process for imposing additional regulation involves the following:
a: the Commission may hold an inquiry under subpart 3
b: if the Commission is satisfied of the matters in section 65(1) subpart 4
i: a requirement for 1 or more regulated grocery retailers to establish, implement, and maintain a wholesale framework for the wholesale supply of groceries. A framework provides transparency about how a regulated grocery retailer will make decisions about price, range, quantity, frequency, and terms and conditions in connection with the wholesale supply of groceries:
ii: a grocery wholesale industry participation code. The code provides rules in connection with the wholesale supply of groceries provided by regulated grocery retailers:
c: the Commission may recommend to the Minister that additional regulation be imposed by an Order in Council under subpart 5
d: if the Minister is satisfied of the matters in section 82(1) subpart 5
i: a requirement for 1 or more regulated grocery retailers to supply groceries at wholesale on non-discriminatory terms. This ensures that a regulated grocery retailer does not treat wholesale customers differently from how it treats itself or its associated persons or any other wholesale customer, except in limited circumstances:
ii: a requirement for 1 or more regulated grocery retailers to supply groceries at wholesale in accordance with specified access terms regulation. This ensures that a regulated grocery retailer supplies groceries at wholesale on regulated terms and conditions (whether relating to price, range, quantity, frequency, or any other matter):
e: the Commission must make a determination under subpart 6 subpart 5
3: Regulations may be made under subpart 8
4: This Part also provides for requirements to apply in relation to the supply of services that are ancillary to the wholesale supply of groceries.
5: This section is intended only as a guide to the general scheme and effect of this Part.
23: Main principle of this Part
1: In deciding whether to perform or exercise their functions, powers, or duties under this Part, and in performing or exercising them, the Commission and the Minister must take into account the main principle of this Part.
2: The main principle is the importance of wholesale offerings to wholesale customers (including by regulated grocery retailers) being consistent with wholesale offerings provided in a competitive wholesale market.
24: Other principles of this Part
1: In deciding whether to perform or exercise their functions, powers, or duties under this Part, and in performing or exercising them, the Commission and the Minister must also take into account the following principles to the extent that the Commission or Minister considers them relevant to the main principle: Pricing
a: the desirability that each regulated grocery retailer’s wholesale prices reflect efficient costs, taking into account the following:
i: the costs of the regulated grocery retailer and its associated persons when buying groceries from suppliers, using the scale of operations of the regulated grocery retailer and its associated persons:
ii: the efficiency of operations of the regulated grocery retailer and its associated persons:
iii: the regulated grocery retailer’s reasonable expectation of recovering its efficient costs, including a reasonable return on investments made in connection with a wholesale offering:
b: the desirability that wholesale customers have reasonable access to any discounts, payments, or rebates made available to a regulated grocery retailer directly or indirectly by, or on behalf of, a supplier in connection with either or both of the following:
i: the scale of operations of the regulated grocery retailer and its associated persons:
ii: the efficiency of operations of the regulated grocery retailer and its associated persons: Range, quantity, and frequency
c: the desirability that each regulated grocery retailer’s wholesale offering provides reliable and cost-effective access to the range of wholesale groceries, at the quantity and frequency, that are or are likely to be demanded by wholesale customers ( see Quality
d: the desirability that the quality of groceries supplied under each regulated grocery retailer’s wholesale offering, and the quality of any ancillary service, is reasonable, having regard to the price of the groceries or the charge for the service: Clear market signals
e: the desirability that regulated grocery retailers, suppliers, and wholesale customers operate in an efficient wholesale market in which reliable, clear, and comparable information about wholesale supply and demand is available:
f: the desirability of regulated grocery retailers, suppliers, and wholesale customers being able to invest and innovate for the long-term benefit of consumers: Commercial relationships
g: the desirability of regulated grocery retailers and suppliers acting in a way that does not unduly hinder or obstruct wholesale customers and suppliers from developing and maintaining their own trading relationships for any commercial purpose, including—
i: for the purpose of negotiating agreements for promotion and marketing; and
ii: for the purpose of negotiating direct supply agreements:
h: the desirability of suppliers retaining reasonable control over the channels for the retail sale of their own products and brands: Diversity
i: the desirability of the grocery industry including a diverse range of suppliers and wholesale customers.
2: When taking into account the principle in subsection (1)﻿(c), the Commission or Minister must have regard to other reasonably available channels of supply of groceries to wholesale customers (for example, wholesale customers directly arranging supply from suppliers).
25: Interpretation in this Part
1: In this Part, unless the context otherwise requires,— additional regulation
a: a requirement under subpart 4
b: a wholesale code under subpart 4
c: a requirement under subparts 5 6
d: a requirement under subparts 5 6 ancillary services arrange non-discrimination operational separation
a: includes the way in which business units are managed or structured, and the type of relationships, dealings, and transactions the units have:
b: does not include a requirement that any business unit must be operated by different owners:
c: may include business units being operated in different companies but only if the regulated grocery retailer wishes regulated grocery retailer section 26 supply agreement wholesale agreement see also wholesale code subpart 4 wholesale customer wholesale supply request section 34
2: For the purposes of this Part, a regulated grocery retailer supplies groceries if it—
a: supplies (or resupplies) the groceries by way of sale or exchange; or
b: arranges an agreement for the supply (or resupply) of the groceries by way of sale or exchange to 1 or more other persons. Example
A regulated grocery retailer ( A it purchases groceries from suppliers and on-sells those groceries to its franchisees: it arranges agreements under which suppliers sell groceries to its franchisees. A is treated as supplying groceries in both cases. If A is required to supply groceries at non-discriminatory terms, A must not treat its franchisees differently from other wholesale customers in relation to either of those ways of supplying groceries (except to the extent that a particular difference in treatment is objectively justifiable and does not lessen, and is unlikely to lessen, competition in any grocery market).
3: For the purposes of this Part, if ancillary services are or may be supplied by a regulated grocery retailer in connection with the wholesale supply of groceries under a wholesale agreement, the agreement for the supply of the ancillary services must be treated as forming part of the wholesale agreement.
26: Grocery retailers that have wholesale supply obligations
In this Part, regulated grocery retailer
a: Foodstuffs North Island Limited:
b: Foodstuffs South Island Limited:
c: Woolworths New Zealand Limited:
d: a person that is designated as a regulated grocery retailer under section 27
e: a person that is any of the following in relation to a person ( A
i: a person that is an interconnected body corporate of A:
ii: a person that is a successor to A:
iii: a person that is a franchisee of A:
iv: a person that is a transacting shareholder of A.
27: Power to designate grocery retailer as having wholesale supply obligations
1: The Governor-General may, on the recommendation of the Minister, make an Order in Council designating a person as a regulated grocery retailer for the purpose of this Part.
2: The order may specify periods for the purposes of sections 36(2)﻿(c) 38(4)﻿(c) 44(2)﻿(c)
3: 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.
28: Minister’s recommendation for designation under this Part
1: The Minister may recommend that a person ( A
a: the Commission has given the Minister a recommendation about whether A should be designated; and
b: the Minister has had regard to the Commission’s recommendation; and
c: A has been carrying on business as a grocery retailer in the whole or any part of New Zealand for 5 years or more.
2: In deciding whether to make a recommendation, the Minister may do any of the following:
a: accept the Commission’s recommendation that A be designated if the Minister is satisfied that the criteria set out in section 29(2)﻿(c)
b: reject the Commission’s recommendation that A be designated:
c: request that the Commission reconsider any matter (such as an error, an oversight, or competing policy interests):
d: reject the Commission’s recommendation that A not be designated and decide to recommend that A be designated if the Minister considers it is in the public interest:
e: accept the Commission’s recommendation that A not be designated.
3: For the purposes of subsection (1)﻿(c), A must be treated as carrying on a business referred to in that paragraph for 5 years or more if—
a: A acquires (directly or indirectly) the whole or any significant part of the business of a regulated grocery retailer referred to in section 26(a) to (d)
b: a significant number of the franchisees or transacting shareholders of a regulated grocery retailer referred to in section 26(a) to (d)
29: Commission’s recommendation about designation under this Part
1: This section applies when the Commission is deciding what recommendation to give to the Minister about whether a person ( A
2: The Commission must—
a: publish a statement of its reasons for proposing to make a recommendation; and
b: consult the persons, or the representatives of the persons, that the Commission considers will be substantially affected by the recommendation (including A); and
c: be satisfied that—
i: A carries on, or is likely to carry on, a business of supplying all or a majority of categories of groceries to consumers; and
ii: the designation of A as a regulated 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 A supplies, or is likely to supply, groceries in competition with 1 or more regulated grocery retailers.
3: The Commission must publish the recommendation as soon as practicable after making it, including a statement of its reasons for making the recommendation.
30: Application of Part to groups
Sections 31 to 33
a: a person ( A section 26(a) to (d)
b: each person ( B
i: an interconnected body corporate of A:
ii: a franchisee of A:
iii: a transacting shareholder of A.
31: Main regulated grocery retailer must take reasonable steps to ensure compliance
1: If a person B is subject to a duty under this Part, A must—
a: take all reasonable steps to ensure that B complies with the duty; or
b: perform the duty on B’s behalf.
2: If B contravenes any civil liability provision as a result of failing to comply with a duty under this Part, A must be treated as also having contravened the civil liability provision.
3: Subsection (2) does not apply if A proves that it complied with subsection (1)﻿(a).
32: Defence if interconnected body, franchisee, or transacting shareholder reasonably relies on main regulated grocery retailer
1: This section applies to a proceeding under subpart 3
2: It is a defence if B proves that—
a: the contravention was due to the act or default of A; and
b: B reasonably believed that A would perform the duty on B’s behalf; and
c: B took all reasonable steps to ensure that the duty was complied with.
33: Order in Council or determination may prescribe how powers or duties must or may be performed or exercised within group
1: An Order in Council or a determination made under this Part may prescribe that, for the purposes of 1 or more provisions of this Part, powers or duties may or must be exercised or performed by—
a: A; or
b: 1 or more persons that are a person B; or
c: both A and 1 or more persons that are a person B.
2: An Order in Council or a determination made under this Part may also prescribe that a power or duty that is exercised or performed in accordance with subsection (1) must be treated as being exercised or performed by—
a: A; or
b: 1 or more persons that are a person B; or
c: both A and 1 or more persons that are a person B.
3: Sections 31 32
2: Requirements for facilitating commercial agreements for wholesale supply of groceries
34: Wholesale customer may make wholesale supply request
1: A wholesale customer may make a request to a regulated grocery retailer for the wholesale supply of groceries and any ancillary services (a wholesale supply request
2: The wholesale supply request must be made in the manner (if any) prescribed by a determination made under this subpart.
35: Regulated grocery retailer must consider wholesale supply request in good faith
1: A regulated grocery retailer must consider a wholesale supply request in good faith (including negotiating in good faith).
2: The duty under subsection (1) includes requiring the regulated grocery retailer to—
a: consider the request in a reasonable manner; and
b: respond to communications from the wholesale customer in a timely manner; and
c: ensure that communications about the request are not false or misleading, and are not likely to mislead or confuse, in a material particular.
3: Subsection (2) does not limit subsection (1).
36: Regulated grocery retailer must establish and implement rules, criteria, and procedures for considering wholesale supply requests
1: A regulated grocery retailer must—
a: establish and implement effective rules, criteria, and procedures for considering wholesale supply requests; and
b: give a copy of those rules, criteria, and procedures to the Commission; and
c: publish a copy of those rules, criteria, and procedures.
2: A regulated grocery retailer must comply with subsection (1)—
a: within 2 months after this section comes into force if it is a regulated grocery retailer on the day on which this section comes into force; or
b: within 6 months after it becomes a regulated grocery retailer under section 26(e) section 27
c: within the period specified in an Order in Council made under section 27
37: Regulated grocery retailer must comply with ongoing duties relating to rules, criteria, and procedures
A regulated grocery retailer must—
a: take all reasonable steps to comply with the rules, criteria, and procedures referred to in section 36
b: regularly review and, if necessary, amend those rules, criteria, and procedures to ensure that they continue to comply with this Act (including the requirements of any determination made under this subpart).
38: Regulated grocery retailer must establish and implement standard terms and conditions and principles for wholesale supply
1: A regulated grocery retailer must,—
a: to the extent that is reasonably practicable, establish and implement standard terms and conditions for the wholesale supply of groceries; and
b: to the extent that particular terms and conditions for the wholesale supply of groceries are not standardised (for example, price), establish principles for determining the basis on which the regulated grocery retailer will make offers, or respond to offers, in relation to those terms and conditions; and
c: give a copy of those standard terms and conditions, and those principles, to the Commission; and
d: publish a copy of those standard terms and conditions and those principles.
2: A regulated grocery retailer may establish and implement different standard terms and conditions that apply in different circumstances (unless a determination made under this Part provides otherwise).
3: A regulated grocery retailer is not required to publish particular information under subsection (1)﻿(d) if it considers on reasonable grounds that the information is commercially sensitive (unless a determination made under this Part provides otherwise).
4: A regulated grocery retailer must comply with subsection (1)—
a: within 2 months after this section comes into force if it is a regulated grocery retailer on the day on which this section comes into force; or
b: within 6 months after it becomes a regulated grocery retailer under section 26(e) section 27
c: within the period specified in an Order in Council made under section 27
39: Regulated grocery retailer must comply with ongoing duties relating to standard terms and conditions and principles
A regulated grocery retailer must—
a: take all reasonable steps to use the standard terms and conditions referred to in section 38
b: to the extent that particular terms and conditions are not standard, take all reasonable steps to use terms and conditions that are consistent with the principles referred to in section 38
c: regularly review and, if necessary, amend those standard terms and conditions and those principles to ensure that they continue to comply with this Act (including the requirements of any determination made under this subpart).
40: Regulated grocery retailer must notify Commission of wholesale supply request
1: A regulated grocery retailer must—
a: notify the Commission of each wholesale supply request that it has received; and
b: notify the Commission of the outcome of the wholesale supply request; and
c: if the regulated grocery retailer accepts the wholesale supply request, give the Commission a copy of each wholesale agreement; and
d: if the regulated grocery retailer declines the wholesale supply request, notify the Commission of the reasons for declining the request.
2: The regulated grocery retailer must comply with subsection (1)—
a: within 1 month after the request is received, the outcome is determined, or the request is accepted or declined (as the case may be); or
b: within a shorter or longer period prescribed in a determination made under this subpart.
41: Regulated grocery retailer must notify Commission of variation or cancellation
1: If a wholesale agreement is varied, the regulated grocery retailer must, as soon as practicable,—
a: notify the Commission of—
i: the variation; and
ii: the reasons for the variation; and
b: give the Commission a copy of the variation or the agreement as varied.
2: If a wholesale agreement is cancelled, the regulated grocery retailer must, as soon as practicable, notify the Commission of—
a: the cancellation; and
b: the reasons for the cancellation (to the extent that the regulated grocery retailer knows the reasons).
3: The regulated grocery retailer must comply with this section—
a: within 1 month after the agreement is varied or cancelled (as the case may be); or
b: within a shorter or longer period prescribed in a determination made under this subpart.
42: Regulated grocery retailer must ensure transparency of wholesale agreement
A regulated grocery retailer must ensure that each wholesale agreement—
a: is in writing; and
b: is expressed in plain language in a clear, concise, and intelligible manner.
43: Regulated grocery retailer must ensure transparent pricing under wholesale agreement
1: A regulated grocery retailer must ensure that—
a: each wholesale agreement specifies a method or methods (a pricing or charging method
b: the prices of groceries, and the charges for ancillary services, supplied under the wholesale agreement are calculated using a pricing or charging method.
2: A regulated grocery retailer must not vary a pricing or charging method specified in a wholesale agreement, except—
a: in a manner that is beneficial to the wholesale customer; or
b: in accordance with a determination issued under this subpart; or
c: in a manner that is not to the detriment of the wholesale customer and has the wholesale customer’s agreement.
44: Regulated grocery retailer must put in place systems and processes for wholesale supply
1: A regulated grocery retailer must establish and implement effective systems and the processes that are necessary or desirable to supply wholesale groceries to wholesale customers (for example, systems for ordering, billing, and managing confidentiality arrangements).
2: A regulated grocery retailer must comply with subsection (1)—
a: within 3 months after this section comes into force if it is a regulated grocery retailer on the day on which this section comes into force; or
b: within 6 months after it becomes a regulated grocery retailer under section 26(e) section 27
c: within the period specified in an Order in Council made under section 27
3: A regulated grocery retailer must maintain those systems and processes.
45: Regulated grocery retailer must ensure that its wholesale agreements and conduct do not hinder or obstruct trading relationships
1: A regulated grocery retailer—
a: must ensure that its wholesale agreements do not unduly hinder or obstruct a wholesale customer from developing or maintaining its own trading relationship with any supplier; and
b: must not engage in any conduct that has the purpose, effect, or likely effect of unduly hindering or obstructing—
i: a wholesale customer from developing or maintaining its own trading relationship with any supplier; or
ii: a supplier from developing or maintaining a trading relationship with any wholesale customer; and
c: must not engage in any conduct that has the purpose, effect, or likely effect of—
i: unduly hindering or obstructing a supplier from participating in a wholesale offering; or
ii: inducing a supplier to refuse or fail to sell any groceries in connection with a wholesale offering; or
iii: inducing a supplier to opt out under section 87
2: In this section and section 46 wholesale customer A
a: has the meaning set out in section 25(1)
b: does not include a member of the same group as A (unless a determination made under this subpart provides otherwise).
3: In subsection (2) and section 49(1) group section 30
46: Regulated grocery retailer must not engage in certain conduct relating to supplier discounts, payments, or rebates
1: A regulated grocery retailer must not engage in conduct that has the purpose, effect, or likely effect of preventing or restricting a wholesale customer from receiving (directly or indirectly) the benefits of a range-, quantity-, or frequency-based discount, payment, or rebate.
2: In this section, range-, quantity-, or frequency-based discount, payment, or rebate
a: in connection with either or both of the following:
i: the scale of operations of the regulated grocery retailer and its associated persons:
ii: the efficiency of operations of the regulated grocery retailer and its associated persons; and
b: that meets the requirements specified in a determination made under this subpart (if any).
47: Regulated grocery retailer must comply with determination
A regulated grocery retailer must comply with a duty under sections 35 to 46
48: Civil liability for contraventions
A person that contravenes any of sections 35 to 47 Guidance note
See subpart 3
49: Commission may prescribe manner of complying with duty
1: The Commission may make a determination prescribing the manner in which a person must comply with a duty under section 34(2) sections 35 to 46
a: when, where, and how the duty must be complied with:
b: what information or other evidence or documents must be provided in connection with the duty:
c: requirements with which information, evidence, or documents that are provided in connection with the duty must comply:
d: matters for the purposes of section 38(3)
e: how a regulated grocery retailer may vary a pricing or charging method specified in a wholesale agreement ( see section 43
f: for the purposes of section 45 46
g: requirements for the purposes of section 46(2)﻿(b)
h: modifications for the purposes of clause 2
2: The Commission may make the determination only if the Commission is satisfied that it is necessary or desirable in order to promote the purpose of this Part.
3: A determination 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 The maker must publish it in accordance with the Legislation (Publication) Regulations 2021 LA19 s 74(1)﻿(aa) 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.
50: Commission may grant exemption
1: The Commission may make a determination that exempts any person or class of persons from compliance with any provision or provisions of this subpart if the Commission is satisfied that—
a: doing so is necessary or desirable in order to promote the purpose of this Part; and
b: the extent of the exemption is not broader than is reasonably necessary to address the matters that gave rise to the exemption.
2: The Commission may grant the exemption on the terms and conditions (if any) that it thinks fit.
3: The Commission’s reasons for making the determination (including why the exemption is appropriate) must be published together with the determination.
4: A determination made under this section may continue in force for not more than 5 years (and at the close of the date that is 5 years after the determination first comes into force, the determination must be treated as having been revoked unless it is sooner revoked).
5: A determination 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 The maker must publish it in accordance with the Legislation (Publication) Regulations 2021 LA19 s 74(1)﻿(aa) 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.
51: Process for making determination under this subpart
The Commission may use any process that it considers appropriate to develop a determination under this subpart, but must—
a: publish a draft determination; and
b: publish a statement of its reasons for proposing to make a determination; and
c: consult persons, or representatives of the persons, that the Commission considers will be substantially affected by the determination.
52: Process requirements do not apply to certain amendments
1: Section 51(a) to (c)
a: the nature of the amendment is technical and non-controversial; or
b: the amendment is necessary or desirable to ensure that the determination is consistent with any other determination made under this Part; or
c: it is necessary or desirable in the public interest that the amendment be made urgently.
2: If the Commission relies on subsection (1)﻿(c),—
a: the Commission must publish a statement of its reasons for acting under that paragraph; and
b: the amendment must be treated as revoked 9 months after it comes into force, unless it is earlier revoked (but this paragraph does not prevent the Commission from making the amendment again).
53: Duties do not apply to extent that they are inconsistent with additional regulation
A duty under this subpart that would otherwise apply to a person does not apply to the extent that it is inconsistent with a duty that applies to the person under subparts 4 to 6
54: Duties do not apply if additional regulation so provides
A duty under this subpart that would otherwise apply to a person does not apply if a determination made under subpart 4 6
3: Commission inquiries
55: How inquiry is triggered
1: The Commission—
a: must carry out an inquiry if required to do so by the Minister; and
b: may carry out an inquiry on its own initiative (whether when preparing a report under section 175
2: Any requirement by the Minister must—
a: be in writing; and
b: specify the date by which the Commission must give a report under section 60
56: Commission may inquire into whether and what additional regulation should apply
1: The purpose of an inquiry is for the Commission to consider the following:
a: whether the wholesale supply of groceries and any ancillary services should be subject to additional regulation and, if so, what additional regulation should apply:
b: if additional regulation already applies, whether the additional regulation should be amended, revoked, or replaced and, if so, how the additional regulation should be amended, revoked, or replaced:
c: whether any other regulation or action may be necessary or desirable to promote the purpose of this Act.
2: However,—
a: the Commission may make a determination under subpart 4
b: see sections 83(2) 84 subpart 5
57: Commission inquiry
1: In carrying out an inquiry, the Commission must consider—
a: whether any of the tests in section 65(1) 82(1)
b: if the test or tests are satisfied (or are still satisfied), whether the wholesale supply of groceries and any ancillary services should be subject to (or should continue to be subject to) additional regulation; and
c: if so, what additional regulation should apply (or continue to apply), including—
i: which type or types of regulation should apply (or continue to apply); and
ii: which regulated grocery retailers should be subject to the additional regulation; and
d: if requested by the Minister, whether the test in section 112(1)﻿(a)
2: The Commission may also consider either or both of the following:
a: how a type or types of additional regulation should apply (or continue to apply):
b: whether any other regulation or action may be necessary or desirable to promote the purpose of this Act ( see section 58(2)
3: As part of an inquiry, the Commission must, when considering the matters under subsection (1)﻿(b) or (c),—
a: assess the benefits of applying (or continuing) different types of additional regulation; and
b: consider what would be the most cost-effective type or types of additional regulation in the circumstances.
4: The Commission may have regard to any other matters it considers necessary or desirable for the purpose of the inquiry.
5: Despite section 56 section 112(1)﻿(a)
a: the purpose of the inquiry is limited to considering that matter; and
b: subsections (1)﻿(a) to (c) and (3) and section 58(1)﻿(b) and (c)
58: Preparation of report
1: The Commission must prepare a report that—
a: records its findings from the inquiry; and
b: sets out whether the Commission intends to impose, amend, revoke, or replace—
i: any additional regulation under subpart 4
ii: any determination under subpart 6
c: sets out any recommendation to the Minister in relation to an Order in Council under subpart 5
d: sets out any recommendation to the Minister in relation to regulations under subpart 8
2: The Commission may include other recommendations that it thinks fit, including recommendations about 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 amount or type of information made available by a person in relation to the grocery industry:
d: a person researching or monitoring a specified matter:
e: persons within the grocery industry changing their behaviour.
59: Consultation on draft report
1: Before a report on the inquiry is finalised, the Commission must—
a: publish a draft report; 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.
60: Commission must give report to Minister and publish it
The Commission must—
a: give the final report on the inquiry to the Minister as soon as practicable after completing it (whether as a separate report or as part of its annual report under section 175
b: at least 10 working days later, publish the final report.
61: Minister must present report to House of Representatives
The Minister must, within 1 month after receiving the final report, present the report to the House of Representatives.
62: How Minister must or may respond to Commission’s recommendation
1: The Minister—
a: must have regard to any recommendation made to the Minister in the final report; and
b: may do 1 or more of the following:
i: accept the recommendation in whole or in part:
ii: reject the recommendation in whole or in part:
iii: request the Commission to reconsider or clarify the recommendation in whole or in part.
2: The Commission must comply with a request made under subsection (1)﻿(b)﻿(iii) within a period and in a manner agreed between the Commission and the Minister.
63: Minister must publish Government’s response
1: The Minister must, within a reasonable time after receiving a final report,—
a: publish a response to the report that sets out the Government’s intentions in relation to the report (including the Minister’s intentions under section 62(1)﻿(b)
b: present the response to the House of Representatives.
2: This section does not apply if the final report contains no recommendations.
4: Commission may impose additional regulation (wholesale frameworks and wholesale code)
64: Commission may impose additional regulation
1: The Commission may make a determination that does 1 or more of the following:
a: requires 1 or more regulated grocery retailers to establish, implement, and maintain, in the manner set out in the determination, a framework for the wholesale supply of groceries and any ancillary services (a wholesale framework
b: sets out a grocery wholesale industry participation code (the wholesale code
c: provides that a wholesale framework is not required to include a matter under section 70(1)﻿(a) or (b)
d: provides for matters under section 70(3)
e: provides, for the purposes of section 54 subpart 2
f: provides for when a regulated grocery retailer is allowed to act under section 114
g: prescribes modifications or other matters for the purposes of clause 1
2: A wholesale code may apply to, and impose duties on, any of the following:
a: all regulated grocery retailers, a particular regulated grocery retailer, or a class of regulated grocery retailers:
b: all wholesale customers, a particular wholesale customer, or a class of wholesale customers.
3: The following applies to a determination under subsection (1)﻿(e) that disapplies a duty to a specified person or class of persons:
a: the Commission may make the determination only if the Commission (in addition to being satisfied of the matters in section 65(1)
b: the duty may be disapplied subject to the terms and conditions that the Commission thinks fit (if any).
4: A determination 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 The maker must publish it in accordance with the Legislation (Publication) Regulations 2021 LA19 s 74(1)﻿(aa) 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.
65: Test for additional regulation (wholesale frameworks and wholesale code)
1: The Commission may make a determination under this subpart only if it is satisfied—
a: that doing so is necessary or desirable in order to promote the purpose of this Part; and
b: that—
i: 1 or more of the paragraphs in subsection (2) apply; or
ii: the wholesale offerings of groceries provided by 1 or more regulated grocery retailers (in relation to any 1 or more of price, range, quantity, frequency, or any terms and conditions) are not consistent with wholesale offerings provided in a competitive wholesale market.
2: For the purposes of subsection (1)﻿(b)﻿(i), the paragraphs are as follows:
a: a regulated grocery retailer has failed to do either or both of the following within 3 months after subpart 2
i: comply with section 36(1)
ii: comply with section 38(1)
b: a regulated grocery retailer has failed to comply with section 44(1) subpart 2
c: on the first anniversary of subpart 2 A
i: 1 or more wholesale customers have made wholesale supply requests to A; and
ii: 1 or more of those wholesale customers have taken all reasonable steps to enter into or arrive at a wholesale agreement with A but have been unable to do so within a reasonable period of time:
d: on the first anniversary of subpart 2
i: a regulated grocery retailer has entered into 1 or more wholesale agreements; but
ii: those wholesale agreements do not materially contribute towards achieving the purpose of this Part.
3: Subsection (2)﻿(c) and (d) does not apply to a regulated grocery retailer ( A
a: A has taken all reasonable steps to enter into or arrive at 1 or more wholesale agreements that materially contribute towards achieving the purpose of this Part; but
b: A has failed to do so—
i: because 1 or more wholesale customers have entered into or arrived at agreements for the wholesale supply of groceries with 1 or more other persons; or
ii: because of some other cause beyond A’s control.
4: If the Commission is satisfied that a regulated grocery retailer has seriously or persistently contravened 1 or more of the duties in sections 35 37 39 43 to 47
5: Before making a determination under this subpart, the Commission must have regard to whether any matter dealt with in the determination would be more appropriately dealt with by way of an Order in Council under subpart 5 subpart 6
66: Commission may act in relation to regulated grocery retailer even if retailer complies with subpart 2
1: If the Commission is satisfied under section 65(1)﻿(b)﻿(i) A
a: A; or
b: A and some or all other regulated grocery retailers (regardless of whether the other regulated grocery retailers have failed to comply with any obligations under subpart 2
2: If the Commission is satisfied under section 65(1)﻿(b)﻿(ii) subpart 2
67: Process for making determination under this subpart
1: The Commission may use any process that it considers appropriate to develop a determination under this subpart, but must—
a: publish a draft determination; and
b: publish a statement of its reasons for proposing to make a determination; and
c: consult persons, or representatives of the persons, that the Commission considers will be substantially affected by a determination.
2: In the case of a determination that sets out a wholesale code, the Commission’s consultation under subsection (1)﻿(c) must include consultation about a recommendation referred to in section 196(4)﻿(b)﻿(i)
68: Process requirements do not apply to certain amendments
1: Section 67(1)﻿(a) to (c)
a: the nature of the amendment is technical and non-controversial; or
b: the amendment is necessary or desirable to ensure that the determination is consistent with any other determination made under this Part; or
c: it is necessary or desirable in the public interest that the amendment be made urgently.
2: If the Commission relies on subsection (1)﻿(c),—
a: the Commission must publish a statement of its reasons for acting under that paragraph; and
b: the amendment must be treated as revoked 9 months after it comes into force, unless it is earlier revoked (but this paragraph does not prevent the Commission from making the amendment again). Wholesale framework
69: Process for developing wholesale framework
1: A regulated grocery retailer must, within the time frame, and in the manner, specified in a determination under section 64(1)﻿(a)
a: prepare a draft wholesale framework; and
b: consult the following on the draft wholesale framework:
i: the persons, or representatives of the persons, specified in the determination; and
ii: the Commission; and
c: provide a final wholesale framework to the Commission; and
d: ensure that the final wholesale framework complies with section 70
2: A regulated grocery retailer may amend or replace its wholesale framework.
3: Requirements that apply in relation to developing the wholesale framework also apply, with all necessary modifications, in relation to its amendment or replacement.
70: Contents of wholesale framework
1: A regulated grocery retailer’s wholesale framework must—
a: set out how it will make decisions about pricing, range, quantity, frequency, and terms and conditions in connection with the wholesale supply of groceries and any ancillary services, including specifying the basis for all costs that it will use to arrive at wholesale prices for groceries and charges for ancillary services (if any); and
b: specify all inputs, assumptions, and processes in connection with those decisions; and
c: comply with all requirements set out in a direction under section 72
d: comply with all other requirements set out in the determination under section 64(1)﻿(a)
2: However, a regulated grocery retailer’s wholesale framework is not required to include a matter under subsection (1)﻿(a) or (b) if a determination made under this subpart provides that the matter is not required.
3: A regulated grocery retailer’s wholesale framework may regulate, deal with, or otherwise relate to any of the duties under sections 35 to 46
4: If a wholesale framework of a regulated grocery retailer ( A sections 35 to 46
a: a determination under section 50
b: a determination under section 64(1)﻿(e)
71: Regulated grocery retailer must comply with wholesale framework
A regulated grocery retailer must ensure that its decisions about pricing, range, quantity, frequency, and terms and conditions in connection with the wholesale supply of groceries and any ancillary services are made in accordance with its wholesale framework.
72: Commission may direct inputs, assumptions, processes, and requirements to be included, amended, or revoked
1: The Commission may, by written notice, direct a regulated grocery retailer to include, amend, or revoke any inputs, assumptions, processes, or requirements in its wholesale framework.
2: The Commission may give the direction only if—
a: it is satisfied that it is necessary or desirable to do so in order to promote the purpose of this Part; and
b: it has consulted the regulated grocery retailer.
3: The regulated grocery retailer must comply with the direction within the time frame, and in the manner, specified in the direction.
73: Civil liability for contraventions
A person that contravenes section 69 71 72(3) Guidance note
See subpart 3
74: Commission must review and report on wholesale frameworks
1: The Commission must—
a: complete a first review of each wholesale framework within 3 years after the framework comes into effect; and
b: give the Minister a report on that review as soon as practicable after completing it.
2: After the first review, the Commission—
a: must review a wholesale framework and give the Minister a report on that review at any subsequent time required by the Minister; and
b: may review a wholesale framework and give the Minister a report on that review at any other time.
3: The purpose of a review of a wholesale framework is to—
a: assess the operation and effectiveness of the wholesale framework; and
b: assess whether a determination or direction under this subpart should be made or amended, revoked, or replaced.
4: The Commission—
a: may give the Minister a report under this section as a separate report or as part of its annual report under section 175
b: at least 10 working days later, must publish the report. Wholesale code
75: Content of wholesale code
1: The wholesale code may contain any provisions that are necessary or desirable to promote the purpose of this Part, including provisions that— Wholesale agreements and conduct
a: regulate or prohibit any conduct in connection with—
i: a wholesale supply request; or
ii: entering into or arriving at a wholesale agreement; or
iii: exercising a right or power, or complying with an obligation, under a wholesale agreement (whether the right, power, or obligation is exercised or complied with by a regulated grocery retailer or a wholesale customer); or
iv: a regulated grocery retailer otherwise dealing with a wholesale customer (or vice versa):
b: specify any requirements about the content or form of a wholesale agreement, including—
i: what terms or conditions must be included in the agreement, what terms or conditions must not be included, and what terms or conditions may only be included if certain requirements are met; and
ii: how the terms and conditions of the agreement are expressed:
c: regulate or prohibit any conduct in connection with supplying groceries or any ancillary services under a wholesale agreement: Supply agreements and conduct
d: regulate or prohibit any conduct in connection with—
i: entering into or arriving at a supply agreement; or
ii: exercising a right or power, or complying with an obligation, under a supply agreement (whether the right, power, or obligation is exercised or complied with by a regulated grocery retailer or a supplier); or
iii: a regulated grocery retailer otherwise dealing with a supplier (or vice versa):
e: specify in relation to a supply agreement what terms or conditions must be included, what terms or conditions must not be included, and what terms or conditions may only be included if certain requirements are met:
f: impose any other duty on a regulated grocery retailer or supplier to ensure that they act in a manner that is consistent with—
i: the principle set out in section 24(1)﻿(b)
ii: the principle set out in section 24(1)﻿(c) General
g: regulate, deal with, or otherwise relate to any of the matters referred to in sections 34 to 46
h: impose any other duty on a regulated grocery retailer or wholesale customer to ensure that they act in a manner that is consistent with the principle set out in section 23
2: The Commission may include provisions in the wholesale code for the purposes of subsection (1)﻿(d) to (f) only if—
a: it is satisfied that the provisions are necessary or desirable to promote the principle set out in section 24(1)﻿(b)
b: it is satisfied that—
i: the conduct of suppliers (whether individually or collectively) has been, or is likely to have been, lessening competition in a wholesale or retail grocery market; and
ii: the provisions are necessary or desirable to promote the principle set out in section 24(1)﻿(c)
76: Regulated grocery retailer and supplier must comply with wholesale code
1: A regulated grocery retailer must comply with the wholesale code.
2: A supplier must comply with the provisions of the wholesale code imposed under section 75(1)﻿(d) to (f)
3: A person that contravenes this section is liable to a civil liability remedy (including an order to pay a pecuniary penalty or compensation). Guidance note
See subpart 3
77: Wholesale customer must comply with wholesale code
1: A wholesale customer must comply with the wholesale code.
2: This section is not a civil liability provision (and, accordingly, there is no civil liability remedy for a contravention of this section). However, see sections 114 115
78: Commission must review and report on wholesale code
1: The Commission must—
a: complete a first review of the wholesale code within 3 years after the code comes into force; and
b: give the Minister a report on that review as soon as practicable after completing it.
2: After the first review, the Commission—
a: must review the wholesale code and give the Minister a report on that review at any subsequent time required by the Minister; and
b: may review the wholesale code and give the Minister a report on that review at any other time.
3: The purpose of a review is to—
a: assess the operation and effectiveness of the wholesale code; and
b: assess whether the wholesale code should be amended, revoked, or replaced.
4: The Commission—
a: may give the Minister a report under this section as a separate report or as part of its annual report under section 175
b: at least 10 working days later, must publish the report. When duties do not apply
79: Duties do not apply to extent that they are inconsistent with other additional regulation
A duty under this subpart that would otherwise apply to a person does not apply to the extent that it is inconsistent with a duty that applies to the person under subparts 5 6
80: Duties do not apply if additional regulation so provides
A duty under this subpart that would otherwise apply to a person does not apply if a determination made under subpart 6
5: Order in Council (non-discriminatory terms and specified access terms)
81: Order in Council may require regulated grocery retailers to supply wholesale customers
1: The Governor-General may, on the recommendation of the Minister, make an Order in Council that does 1 or more of the following in relation to the wholesale supply of groceries to wholesale customers:
a: requires 1 or more regulated grocery retailers to supply groceries, or specified classes of groceries, on non-discriminatory terms in accordance with a determination made under section 88
b: requires 1 or more regulated grocery retailers to supply groceries, or specified classes of groceries, in accordance with specified access terms regulation (as specified in a determination made under section 93
c: imposes requirements to facilitate the operation of any requirements under paragraph (a) or (b), including any accounting, financial reporting, and operational separation requirements:
d: prescribes modifications or other matters for the purposes of clause 1
2: In this section, a reference to the supply of groceries or classes of groceries includes the supply of any ancillary services or classes of ancillary services.
3: 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.
82: Test for additional regulation (non-discriminatory terms and specified access terms regulation)
1: The Minister may recommend that an Order in Council be made under this subpart only if the Minister is satisfied that—
a: making the order is necessary or desirable in order to promote the purpose of this Part; and
b: the wholesale offerings of groceries provided by 1 or more regulated grocery retailers (in relation to any 1 or more of price, range, quantity, frequency, or any terms or conditions) are not consistent with wholesale offerings provided in a competitive wholesale market.
2: If the Minister is satisfied that a regulated grocery retailer has seriously or persistently contravened 1 or more of the duties in sections 35 37 39 43 to 47
3: However, the Minister may recommend that the order applies to 1, some, or all regulated grocery retailers regardless of whether any of those regulated grocery retailers have failed to comply with any duties under subpart 2
83: Order may be made only after inquiry
1: In addition to the requirements of section 82
a: the Commission has carried out an inquiry under subpart 3 section 60
b: the Minister has had regard to the recommendations made to the Minister in the final report (as required by section 62(1)﻿(a)
c: in a case where the Minister makes a request under section 84(2)
2: However, the Minister may make a recommendation regardless of whether the Commission has recommended that an Order in Council be made ( see section 84
84: Minister’s decision on additional regulation under this subpart may be same as, or different from, Commission’s recommendation
1: The Minister’s decision on whether to make a recommendation for an Order in Council under this subpart may be the same as, or different from, the Commission’s recommendation in relation to additional regulation under this subpart (if any).
2: However, if the Minister proposes, contrary to the recommendation of the Commission, to make a recommendation for an Order in Council, the Minister must request that the Commission give written advice on what the material provisions of the determination under subpart 6
3: The Minister must publish a request under subsection (2) and the Commission’s advice given following the request.
4: In addition, if the Minister’s final decision is different from the Commission’s recommendation, the Minister must set out in the response under section 63
85: Inquiry requirements do not apply to certain amendments
1: Section 83
a: the nature of the amendment is technical and non-controversial; or
b: it is necessary or desirable in the public interest that the amendment be made urgently.
2: If the Minister relies on subsection (1)﻿(b),—
a: the Minister must publish a statement of the Minister’s reasons for acting under that paragraph; and
b: the amendment must be treated as revoked 9 months after it comes into force, unless it is earlier revoked (but this paragraph does not prevent an Order in Council from making the amendment again).
86: Regulated grocery retailer must comply with Order in Council and associated determinations
1: A regulated grocery retailer must comply with the following:
a: an Order in Council made under this subpart; and
b: a determination made under subpart 6
2: A person that contravenes this section is liable to a civil liability remedy (including an order to pay a pecuniary penalty or compensation). Guidance note
See subpart 3
87: When suppliers may opt out
1: A supplier may opt out of participating in the wholesale supply of groceries under an Order in Council made under this subpart if—
a: the grounds set out in a determination for the purposes of this section apply; and
b: the supplier opts out in the manner specified in the determination.
2: The power to opt out is subject to the terms and conditions (if any) specified in a determination.
3: A supplier ceases to opt out if any of those terms and conditions are no longer complied with.
4: In this section, determination subpart 6 Example
A supplier ( S R S opts out in accordance with a determination in relation to class A. S complies with the terms and conditions referred to in subsection (2)). R’s wholesale offering in accordance with the determination is not required to include class A (but is required to include class B).
6: Determinations to support Order in Council
Non-discriminatory terms
88: Commission must make determination relating to non-discriminatory terms
1: This section applies if an Order in Council is made under section 81(1)﻿(a)
2: The Commission must, as soon as practicable after the Order in Council is made, make 1 or more determinations specifying how that requirement applies to those regulated grocery retailers.
3: A determination may regulate, deal with, or otherwise relate to 1 or more of the following matters:
a: the operational separation of a regulated grocery retailer ( A
i: requiring A to establish and maintain 1 or more business units with particular functions:
ii: providing for how those business units may or must operate (for example, requiring A to operate a business unit on a stand-alone basis, at arm’s length from any other business units):
b: A supplying groceries, or specified classes of groceries, to 1 or more wholesale customers on terms and conditions that are transparent and equivalent to terms and conditions on which A supplies itself or associated persons or other wholesale customers, except to the extent that a particular difference in treatment is objectively justifiable and does not lessen, and is unlikely to lessen, competition in any grocery market: Guidance note
See section 25(2)﻿(b)
c: A’s systems, procedures, and processes in connection with 1 or more of the following:
i: compliance with the determination and the Order in Council; and
ii: monitoring of, and reporting on, compliance with the determination and that order by an independent oversight group that has a majority of members that are independent of A; and
iii: the development of performance measures relating to compliance with the determination and that order; and
iv: audit, and other checks, of compliance with the determination and that order:
d: any other duties on A or 1 or more wholesale customers to facilitate or support the operation of any matters under paragraphs (a) to (c) (for example, duties relating to minimum standards of demand forecasting, the duration of purchases, and minimum orders):
e: matters for the purposes of section 87
i: the grounds on which and how a supplier may opt out of the wholesale supply of groceries under an Order in Council made under subpart 5
ii: the terms and conditions of that power to opt out (which may include requirements for the supplier, a regulated grocery retailer, or both):
f: when a regulated grocery retailer is allowed to act under section 114
4: A determination may prescribe modifications or other matters for the purposes of clause 1
5: In this section, a reference to the supply of groceries or classes of groceries includes the supply of any ancillary services or classes of ancillary services.
6: A determination 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 The maker must publish it in accordance with the Legislation (Publication) Regulations 2021 LA19 s 74(1)﻿(aa) 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.
89: Process for making determination for non-discriminatory terms
The Commission may use any process that it considers appropriate to develop a determination under section 88
a: publish a draft determination; and
b: publish a statement of its reasons for proposing to make a determination; and
c: consult persons, or representatives of the persons, that the Commission considers will be substantially affected by the determination.
90: Process requirements do not apply to certain amendments
1: Section 89(a) to (c)
a: the nature of the amendment is technical and non-controversial; or
b: the amendment is necessary or desirable to ensure that the determination is consistent with any other determination made under this Part; or
c: it is necessary or desirable in the public interest that the amendment be made urgently.
2: If the Commission relies on subsection (1)﻿(c),—
a: the Commission must publish a statement of its reasons for acting under that paragraph; and
b: the amendment must be treated as revoked 9 months after it comes into force, unless it is earlier revoked (but this paragraph does not prevent the Commission from making the amendment again).
91: Employees
1: This section has effect only to the extent that—
a: an employee is transferred within a regulated grocery retailer ( A
b: the determination applies this section to the employee (whether by reference to a class of employees or otherwise).
2: The following apply:
a: implementing the operational separation does not affect any employment agreement between A and an employee of A; and
b: the employee of A continues to be an employee of A and, for the purposes of every Act or other law, award, determination, and agreement relating to the employment of the employee,—
i: their employment agreement is unbroken; and
ii: the period of their service with A and every other period of service that A recognises as their continuous service continue to be recognised; and
c: the terms and conditions of the employment of the employee with A are (until varied) identical to the terms and conditions of their employment before the operational separation is implemented; and
d: the employee is not entitled to receive any payment or other benefit by reason only of A implementing the operational separation.
92: Commission must review and report on determination for non-discriminatory terms
1: The Commission must—
a: complete a first review of a determination under section 88
b: give the Minister a report on that review as soon as practicable after completing it.
2: After the first review, the Commission—
a: must review a determination under section 88
b: may review that determination and give the Minister a report on that review at any other time.
3: The purpose of a review of a determination under section 88
a: assess the operation and effectiveness of the determination; and
b: assess whether the determination should be amended, revoked, or replaced.
4: The Commission—
a: may give the Minister a report under this section as a separate report or as part of its annual report under section 175
b: at least 10 working days later, must publish the report.
5: This section does not apply to a determination that only amends or revokes another determination. Specified access terms regulation
93: Commission must make determination for specified access terms regulation
1: This section applies if an Order in Council is made under section 81(1)﻿(b)
2: The Commission must, as soon as practicable after the Order in Council is made, make 1 or more determinations specifying how the specified access terms regulation applies to those regulated grocery retailers.
3: A determination 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 The maker must publish it in accordance with the Legislation (Publication) Regulations 2021 LA19 s 74(1)﻿(aa) 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.
94: Content of determination for specified access terms regulation
1: A determination under section 93
a: specify sufficient terms and conditions to ensure that—
i: a regulated grocery retailer makes available the wholesale supply of groceries without the need for a wholesale customer to enter into an agreement with the regulated grocery retailer; and
ii: the wholesale supply of groceries is made available within the time frames specified under paragraph (c); and
b: identify the wholesale customers or classes of wholesale customers that are eligible to make a request to a regulated grocery retailer for the wholesale supply of groceries under the determination; and
c: state the time frames within which a regulated grocery retailer must make available the wholesale supply of groceries under the determination; and
d: specify the duration of the determination, which must be not more than 7 years (but see
2: For the purposes of subsection (1)﻿(b), the determination may identify wholesale customers in any of the following ways:
a: by name:
b: by description:
c: by specifying eligibility criteria:
d: any other way the Commission thinks fit.
3: Subsection (1)﻿(d) does not limit the Commission’s power to amend, revoke, or replace the determination at any time.
95: Other matters that may be included in determination for specified access terms regulation
1: A determination under section 93
a: 1 or more of the following with respect to supplying groceries or ancillary services:
i: the maximum price or prices (or charge or charges) that a regulated grocery retailer may charge:
ii: the maximum wholesale margin that a regulated grocery retailer may recover:
iii: the maximum revenues that a regulated grocery retailer may derive:
iv: principles for determining prices, charges, wholesale margins, or revenues:
b: the quality standards that a regulated grocery retailer must meet (for example, delivery time frames and out-of-stock frequency):
c: terms and conditions relating to access to wholesale supply of groceries and any ancillary services from a regulated grocery retailer (for example, terms or conditions relating to payment, credit, minimum purchase amounts or quantities, and demand forecasting):
d: a regulated grocery retailer’s systems, procedures, and processes in connection with 1 or more of the following:
i: compliance with the determination and the Order in Council made under subpart 5
ii: monitoring of, and reporting on, compliance with the determination and that order by an independent oversight group that has a majority of members that are independent of the regulated grocery retailer; and
iii: the development of performance measures relating to compliance with the determination and that order; and
iv: an audit, and other checks, of compliance with the determination and that order:
e: any other duties on 1 or more regulated grocery retailers or wholesale customers to facilitate or support the operation of the determination:
f: any other duties on 1 or more regulated grocery retailers or wholesale customers to ensure that they act in a manner that is consistent with the principle set out in section 23
g: matters for the purposes of section 87
i: the grounds on which and how a supplier may opt out of the wholesale supply of groceries under an Order in Council made under subpart 5
ii: the terms and conditions of that power to opt out (which may include requirements for the supplier, a regulated grocery retailer, or both):
h: when a regulated grocery retailer is allowed to act under section 114
2: A determination under section 93
a: include incentives for a particular regulated grocery retailer to maintain or improve its quality of wholesale supply of groceries or any ancillary services:
b: include any matter contained in a specified access terms proposal:
c: prescribe modifications or other matters for the purposes of clause 1
3: Quality standards may be prescribed in any way the Commission considers appropriate (such as targets, bands, or formulas). Those standards may relate to the quality of groceries supplied or the quality of any ancillary service.
96: Process for making determination for specified access terms regulation
The Commission may use any process that it considers appropriate to develop a determination under section 93 sections 98 to 102 section 97
97: Process requirements do not apply to certain amendments
1: Sections 98 to 102
a: the nature of the amendment is technical and non-controversial; or
b: the amendment is necessary or desirable to ensure that the determination is consistent with any other determination made under this Part; or
c: it is necessary or desirable in the public interest that the amendment be made urgently.
2: If the Commission relies on subsection (1)﻿(c),—
a: the Commission must publish a statement of its reasons for acting under that paragraph; and
b: the amendment must be treated as revoked 9 months after it comes into force, unless it is earlier revoked (but this paragraph does not prevent the Commission from making the amendment again).
98: Call for specified access terms proposal
1: The Commission must—
a: give written notice to 1 or more regulated grocery retailers requiring them to submit to the Commission, by the date specified in the notice, a specified access terms proposal that complies with section 99
b: publish the notice.
2: The Commission may include in the written notice any additional requirements that it thinks fit to specify, having regard to any relevant matters (for example, the terms and conditions of any commercial agreement for the wholesale supply of groceries in New Zealand or overseas).
3: A regulated grocery retailer to whom written notice is given must comply with the notice.
99: Requirements for specified access terms proposal
1: A specified access terms proposal must—
a: specify sufficient terms and conditions that cover the matters set out in section 94
b: provide an explanation of, and reasons for, those terms and conditions; and
c: be consistent with the principle set out in section 23
d: comply with any additional requirements that the Commission has specified under section 98
2: A specified access terms proposal may also specify terms and conditions that cover 1 or more of the matters set out in section 95
3: The Commission may refuse to consider a specified access terms proposal that—
a: fails to comply with this section; or
b: is submitted late.
100: Commission must publish and consult on specified access terms proposal
1: This section applies if the Commission receives, by the date specified in the notice under section 98 section 99
2: The Commission must—
a: publish the specified access terms proposal; and
b: consult on the specified access terms proposal with the persons, or representatives of the persons, that the Commission considers will be substantially affected by the determination.
101: Failure to submit specified access terms proposal
If a regulated grocery retailer ( A section 99 section 98
a: give written notice to 1 or more other regulated grocery retailers under section 98
b: act under section 100
c: publish and consult on a draft determination under section 102
102: Commission must consult on draft determination
The Commission must, after acting under sections 98 to 100
a: publish a draft determination; and
b: publish a statement of its reasons for proposing to make a determination; and
c: consult the persons, or representatives of the persons, that the Commission considers will be substantially affected by the determination.
103: Commission must review and report on determination for specified access terms
1: The Commission must—
a: complete a first review of a determination under section 93
b: give the Minister a report on that review as soon as practicable after completing it.
2: After the first review, the Commission—
a: must review a determination under section 93
b: may review that determination and give the Minister a report on that review at any other time.
3: The purpose of a review of a determination under section 93
a: assess the operation and effectiveness of the determination; and
b: assess whether the determination should be amended, revoked, or replaced.
4: The Commission—
a: may give the Minister a report under this section as a separate report or as part of its annual report under section 175
b: at least 10 working days later, must publish the report.
5: This section does not apply to a determination that only amends or revokes another determination. Wholesale customer requirements
104: Wholesale customers must comply with requirements to facilitate operation of additional regulation
1: A wholesale customer must comply with the requirements imposed on it under a determination made under this subpart (if any).
2: This section is not a civil liability provision (and, accordingly, there is no civil liability remedy for a contravention of this provision). However,—
a: any amount payable by a wholesale customer to a regulated grocery retailer ( A Example
A regulated grocery retailer ( A B B neglects to pay for some of those groceries (or ancillary services) in accordance with the specified access terms. A may recover the amount owing as a debt due.
b: see sections 114 115
3: Any amount payable by A to a wholesale customer under the determination is recoverable by the wholesale customer in any court of competent jurisdiction as a debt due to the wholesale customer. Power to disapply requirements
105: Determination may disapply other requirements
1: A determination made under this subpart may provide, for the purposes of section 54 80 subpart 2 4
2: The following apply to a determination made under this subpart that disapplies a duty to a specified person or class of persons:
a: the Commission may make the determination only if the Commission is satisfied that the duty is no longer necessary or desirable in order to promote the purpose of this Part (after taking into account any additional regulation that has been imposed):
b: the duty may be disapplied subject to the terms and conditions that the Commission thinks fit.
7: Review of regulation of access to grocery wholesale
106: Order in Council may set market concentration threshold that triggers review
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, set a retail grocery market concentration threshold for the purposes of this subpart.
2: 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.
107: Commission must monitor market concentration levels
1: The Commission must—
a: monitor the level of retail grocery market concentration; and
b: promptly notify the Minister if the retail grocery market concentration is at or below the threshold prescribed under section 106
c: after it notifies the Minister under paragraph (b), start to carry out a review.
2: The purpose of the review is for the Commission to consider the following:
a: the operation and effectiveness of this Part:
b: whether any amendments to this Part are necessary or desirable to promote the purpose of this Act:
c: the operation and effectiveness of any additional regulation:
d: whether additional regulation is necessary or desirable or whether it is necessary or desirable to amend or revoke any additional regulation.
108: Commission must give report to Minister
1: The Commission must, within 1 year after starting a review under this subpart, give to the Minister a report on the review.
2: The report must—
a: describe the state of competition that exists in the New Zealand grocery industry, including retail and wholesale parts; and
b: set out the Commission’s views on the matters set out in section 107(2)
3: The report may set out any other matters that the Commission thinks fit.
4: The Commission—
a: may give the Minister a report under this section as a separate report or as part of its annual report under section 175
b: at least 10 working days later, must publish the report.
109: Minister must present report to House of Representatives
The Minister must, within 1 month after receiving a report under this subpart, present the report to the House of Representatives.
110: Minister must issue Government’s response
The Minister must, within a reasonable time after receiving a report under this subpart,—
a: issue a response to the report that sets out the Government’s intentions in relation to this Part; and
b: present the response to the House of Representatives.
8: Regulations may disapply requirements for facilitating commercial agreements for wholesale supply of groceries
111: Regulations may disapply subpart 2
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for the following purposes:
a: providing for any provision or provisions of subpart 2
b: providing for terms and conditions of a disapplication under paragraph (a).
2: The regulations may apply to all regulated grocery retailers, a particular regulated grocery retailer, or a class of regulated grocery retailers.
3: Regulations made under this section 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 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.
112: Test for regulations under this subpart
1: The Minister may recommend that regulations be made under this subpart only if—
a: the Minister is satisfied that making the regulations is necessary or desirable in order to promote the purpose of this Act; and
b: the Commission has carried out an inquiry under subpart 3 section 60
c: the Commission has recommended that the regulations be made in that final report.
2: The Minister and the Commission may recommend that regulations be made under this subpart regardless of whether the regulations are necessary or desirable in order to promote the purpose of this Part.
9: Miscellaneous
113: Commission may develop determination at same time that it acts under other provisions or before Order in Council is made
1: Nothing in this Act prevents the Commission from developing a determination under this Part at the same time as it performs or exercises any other function, power, or duty under this Act, including when it does any of the following:
a: carries out an inquiry under subpart 3
b: develops any other determination under this Part:
c: prepares a report under section 175
2: In addition, nothing in this Act prevents the Commission from developing a determination under subpart 6 subpart 5
114: Regulated grocery retailer may stop supply if wholesale customer’s failure is serious or persistent
1: A regulated grocery retailer may stop supplying groceries or ancillary services, or classes of groceries or ancillary services, to a wholesale customer in accordance with a determination made under subpart 4 6
a: the wholesale customer has seriously or persistently contravened requirements imposed on it under the determination; and
b: either—
i: the regulated grocery retailer is allowed to act in that manner under the determination and complies with the terms and conditions imposed by the determination in relation to acting under this section (if any); or
ii: the Commission has given its prior approval to the regulated grocery retailer acting in that manner and the regulated grocery retailer complies with the terms and conditions of the Commission’s approval (if any).
2: The Commission may give its approval on the terms and conditions it thinks fit (for example, a condition requiring the regulated grocery retailer to resume supply after a specified period, after the wholesale customer complies with specified requirements, or in other specified circumstances).
115: Defence if wholesale customer’s failure causes contravention
In a proceeding under subpart 3 A section 71 76 86
a: A’s contravention was caused by a wholesale customer contravening 1 or more requirements imposed under a determination made under subpart 4 6
b: A took all reasonable steps to comply with section 71 76 86
116: Application of Commerce Act 1986
Part 2
4: Enforcement and dispute resolution
1: Power to issue corrective notices
117: Commission may give notice to take corrective action
1: This section applies if the Commission is satisfied that a person—
a: has contravened a civil liability provision; or
b: is likely to contravene a civil liability provision; or
c: has attempted to contravene a civil liability provision; or
d: has been involved in a contravention of a civil liability provision.
2: The Commission may, by written notice given to the person, require the person to take any steps specified in the notice to—
a: avoid, remedy, or mitigate any actual or likely adverse effects arising from a contravention or possible contravention; or
b: ensure that a contravention is not continued or repeated; or
c: ensure that a contravention does not occur.
3: The notice must specify a reasonable period within which the required steps must be taken.
4: If the Commission is satisfied that, by engaging in any conduct, the person is contravening or is likely to, or is attempting to, contravene a civil liability provision, the Commission may act under subsection (2)—
a: whether or not the person has previously contravened the provision; and
b: whether or not there is an imminent danger of substantial damage to any person if the provision is contravened. 2022 No 21 s 35(1), (2)
118: Person must comply with corrective notice
1: A person that is given a notice under this subpart must comply with the notice within the time frame, and in the manner, specified in the notice.
2: A person that contravenes this section is liable to a civil liability remedy (including an order to pay a pecuniary penalty or compensation). Guidance note
See subpart 3 2022 No 21 s 35(3)–(5)
119: Procedural matters relating to corrective notice
The Commission may exercise a power under section 117
a: the Commission has had regard to whether exercising the power promotes the purpose of this Act; and
b: the Commission gives the person to whom the notice is proposed to be directed ( A
i: that the Commission may exercise the power; and
ii: the reasons why it is considering exercising that power; and
c: the Commission gives A or A's representative an opportunity to make written submissions and to be heard on the matter within that notice period. 2011 No 5 s 49(5)
2: Power to require warning to be disclosed
120: Commission may require its warning to be disclosed
1: If the Commission has issued a warning about any matter relating to a relevant person, the Commission may, by written notice given to the relevant person, require them to do either or both of the following:
a: prominently disclose a copy of the warning on 1 or more Internet sites maintained by or on behalf of the relevant person:
b: ensure that every document or other communication of the kind that is specified in the notice and that is distributed by or on behalf of the relevant person contains a copy of the warning in a prominent position or is accompanied by a copy of the warning.
2: The Commission may impose the requirement on the terms and conditions (if any) that it thinks fit.
3: In this subpart, relevant person 2011 No 5 s 49(1), (2), (7)
121: Person must comply with disclosure notice
1: A person that is given a notice under this subpart must comply with the notice within the time frame, and in the manner, specified in the notice.
2: A person that contravenes this section is liable to a civil liability remedy (including an order to pay a pecuniary penalty or compensation). Guidance note
See subpart 3 2022 No 21 s 35(3)–(5)
122: Procedural matters relating to disclosure notice
The Commission may exercise a power under section 120
a: the Commission has had regard to whether exercising the power promotes the purpose of this Act; and
b: the Commission gives the relevant person at least 5 working days’ written notice of the following matters before the Commission exercises the power:
i: that the Commission may exercise the power; and
ii: the reasons why it is considering exercising that power; and
c: the Commission gives the relevant person or the relevant person's representative an opportunity to make written submissions and to be heard on the matter within that notice period. 2011 No 5 s 49(5)
123: Commission must publish disclosure notice
If the Commission gives a notice under this subpart,—
a: it must, immediately after exercising that power, publish the following:
i: the notice:
ii: the reasons for giving the notice:
iii: any other information the Commission thinks relevant in the circumstances; and
b: it may make the matters in paragraph (a) publicly available by any other means; and
c: it may notify any other person of the matters in paragraph (a). 2011 No 5 s 50
3: Civil liability
124: Civil liability remedies available under this subpart
1: The following remedies ( civil liability remedies
a: a pecuniary penalty order (with 4 tiers of penalties):
b: a declaration of contravention:
c: a compensatory order:
d: an order to vary or cancel a contract:
e: an injunction.
2: A civil liability provision
a: section 19
b: sections 35 to 47
c: sections 69 71 72(3)
d: section 76
e: section 86
f: section 118
g: section 121
h: section 188
i: section 190 Pecuniary penalty order
125: When High Court may make pecuniary penalty order
1: The High Court may, on the application of the Commission, order a person to pay to the Crown the pecuniary penalty that the court determines to be appropriate if the court is satisfied that the person has—
a: contravened a civil liability provision; or
b: attempted to contravene a civil liability provision; or
c: been involved in a contravention of a civil liability provision.
2: In this subpart, the relevant conduct
126: Maximum penalty (Tier 1)
1: This section applies to a contravention, an attempted contravention, or an involvement in a contravention of any of the following:
a: section 19
b: any provision of sections 35 to 47
c: section 69
d: section 71
e: section 72(3)
f: section 76
g: section 86
2: However, this section does not apply in relation to sections 36(1)﻿(b) and (c) 38(1)﻿(c) and (d) 40 41 see instead section 129
3: The maximum amount of a pecuniary penalty is—
a: $500,000 for a contravention, an attempted contravention, or an involvement in a contravention by an individual; or
b: in any other case, the greater of—
i: $10 million; and
ii: either the amount referred to in subsection (4)﻿(a) or the amount referred to in subsection (4)﻿(b).
4: For the purposes of subsection (3)﻿(b)﻿(ii), the amounts are as follows:
a: if it can be readily ascertained and if the court is satisfied that the contravention (if any) 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 that is liable to pay the penalty and all its interconnected bodies corporate (if any) in each accounting period in which the contravention (if any) occurred.
5: In this section and section 127 additional regulation section 25
127: Maximum penalty (Tier 2)
1: This section applies to a contravention, an attempted contravention, or an involvement in a contravention of any of the following:
a: section 19
b: any provision of sections 35 to 47 see instead section 126
c: section 76
2: However, this section does not apply in relation to sections 36(1)﻿(b) and (c) 38(1)﻿(c) and (d) 40 41 see instead section 129
3: The maximum amount of a pecuniary penalty is—
a: $200,000 for a contravention, an attempted contravention, or an involvement in a contravention by an individual; or
b: in any other case, the greater of—
i: $3 million; and
ii: either the amount referred to in subsection (4)﻿(a) or the amount referred to in subsection (4)﻿(b).
4: For the purposes of subsection (3)﻿(b)﻿(ii), the amounts are as follows:
a: if it can be readily ascertained and if the court is satisfied that the contravention (if any) occurred in the course of producing a commercial gain, the value of any commercial gain resulting from the contravention; or
b: if the commercial gain cannot readily be ascertained, 3% of the turnover of the person and all its interconnected bodies corporate (if any) in each accounting period in which the contravention (if any) occurred.
128: Maximum penalty (Tier 3)
1: This section applies to a contravention, an attempted contravention, or an involvement in a contravention of section 190
2: The maximum amount of a pecuniary penalty is—
a: $250,000 for a contravention, an attempted contravention, or an involvement in a contravention by an individual; or
b: in any other case, $5 million.
129: Maximum penalty (Tier 4)
1: This section applies to a contravention, an attempted contravention, or an involvement in a contravention of any of the following:
a: section 19
b: section 36(1)﻿(b) and (c)
c: section 38(1)﻿(c) and (d)
d: sections 40 41
e: section 76
f: section 118
g: section 121
h: section 188
2: The maximum amount of a pecuniary penalty is—
a: $30,000 for a contravention, an attempted contravention, or an involvement in a contravention by an individual; or
b: $300,000 in any other case.
130: Considerations for court in determining pecuniary penalty
1: In determining an appropriate pecuniary penalty that a person ( A
a: the nature and extent of A’s conduct; and
b: the nature and extent of any loss or damage suffered by any person because of A’s conduct; and
c: any gains made or losses avoided by A; and
d: whether a person has paid an amount of compensation, reparation, or restitution, or taken other steps to avoid or mitigate any actual or potential adverse effects arising from A’s conduct; and
e: the circumstances in which A’s conduct took place; and
f: whether A has previously been found by a court in a proceeding under this Act, or any other legislation, to have engaged in any similar conduct; and
g: the status of, or outcome from, any proceeding before the dispute resolution scheme under subpart 5
2: In this section, A’s conduct Declaration of contravention
131: Declaration of contravention
The High Court must, on an application under section 125(1)
132: Purpose and effect of declaration of contravention
1: The purpose of a declaration of contravention is to enable an applicant for a compensatory order to rely on the declaration of contravention in the proceeding for that order, and not be required to prove the contravention or involvement in the contravention.
2: Accordingly, a declaration of contravention is conclusive evidence of the matters that must be stated in it under section 133
133: What declarations of contravention must state
A declaration of contravention must state the following:
a: the provision to which the contravention or involvement in the contravention relates; and
b: the person who engaged in the contravention or was involved in the contravention; and
c: the conduct that constituted the contravention or involvement in the contravention. Compensatory orders
134: When court may make compensatory orders
1: The court may make a compensatory order, on application by the Commission or any other person, if the court is satisfied that—
a: a person has contravened a civil liability provision; and
b: another person (the aggrieved person
2: The court may make a compensatory order whether or not the aggrieved person is a party to the proceeding. 2013 No 69 s 494
135: Terms of compensatory orders
1: If section 134
2: An order may include an order to direct a relevant person to pay to the aggrieved person the amount of the loss or damage (in whole or in part).
3: Subsection (2) does not limit subsection (1).
4: In this section, relevant person
a: any person in contravention; or
b: any person involved in the contravention. 2013 No 69 s 495 Variation or cancellation orders
136: Court may vary or cancel contract
1: The court may, on application by the Commission or any other person, make 1 or more of the orders set out in subsection (2) if the court is satisfied that—
a: a contract has been entered into in contravention of a civil liability provision; or
b: a contract contains a provision that, if given effect to, would contravene a civil liability provision or would result in a person contravening a civil liability provision.
2: An order may—
a: vary the contract in the manner the court thinks fit; or
b: cancel the contract; or
c: require a 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. 1986 No 5 s 89(2) Injunctions
137: Court may grant injunctions
The court may, on application by the Commission or any other person, grant an injunction—
a: restraining a person from engaging or continuing to engage in conduct that constitutes or would constitute a contravention, attempted contravention, or an involvement in a contravention of a civil liability provision; or
b: requiring a person to do an act or a thing if—
i: that person has refused or failed, is refusing or failing, or is proposing to refuse or fail to do that act or thing; and
ii: the refusal or failure was, is, or would be a contravention of a civil liability provision. 2013 No 69 s 480 2022 No 21 s 47
138: When court may grant restraining injunctions
1: The court may grant an injunction restraining a person from engaging in conduct of a particular kind if—
a: it is satisfied that the person has engaged in conduct of that kind; or
b: it appears to the court that, if an injunction is not granted, it is likely that the person will engage in conduct of that kind.
2: The court may grant an interim injunction restraining a person from engaging in conduct of a particular kind if in its opinion it is desirable to do so.
3: Subsections (1)﻿(a) and (2) apply 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.
4: Subsections (1)﻿(b) and (2) apply whether or not—
a: the person has previously engaged in conduct of that kind; or
b: there is an imminent danger of substantial damage to any other person if that person engages in conduct of that kind. 2013 No 69 s 481 2022 No 21 s 48
139: When court may grant performance injunctions
1: A court may grant an injunction requiring a person to do an act or a thing that they are required to do under a civil liability provision if—
a: it is satisfied that the person has refused or failed to do that act or thing; or
b: it appears to the court that, if an injunction is not granted, it is likely that the person will refuse or fail to do that act or thing.
2: The court may grant an interim injunction requiring a person to do an act or a thing that they are required to do under a civil liability provision if in its opinion it is desirable to do so.
3: Subsections (1)﻿(a) and (2) apply whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing.
4: Subsections (1)﻿(b) and (2) apply whether or not—
a: the person has previously refused or failed to do that act or thing; or
b: there is an imminent danger of substantial damage to any other person if the person refuses or fails to do that act or thing. 2022 No 21 s 49
140: Commission’s undertaking as to damages not required
1: If the Commission applies to the court for the grant of an interim injunction under this subpart, the court must not, as a condition of granting an interim injunction, require the Commission to give an undertaking as to damages.
2: 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. 2013 No 69 s 482 2022 No 21 s 50 Rules of procedure
141: Rules of civil procedure and civil standard of proof apply
A proceeding under this subpart is a civil proceeding and the usual rules of court and rules of evidence and procedure for civil proceedings apply (including the standard of proof).
142: Limit on proceedings
1: A proceeding under this subpart may be commenced within 3 years after the conduct giving rise to the contravention, attempted contravention, or involvement in the contravention was discovered or ought reasonably to have been discovered.
2: However, no proceeding under this subpart may be commenced 10 years or more after the conduct giving rise to the contravention, attempted contravention, or involvement in the contravention occurred. Relationship between proceedings and orders
143: More than 1 civil liability remedy may be given for same conduct
The court may grant a civil liability remedy of one kind against a person even though the court has granted another civil liability remedy of a different kind against the person for the same conduct. Example
The court may make a compensatory order and a pecuniary penalty order for the same conduct.
144: Only 1 pecuniary penalty order may be made for same conduct
If conduct by a person constitutes a contravention, an attempted contravention, or an involvement in the contravention of 2 or more provisions,—
a: a proceeding may be brought against that person for the contravention, attempted contravention, or involvement in the contravention of any 1 or more of the provisions; but
b: no person is liable to more than 1 pecuniary penalty order for the same conduct.
145: No pecuniary penalty and criminal penalty for same conduct
A person cannot be ordered to pay a pecuniary penalty and be liable for a fine or to imprisonment under this Act or any other Act for the same conduct.
4: Miscellaneous provisions relating to enforcement
146: Jurisdiction of High Court
1: The High Court may hear and determine the following matters:
a: applications for orders, or for a court to exercise any other power, under any provision of subpart 3
b: appeals arising from any proceeding in the District Court under subpart 3
2: Section 75
147: Jurisdiction of District Court
1: The District Court may hear and determine applications for orders, or for a court to exercise any other power, under any of the provisions of sections 134 to 145
a: the amount claimed does not exceed $350,000; or
b: no amount is claimed; or
c: the occasion for the making of the order or the exercise of the power arises in the course of civil proceedings properly before the court; or
d: the parties consent, under section 81
2: Section 76
148: Involvement in contravention
In this Act, a person is involved in a contravention
a: has aided, abetted, counselled, or procured the contravention; or
b: has induced, whether by threats or promises or otherwise, the contravention; or
c: has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention; or
d: has conspired with others to effect the contravention.
149: Illegal contracts provisions do not apply
Subpart 5
a: is entered into in contravention of a civil liability provision; or
b: contains a particular provision that if given effect to would contravene a civil liability provision or would result in a person contravening a civil liability provision. 1986 No 5 s 89(5)
150: Enforceability of other provisions not affected
1: This section applies if a contract—
a: is entered into in contravention of a civil liability provision by reason that the contract contains a particular provision; or
b: contains a particular provision that if given effect to would contravene a civil liability provision or would result in a person contravening a civil liability provision.
2: Despite any legislation or rule of law, the existence of the particular provision does not affect the enforceability of any other provision of the contract. 1986 No 5 s 89(6)
5: Dispute resolution
151: Overview
1: This subpart provides that every regulated grocery retailer must comply with the dispute resolution scheme established under Schedule 2
2: The dispute resolution scheme is—
a: a scheme approved by the Minister and delivered by the provider of the scheme (an approved scheme
b: if there is no approved scheme, a scheme that is delivered by the chief executive of the Ministry (a regulated scheme
3: A dispute may be referred to the scheme if—
a: the amount claimed under the dispute is less than $5 million; and
b: the dispute—
i: arises from requirements under the grocery supply code; or
ii: arises from requirements under Part 3
iii: falls within a class of eligible disputes prescribed by the regulations.
4: However, only a supplier or a wholesale customer (not a regulated grocery retailer) may refer a dispute to the scheme.
5: This section is intended only as a guide to the general scheme and effect of this subpart.
152: Interpretation
1: In this subpart and section 197 binding decision section 160 dispute resolution scheme Schedule 2 provider clause 2 regulated grocery retailer
a: a regulated grocery retailer within the meaning of Part 2
b: a regulated grocery retailer within the meaning of Part 3
c: a person that is no longer a regulated grocery retailer under paragraph (a) or (b) but who was a regulated grocery retailer at the time of the conduct giving rise to the dispute rules
a: in relation to an approved scheme, described in clause 14
b: in relation to a regulated scheme, prescribed under clause 19 settlement agreement section 159 supplier
a: any person that has taken, or is actively taking, steps towards entering into a supply agreement to supply groceries; and
b: a former supplier referred to in subsection (2) wholesale customer
a: has the meaning set out in section 25
b: includes a former wholesale customer referred to in subsection (2).
2: A former supplier or wholesale customer (as the case may be) is a person that is no longer a supplier or wholesale customer, but was at the time of the conduct giving rise to the dispute, provided that not more than 3 months have expired after,—
a: in the case of a supplier, the later of—
i: the date on which the supplier last provided supply to the regulated grocery retailer under the supply agreement; or
ii: the date on which the regulated grocery retailer confirmed in writing to the supplier that the supply agreement was ending:
b: in the case of a wholesale customer, the later of—
i: the date on which the wholesale customer last received supply from the regulated grocery retailer under the wholesale agreement; or
ii: the date on which the regulated grocery retailer confirmed in writing to the wholesale customer that the wholesale agreement was ending. Referral to dispute resolution scheme
153: Supplier or wholesale customer may refer certain disputes to dispute resolution scheme
A supplier or wholesale customer who is party to a dispute with a regulated grocery retailer may refer the dispute to the dispute resolution scheme if—
a: the amount claimed under the dispute does not exceed $5 million or no amount is claimed; and
b: the dispute—
i: arises from the performance or non-performance of a requirement, or the exercise of a power, under the grocery supply code; or
ii: arises from the performance or non-performance of a requirement, or the exercise of a power, under Part 3
iii: falls within a class of eligible disputes prescribed by regulations made under section 154
c: the dispute has not been finally resolved by proceedings in any court or tribunal. Guidance note
The procedure for making a referral is set out in the rules of the scheme.
154: Regulations prescribing classes of eligible disputes
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations prescribing 1 or more further classes of disputes between a supplier or wholesale customer and a regulated grocery retailer that may be referred to the dispute resolution scheme ( eligible disputes
2: The Minister may make a recommendation only if the Minister is satisfied—
a: that prescribing those disputes as eligible disputes is necessary or desirable in order to promote the purpose of the dispute resolution scheme set out in clause 1
b: that those disputes are of a kind, or likely to be of a kind, appropriate for resolution through the dispute resolution scheme.
3: For the purposes of subsection (2)﻿(b), the Minister may consider any factors that the Minister considers relevant, including the following:
a: the likely size of those disputes:
b: the likely complexity of those disputes:
c: the kinds of remedial action that would likely be needed to resolve those disputes:
d: the characteristics of the dispute resolution scheme.
4: Regulations made under this section 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 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.
155: Other proceedings stayed unless court or tribunal orders otherwise
1: The referral of a dispute to the dispute resolution scheme does not affect any right any person may have to commence a proceeding in any court or tribunal (a concurrent proceeding
2: However, if a concurrent proceeding is, or has been, commenced in relation to the matters that are the subject of a dispute referred to the scheme, the concurrent proceeding is stayed—
a: while the proceeding before the dispute resolution scheme and any appeal rights continue; and
b: while a binding decision or a settlement agreement is in force.
3: However, subsection (2) does not apply to proceedings brought by the Commission under this Part.
4: Despite subsection (2), the court or tribunal may, on its own initiative or on application of the Commission, make an order to do either or both of the following:
a: allow the concurrent proceeding to commence or continue in that court or tribunal:
b: stay the proceeding before the dispute resolution scheme.
5: The grounds on which the Commission may apply for a stay under subsection (4)﻿(b) include the following:
a: the Commission has, or is likely soon to have, a relevant investigation in progress:
b: the Commission is considering taking relevant compliance or enforcement action:
c: the Commission considers that there are reasons why 1 or more of the matters that are the subject of the dispute would be better dealt with in the concurrent proceedings than by the dispute resolution scheme. Rules of dispute resolution scheme
156: Regulated grocery retailers must comply with rules of dispute resolution scheme
A regulated grocery retailer must comply with the rules of the dispute resolution scheme.
157: District Court may order compliance with rules of dispute resolution scheme
On the application of the provider of the dispute resolution scheme, the District Court may make an order requiring a regulated grocery retailer to comply with the rules of the scheme.
158: Decision maker may draw inferences from failure to comply with rules of dispute resolution scheme
1: This section applies if—
a: a dispute comes before an adjudicator or other decision maker for resolution under the dispute resolution scheme; and
b: the adjudicator or other decision maker is satisfied that, in the course of the dispute resolution proceedings, a regulated grocery retailer has failed to comply with a rule of the dispute resolution scheme.
2: The adjudicator or other decision maker may—
a: draw from the failure any reasonable inferences it thinks fit; and
b: determine the claim concerned on the basis of the information available to it; and
c: give any weight it thinks fit to information that—
i: it asked for, or directed to be provided; but
ii: was provided later than requested or directed. Enforcement and appeals
159: Enforcement of settlement agreements
1: This section applies if a dispute is resolved under the dispute resolution scheme by mediation or other process the outcome of which the parties have agreed will be binding (a settlement agreement
2: A party to the dispute resolution proceedings must comply with the settlement agreement.
3: On the application of a party or the provider of the scheme, the District Court may make an order requiring a party to comply with the settlement agreement.
4: If the court is satisfied that the terms of the settlement agreement are manifestly unreasonable, the court’s order under subsection (3) may modify the terms of the settlement agreement, but only to the extent that the modification results in an agreement that could have been entered into under the dispute resolution scheme.
160: Enforcement of binding decisions
1: This section applies if a dispute is resolved under the dispute resolution scheme by an order or other decision of an adjudicator or other decision maker (a binding decision
2: A party to the dispute resolution proceedings must comply with the binding decision.
3: The binding decision must be treated as an order of the District Court and may be enforced accordingly.
161: Appeals against binding decisions
1: A party who is not satisfied with a binding decision may appeal to—
a: the District Court, if the amount at issue does not exceed $350,000 or if no amount was claimed; or
b: the High Court, if the amount at issue exceeds $350,000.
2: However, the appeal may be brought only on a question of law.
3: In this section, amount at issue
a: the amount of money required to be paid under the decision by the person filing the appeal; or
b: if subsection (4) applies, the amount claimed unsuccessfully by the party who referred the dispute to the dispute resolution scheme (the claimant
4: This subsection applies if the appeal relates to a decision—
a: in which the decision maker has declined to require payment of money; or
b: in which the decision maker has required payment of money that is less than the amount claimed by the claimant.
5: If an appeal is brought, the binding decision to which the appeal relates continues in full force pending the determination of the appeal, unless the court orders to the contrary.
6: Appeals against a decision of the District Court or the High Court under subsection (1) (the first appeal court
162: Determination of preliminary point of law by court
1: A party to dispute resolution proceedings may, with the consent of the adjudicator or other decision maker, or the mediator or other person assisting the parties to reach a settlement agreement, apply to the High Court to determine any question of law arising in the course of the dispute resolution proceedings.
2: The High Court must not consider an application that is made without the consent of every other party unless it is satisfied that the determination of the question of law concerned—
a: might produce substantial savings in costs to the parties; and
b: might, having regard to all the circumstances, substantially affect the rights of 1 or more of the parties.
3: If the dispute resolution proceedings is an arbitration, this section applies despite anything in article 5 of Schedule 1 1996 No 99 Schedule 2 cl 4
163: Privileges and immunities
The following have the same privileges and immunities as witnesses and counsel in proceedings before a court:
a: every witness giving evidence under the dispute resolution scheme:
b: every counsel or expert or other person appearing before an adjudicator or other decision maker, or before a mediator or other person assisting the parties to reach a settlement agreement, under the dispute resolution scheme. 1996 No 99 Schedule 1
164: Powers to take evidence
The adjudicator or other decision maker under the dispute resolution scheme may receive in evidence any statement, document, information, or matter that may, in their opinion, assist them to deal effectively with the matter before them, whether or not the statement, document, information, or matter would be otherwise admissible in a court of law. Miscellaneous
165: Binding decision must be made in accordance with principles of law
1: This section applies if a dispute comes before an adjudicator or other decision maker for resolution under the dispute resolution scheme.
2: Any binding decision issued by the adjudicator or other decision maker must be made in accordance with principles of law.
166: Parties may not contract out of dispute resolution scheme
1: This subpart has effect despite any provision to the contrary in any agreement.
2: A provision of an agreement that has the effect of overriding a provision of this subpart (whether directly or indirectly) is unenforceable.
3: Subsections (1) and (2) do not apply in respect of a provision that imposes a stricter duty on a regulated grocery retailer than would be imposed under this subpart.
5: Miscellaneous
1: Commerce Commission
Grocery Commissioner
167: Appointment of Grocery Commissioner
1: There must be a Grocery Commissioner.
2: The Grocery Commissioner must be appointed by the Governor-General on the recommendation of the responsible Minister.
3: The appointment must be made by written notice to the appointee.
4: The responsible Minister must ensure that the following are notified in the Gazette
a: the name of the appointee; and
b: the date on which the appointment takes effect; and
c: the term of the appointment.
5: In this section and section 168 responsible Minister section 10(1)
168: Minister’s recommendation
1: The responsible Minister may recommend that a person be appointed as the Grocery Commissioner only if—
a: the person is or will be a member of the Commission ( see section 9
b: in the opinion of the responsible Minister, the person is qualified for appointment, having regard to the functions and powers of the Commission under this Act and any other legislation.
2: For the purposes of subsection (1)﻿(b), a person is qualified for appointment by virtue of that person’s knowledge of, or experience in, the grocery industry or any other industry, commerce, economics, law, accountancy, public administration, or consumer affairs.
169: Further provisions relating to Grocery Commissioner
1: A person may be removed from office as the Grocery Commissioner only for just cause (within the meaning of section 40
2: If a person is removed under subsection (1), they are also removed from office as a member of the Commission as if they had been removed under section 13(1) section 39
3: If a person’s term of office as the Grocery Commissioner expires, or the person resigns from that office, the person—
a: may continue to act as if they were the Grocery Commissioner for the purpose of completing the determination of any matter before that person, as the Grocery Commissioner, that commenced before the term of office expired or the resignation took effect; and
b: must be treated as if they were the Grocery Commissioner for that purpose.
4: In other respects, the following provisions of the Crown Entities Act 2004
a: section 34
b: section 35
c: clause 2
d: clause 3
e: clause 4(2) and (3)
170: Who performs or exercises functions, duties, and powers of Commission
1: The functions, duties, and powers of the Commission under this Act must be performed or exercised by—
a: the Grocery Commissioner alone; or
b: if the Grocery Commissioner requests and the chairperson of the Commission agrees, the Grocery Commissioner with 2 or more other members of the Commission.
2: However, if, in the opinion of the Grocery Commissioner, a function, duty, or power is any of the following, it must be performed or exercised by the Grocery Commissioner with 2 or more other members of the Commission:
a: recommending the designation of a regulated grocery retailer under either of the following:
i: section 11 Part 2
ii: section 29 Part 3
b: giving a report under any of the following:
i: section 60
ii: section 74
iii: section 108
c: prescribing the manner of complying with certain duties under section 49
d: making a determination under any of the following:
i: section 12 Part 2
ii: section 50
iii: section 64
iv: section 88
v: section 93
e: giving a direction under section 72
f: issuing a disclosure standard under section 191
g: reviewing and reporting under any of the following:
i: section 20
ii: section 78
iii: section 92
iv: section 103
3: The quorum requirement in section 15(4)
171: Further provisions relating to when Grocery Commissioner acts with 2 or more other members
1: This section applies if, under section 170(1)﻿(b) or (2)
2: The chairperson of the Commission must determine which other members must perform or exercise that function, duty, or power with the Grocery Commissioner.
3: In addition to their general vote, the Grocery Commissioner has, in the case of an equality of votes, a casting vote (and clause 12(2)
172: Alternate member to act instead of Grocery Commissioner in certain circumstances
1: This section applies if—
a: there is no Grocery Commissioner; or
b: the Grocery Commissioner is for any reason unable to perform or exercise a function, duty, or power of the Commission that would otherwise have been performed by them under this Act.
2: That function, duty, or power must be performed by a member of the Commission who is appointed by the chairperson of the Commission for that purpose.
3: Every reference in this Act to the Grocery Commissioner must, unless the context otherwise requires, be read as a reference to that member.
173: Ability to delegate
1: The consent of both the Grocery Commissioner and the chairperson of the Commission must be obtained before a delegation, under section 73 section 170(2)
2: The consent of the Grocery Commissioner must be obtained before a delegation, under section 73 Economic policies of Government
174: Commission must have regard to economic policies of Government
1: In the performance or exercise of its functions, duties, and powers under this Act, the Commission must have regard to any economic policies of the Government that the Minister gives, in writing, to the Commission.
2: The Minister must, as soon as practicable after giving a statement of economic policy of the Government to the Commission,—
a: arrange for a copy of the statement to be published in the Gazette
b: present a copy of the statement to the House of Representatives.
3: A statement of economic policy of the Government is not a direction for the purposes of Part 3 Annual report
175: Commission must prepare annual report on grocery industry
1: The Commission must prepare an annual report on the grocery industry.
2: The purpose of an annual report is to—
a: report on the state of competition in the grocery industry, including—
i: any changes to the level of competition and outcomes for consumers; and
ii: any monitoring of any retail grocery market concentration threshold that has been set for the purposes of subpart 7
b: raise awareness of emerging (or likely future) trends or issues; and
c: inform the public and Government about the performance or exercise of the Commission’s functions, duties, and powers under this Act; and
d: demonstrate how any Government direction or statement of economic policy of the Government given to the Commission has been considered in the performance or exercise of the Commission’s functions, duties, and powers under this Act.
3: In preparing the report, the Commission may consider any information that the Commission considers relevant, including any of the following:
a: the state of competition that exists in the grocery industry, including the conditions of entry and expansion for grocery retailers:
b: the operation and effectiveness of this Act and any other legislation relevant to the grocery industry (for example, the Commerce Act 1986 Fair Trading Act 1986
c: any information that may or must be included as part of a report under any of the following:
i: section 20
ii: section 60
iii: section 74
iv: section 78
v: section 92
vi: section 103
vii: section 108
d: any information that the Commission has received or obtained under this Act or any other legislation.
176: Commission must give report to Minister and publish it
1: The Commission must,—
a: as soon as practicable after the end of each financial year, give the annual report on the grocery industry to the Minister; and
b: at least 10 working days later, publish the report.
2: In this section, financial year section 2(1)
177: Minister must present report to House of Representatives
The Minister must, within 1 month after receiving the final report, present the annual report on the grocery industry to the House of Representatives.
178: Additional requirements relating to first report
1: This section applies in relation to the first annual report prepared under section 175 first report
2: The first report must include the Commission’s assessment of whether there has been a material improvement in the state of competition that exists in the grocery industry since 8 March 2022 (the date of the Commission’s Market study into the retail grocery sector final report
3: Despite section 176
2: Application of Commerce Act 1986
Application of Commerce Act 1986
179: Application of Part 6 of Commerce Act 1986 (enforcement, remedies, and appeals)
The following provisions of the Commerce Act 1986
a: section 74A
b: section 74B
c: section 74C
d: section 79
e: section 90
180: Application of Part 7 of Commerce Act 1986 (miscellaneous provisions)
The following provisions of the Commerce Act 1986
a: section 98
b: section 98A Part 4
c: section 98G
d: section 99
e: sections 99B to 99P
i: as if references to an overseas regulator were references to an overseas body that has functions in relation to a grocery industry corresponding to those of the Commission under this Act; and
ii: as if references to competition law were references to a grocery industry:
f: section 100
g: section 100A
h: section 101
i: section 102
j: section 104
k: section 106 section 103 section 183
l: section 106A
m: section 109 Provisions based on Commerce Act 1986
181: Monitoring compliance with duties
1: For the purpose of monitoring compliance with any duty imposed by or under this Act, the Commission may, in addition to exercising its powers under this Act and under the Commerce Act 1986
a: a written statement that states whether the participant has complied with the duty:
b: a report on the written statement that is signed by an auditor or other assurance practitioner in accordance with any form specified by the Commission:
c: sufficient information to enable the Commission to properly determine whether all applicable requirements have been complied with:
d: a certificate, in the form specified by the Commission and signed by at least 1 director of the participant, confirming the truth and accuracy of any information provided under this section.
2: The participant must comply with the notice within the time frame, and in the manner, specified in the notice. 1986 No 5 s 53N
182: Investigation and information-gathering powers
For the purpose of performing or exercising its functions, duties, and powers under this Act, the Commission may, in addition to exercising its powers under this Act and the Commerce Act 1986
a: investigate any of the following:
i: how effectively and efficiently participants in the grocery industry (both individually and as a collective) are facilitating the supply of groceries to consumers:
ii: how effectively and efficiently participants in the grocery industry (both individually and as a collective) are facilitating the supply of groceries to grocery retailers that are not regulated grocery retailers (within the meaning of Part 3
iii: how any determination, code, standard, direction, or other regulatory measure being considered by the Commission may be applied, or how any regulatory measure has been applied, in considering proposed regulatory measures:
b: examine, consider, or investigate any activity, cost, revenue, margin, transfer, asset valuation, circumstance, or event that is occurring or that has occurred during the previous 7 years:
c: by notice in writing, require any person—
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:
d: by notice in writing, require any person that the Commission has reason to believe may have information or documents relevant to an investigation, audit, or inquiry to do either or both of the following:
i: produce or supply to the Commission any documents or information that the Commission has reason to believe may be relevant to the investigation, audit, or inquiry:
ii: answer any questions about any matter that the Commission has reason to believe may be relevant to the investigation, audit, or inquiry:
e: by notice in writing, require any person, 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 a member of a class of appropriately qualified persons, as determined by the Commission in relation to the matters in paragraphs (a), (b), (c), and (d)﻿(i). 1986 No 5 s 53ZD
183: Offences relating to certain investigation and information-gathering powers
1: A person must not,—
a: without reasonable excuse, refuse or fail to comply with a notice under section 181 182 section 98
b: in purported compliance with such a notice, provide 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 under a warrant issued under section 98A
2: A person must not attempt to deceive or knowingly mislead the Commission in relation to any matter before it.
3: A person must not, having been required to appear before the Commission in accordance with section 98(1)﻿(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 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; or
b: in any other case, a fine not exceeding $300,000.
5: A proceeding for an offence against subsection (4) may be commenced within 3 years after the matter giving rise to the contravention was discovered or ought reasonably to have been discovered. 1986 No 5 s 103 Exemption for agreements for collective negotiation
184: Power to exempt from sections 27 and 30 of Commerce Act 1986
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations—
a: exempting a specified person or class of persons from sections 27 30
b: prescribing the terms and conditions (if any) of the exemption.
2: The Minister’s reasons for making the recommendation (including why the exemption is appropriate) must be published together with the regulations.
3: Regulations made under this section 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 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.
185: Minister’s recommendation about granting exemption
1: The Minister may recommend that regulations under section 184
a: for the purpose of enabling the specified person or class of persons to enter into, or arrive at, an agreement to collectively negotiate 1 or more supply agreements with 1 or more regulated grocery retailers; and
b: after taking account of the following criteria:
i: any efficiencies that are likely to result from enabling specified persons or classes of persons to enter into, or arrive at, agreements for collective negotiation in accordance with the exemption:
ii: any lessening in competition that may result from granting the exemption; and
c: after consulting—
i: the Commission; and
ii: the persons, or representatives of the persons, that the Minister considers will be substantially affected by the regulations.
2: In this section and section 186 regulated grocery retailer Part 2
186: Agreement for collective negotiation must not contain prohibited provision
1: If an exemption is granted by regulations made under section 184
2: The term is that the exemption applies in relation to—
a: an agreement for collective negotiation only if that agreement does not contain a prohibited provision; and
b: a provision in an agreement for collective negotiation only if that provision is not a prohibited provision.
3: In this section, a provision is a prohibited provision
a: preventing, restricting, or limiting the supply of goods or services from a party to the agreement for collective negotiation to a regulated grocery retailer:
b: preventing, restricting, or limiting a party to the agreement for collective negotiation from entering into or arriving at an agreement with a regulated grocery retailer other than in accordance with the agreement for collective negotiation.
187: Effect of contravention of exemption conditions generally
1: The contravention of a term or condition of an exemption provided by regulations made under section 184
2: Despite subsection (1), the regulations may provide that a contravention of a specified term or condition is not a contravention of that obligation.
188: Effect of contravention of specified exemption conditions
1: This section applies if the regulations provide that a contravention of a specified term or condition is not a contravention of the obligation to which the exemption applies.
2: A person that contravenes the specified term or condition is liable to a civil liability remedy (including an order to pay a pecuniary penalty or compensation). Guidance note
See subpart 3
189: Register of agreements for collective negotiation
1: This section applies if an exemption is granted by regulations made under section 184
2: The Commission must maintain and publish a register that lists all current agreements for collective negotiation that are notified to the Commission (if any).
3: The register must contain the information prescribed by the regulations (if any).
4: The regulations must require a copy of the collective negotiation agreement to be provided to the Commission, as a condition of the exemption.
3: Disclosure standards
190: Participant must comply with disclosure standard
1: A participant to which a disclosure standard applies must comply with the standard.
2: A person that contravenes this section is liable to a civil liability remedy (including an order to pay a pecuniary penalty or compensation). Guidance note
See subpart 3
191: Commission may issue disclosure standards
1: The Commission may issue disclosure standards.
2: A disclosure standard may apply to all participants, a particular participant, or a class of participants.
3: A disclosure standard issued 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 The maker must publish it in accordance with the Legislation (Publication) Regulations 2021 LA19 s 74(1)﻿(aa) 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.
192: Criteria for issuing disclosure standards
The Commission may issue a disclosure standard only if the Commission is satisfied that the standard is necessary or desirable for either or both of the following purposes:
a: to enable the Commission to monitor competition and efficiency in the grocery industry:
b: to ensure that sufficient information is readily available to the Commission to assess whether the purpose of this Act is being met.
193: Process for issuing disclosure standards
1: The Commission may use any process that it considers appropriate to develop a disclosure standard, but must—
a: publish a draft disclosure standard; and
b: publish a statement of its reasons for proposing to issue a disclosure standard; and
c: consult the persons, or representatives of the persons, that the Commission considers will be substantially affected by the disclosure standard.
2: After issuing a draft standard, the Commission must publish a statement of its reasons for issuing a disclosure standard.
194: Subject matter of disclosure standards
1: A disclosure standard may deal with, or otherwise relate to, 1 or more of the following matters:
a: the disclosure of information to the Commission about any matter in connection with the grocery industry, including information about any of the following:
i: any agreements that a participant has entered into or arrived at:
ii: prices, terms, and conditions for the wholesale supply of groceries:
iii: financial statements (including projected financial statements):
iv: financial and non-financial performance measures:
v: costs, revenues, and margins:
vi: quality performance measures and statistics:
vii: private label products (for example, information about the proportion of retail sales of particular categories that are of private label products):
viii: store details ( see
ix: sales of goods and services by a grocery retailer (for example, the amount of total sales and the amount of sales of different categories of goods or services):
x: sales of groceries (for example, the amount of total sales and the amount of sales of different categories of groceries):
xi: number and details of complaints received from consumers, suppliers, wholesale customers, or other persons:
b: assumptions, policies, and methodologies used or applied in any area referred to in paragraph (a) or any other areas:
c: the circumstances in which the information must be disclosed (for example, specifying the frequency with which information must be disclosed or requiring information to be disclosed on the occurrence of a specified event):
d: requirements relating to publishing, or otherwise making available, information to the Commission, particular persons or classes of persons, or the public generally:
e: requirements for certifying the information by statutory declaration or otherwise:
f: requirements for how information must be provided:
g: requirements with which information that is provided must comply:
h: requirements relating to record keeping and the retention of information (including the methodologies that must be applied in recording information).
2: For the purposes of subsection (1)﻿(a)﻿(viii), store details
a: address and brand:
b: revenue for each stock-keeping unit, number of stock-keeping units sold, and cost of goods (in any product category) sold for each stock-keeping unit:
c: characteristics of each stock-keeping unit, such as the barcode, article description, units of measurement, and product category:
d: financial position or performance:
e: store characteristics, such as the store size, opening hours, date of store opening, date of most recent renovation, and number of checkouts (self-service and assisted).
195: Amendment and revocation of disclosure standards
A disclosure standard may be amended or revoked under section 191
a: sections 192 193
b: section 192
4: Regulations
196: Regulations
1: The Governor-General may, by Order in Council, make regulations—
a: providing for anything this Act says may or must be provided for by regulations:
b: prescribing fees and charges payable in respect of any matter under this Act or the manner in which fees and charges may be calculated:
c: prescribing goods or a product category as being excluded from the definition of groceries under section 5(1)
d: providing for any provision or provisions of Parts 2 3 P A
i: P were a franchisee or transacting shareholder of A; and
ii: for the purpose of section 30
e: prescribing whether a provision of the grocery supply code gives rise to a pecuniary penalty under section 126 127 129
f: prescribing whether a provision of the wholesale code gives rise to a pecuniary penalty under section 126 127 129
g: prescribing that a contravention of a term or condition of an exemption made under section 184 section 188
h: providing for anything incidental that is necessary for carrying out, or giving full effect to, this Act.
2: Regulations made under this section are secondary legislation ( see Part 3
3: The following applies to regulations under subsection (1)﻿(c) (which relates to the definition of groceries):
a: the regulations may be made only on the recommendation of the Minister:
b: the Minister may make a recommendation only if the Minister—
i: has had regard to the purpose of this Act; and
ii: is satisfied that the extent of the exclusion is not broader than is reasonably necessary to address the matters that gave rise to the regulations.
4: The following applies to regulations under subsection (1)﻿(e) or (f) (which relate to the level of pecuniary penalty for contravention of the grocery supply code or the wholesale code):
a: the regulations may be made only on the recommendation of the Minister:
b: the Minister may make a recommendation only if—
i: the Commission has given the Minister a recommendation about those regulations; and
ii: the Minister has had regard to the Commission’s recommendation:
c: in deciding whether to make a recommendation, the Minister may do any of the following:
i: accept or reject the Commission’s recommendation:
ii: request that the Commission reconsider any matter (such as an error, an oversight, or competing policy interests):
iii: make any other decision that the Minister considers is in the public interest. 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.
197: Regulations relating to levy for dispute resolution scheme
1: Every regulated grocery retailer that is included in a prescribed class of specified regulated grocery retailers must pay to the Minister in each financial year or part financial year (as the case may require) a prescribed levy.
2: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations providing for the levy.
3: The levy must be prescribed on the basis that the following costs should be met fully out of the levy:
a: a portion of the costs of the provider of the dispute resolution scheme, where the size of the portion to be met by the levy under this Act is determined by the Minister; and
b: the cost of collecting the levy money.
4: The levy may be prescribed on the basis that any actual cost that could have been, but has not been, recovered as a levy shortfall for a year may be recovered (along with any financing charge) over any period of up to 5 years.
5: The regulations may—
a: specify the class or classes of specified regulated grocery retailers that are required to pay a levy:
b: specify the amount of the levy, or method of calculating or ascertaining the amount of the levy:
c: include in the levy, or provide for the inclusion in the levy, any shortfall in recovering the actual costs:
d: refund, or provide for refunds of, any over-recovery of the actual costs:
e: provide for the payment and collection of the levy:
f: provide different levies for different classes of regulated grocery retailers:
g: specify the financial year or part financial year to which a levy applies, and apply that levy to that financial year or part financial year and each subsequent financial year until the levy is revoked or replaced:
h: require payment of a levy for a financial year or part financial year:
i: authorise a person to whom a levy is payable to refund or waive, in whole or in part and on the conditions that may be prescribed, payment of the levy by 1 or more named persons.
6: The amount of any unpaid levy is recoverable in any court of competent jurisdiction as a debt due to the Minister on behalf of the Crown.
7: The Minister must ensure that each levy payment is paid into a Crown Bank Account and is separately accounted for.
8: Regulations made under this section are secondary legislation ( see Part 3 1986 No 5 s 53ZE 2001 No 103 s 155ZN(2), (4) 2011 No 5 s 68 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 referred to in subsection (8) 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.
198: Miscellaneous provisions relating to fees
1: Regulations may authorise a person to whom a fee is payable to refund or waive, in whole or in part and on any conditions that may be prescribed, payment of the fee by 1 or more named persons.
2: A person to whom a fee is payable may refuse to perform or exercise a function, duty, or power until the fee is paid.
3: Any fee or other amount payable to a person under this Act is recoverable by the person in any court of competent jurisdiction as a debt due to the person.
6: Amendments to other legislation
Amendments to Commerce Act 1986
199: Principal Act
Sections 200 201 Commerce Act 1986 2023-07-10 Commerce Act 1986
200: Section 2 amended (Interpretation)
In section 2(1) member of the Commission
ba: means the Grocery Commissioner appointed under section 167 of the Grocery Industry Competition Act 2023
201: Section 9 amended (Membership of Commission)
After section 9(3)
3A: One of the members must be appointed by the Governor-General as Grocery Commissioner under section 167 of the Grocery Industry Competition Act 2023 Amendments to Fair Trading Act 1986
202: Principal Act
Sections 203 to 215 Fair Trading Act 1986 2023-07-10 Fair Trading Act 1986
203: Section 2 amended (Interpretation)
1: In section 2(1) standard form small trade contract
2: In section 2(1) grocery supply contract section 26C specified trade contract section 26C standard form trade contract section 46I section 46J
3: In section 2(1) unfair contract term small trade contract specified trade contract
204: Section 26B amended (Unfair contract terms in standard form small trade contracts)
1: In the heading to section 26B standard form small trade contracts standard form trade contracts
2: In section 26B standard form small trade contract standard form trade contract
205: Section 26C replaced (Definition of small trade contract)
Replace section 26C
26C: Definition of specified trade contract
1: In this Act, unless the context otherwise requires, a contract is a specified trade contract
2: This subsection applies to a contract (a small trade contract
a: each party to it is engaged in trade; and
b: it is not a consumer contract; and
c: it does not comprise or form part of a trading relationship that exceeds the annual value threshold when the relationship first arises.
3: This subsection applies to a contract (a grocery supply contract
a: each party to it is engaged in trade; and
b: it is not a consumer contract; and
c: it is a contract between—
i: at least 1 regulated grocery retailer (within the meaning of Part 2 of the Grocery Industry Competition Act 2023
ii: at least 1 supplier; and
d: it relates to the acquisition of goods in respect of which the end-user is a consumer; and
e: it does not comprise or form part of a trading relationship that exceeds the annual value threshold when the relationship first arises.
4: If a party to a proceeding alleges that a contract is a specified trade contract, the contract is presumed to be a specified trade contract unless any other party to the proceeding proves otherwise.
5: This section is subject to section 26E
206: Section 26D amended (Small trade contracts: trading relationship, annual value threshold, and other definitions)
1: In the heading to section 26D Small trade contracts Specified trade contracts
2: In section 26D(1) section 26C(1)﻿(c) section 26C
3: Replace section 26D(3)﻿(b)
b: exceeds an annual value threshold when the relationship first arises
i: it includes a transparent term or transparent terms providing for consideration (including GST, if applicable) of at least the specified amount to be paid under it, in relation to any annual period, for the goods, services, or interest in land concerned; or
ii: consideration (including GST, if applicable) of at least the specified amount is more likely than not to become payable under the relationship, in relation to any annual period, for the goods, services, or interest in land concerned.
4: After section 26D(4)﻿(c)
d: specified amount
i: in relation to a small trade contract, means $250,000; and
ii: in relation to a grocery supply contract, means $1 million.
5: In section 26D(4) annual value threshold annual value threshold of $250,000
207: Section 26E amended (Regulations relating to definition of small trade contract)
1: In the heading to section 26E small trade contract specified trade contract
2: In section 26E(1) small trade contract small trade contract or grocery supply contract
208: Section 37 amended (Jurisdiction of High Court)
In section 37(1)﻿(g) by the Commission
209: Section 38 amended (Jurisdiction of District Court)
In section 38(1)﻿(e) by the Commission
210: Section 46H amended (Application by Commission for declaration of unfair contract term)
1: In the heading to section 46H by Commission
2: In section 46H(1) standard form small trade contract standard form trade contract
3: After section 46H(2)
3: Any person may apply to the High Court or the District Court (at their choice) for a declaration under section 46I
211: Section 46I amended (Declaration of unfair contract terms)
1: Replace section 46I(1)
1: The High Court or the District Court may,—
a: on application by the Commission, declare that a term in a standard form consumer contract or standard form trade contract is an unfair contract term; or
b: on application by any person, declare that a term in a grocery supply contract that is a standard form trade contract is an unfair contract term.
2: In section 46I(2) small trade contract specified trade contract
212: Section 46K amended (Terms that may not be declared to be unfair contract terms)
In section 46K(1) standard form small trade contract standard form trade contract
213: Section 46L amended (When term in consumer contract or small trade contract is unfair)
1: In the heading to section 46L small trade contract specified trade contract
2: In section 46L(1), (2), and (3) small trade contract specified trade contract
214: Section 46M amended (Examples of unfair contract terms)
In section 46M small trade contract specified trade contract
215: Schedule 1AA amended
In Schedule 1AA
a: insert the Part set out in Schedule 3
b: make all necessary consequential amendments.