Commerce Amendment Act 2022

1: Title
This Act is the Commerce Amendment Act 2022.
2: Commencement
1: Section 31
2: Sections 4(1), (3), (4), (6), (8), and (9) 8 9 22 23 27(8) 30 32 38 41 to 47
3: Section 48(2)
4: The rest of this Act commences on the first anniversary of Royal assent.
3: Principal Act
This Act amends the Commerce Act 1986 principal Act 2022-04-06 Commerce Act 1986 See section 2(1) — section 31 only. 2022-05-05 Commerce Act 1986 See section 2(2) — sections 4(1), (3), (4), (6), (8), and (9), 8, 9, 22, 23, 27(8), 30, 32, 38, and 41 to 44. 2022-10-05 Commerce Act 1986 See section 2(3) — section 48(2) only. 2023-04-05 Commerce Act 1986 See section 2(4) — remaining sections of Act come into force.
1: Amendments to principal Act
4: Section 2 amended (Interpretation)
1: In section 2(1) overseas regulator public service agency
2: In section 2(1) substantial
a: sections 36 and 36A
b: section 47(3) and (4); and
c: Part 4
3: In section 2(1) acquire to goods or services that are
4: In section 2(1) business
b: in the course of which goods or services are acquired or supplied otherwise than free of charge
5: In section 2(1) give effect to or understanding understanding, or covenant
6: In section 2(1) price or the acquisition or disposition of any interest in land
7: In section 2(1) provision provision
a: in relation to a covenant, means a term of the covenant; and
b: in relation to an understanding or arrangement, means any matter forming part of or relating to the understanding or arrangement
8: In section 2(1) supply supply
a: in relation to goods, includes supply (or resupply) by way of gift, sale, exchange, lease, hire, or hire purchase; and
b: in relation to services, includes provide, grant, or confer; and
c: in relation to goods or services that are interests in land, includes disposition
9: In section 2(1) trade or to the disposition or acquisition of any interest in land
10: Repeal section 2(1A)
11: In section 2(2)﻿(a)﻿(iii) or the giving of, or the giving effect to a provision of,
12: In section 2(2)﻿(b)﻿(iii) or the giving of, or the giving effect to a provision of,
13: After section 2(6)﻿(c)
d: a reference to a party to a covenant means a person who—
i: is bound by, or entitled to the benefit of, the covenant; or
ii: would be bound by, or entitled to the benefit of, the covenant if not for section 28(4) or 30C.
14: In section 2(8)﻿(a)
a: after understanding arrived at , or covenant given or required to be given,
b: replace or arrived at , arrived at, given, or required to be given
15: In section 2(9) or understanding understanding, or covenant
5: Section 3 amended (Certain terms defined in relation to competition)
1: In section 3(1A) the reference in section 36A(2)﻿(b) and (c) in section 36A
2: Repeal section 3(1B) and (1C)
3: In section 3(7) and 28 , 28, 36 36A
6: Section 6A amended (Special provisions relating to application of Act to the Crown in right of Australia and to Australian Crown corporations)
1: In section 6A Section 36A, and Parts 6 and 7, in so far as they relate to a contravention of, or confer powers that may be exercised in relation to, that section, The provisions referred to in subsection (2)
2: In section 6A
2: For the purposes of subsection (1)
a: section 36A
b: Part 5, in so far as it relates to section 36A
c: Schedule 1AA, in so far as it relates to section 36A
d: Parts 6 and 7, in so far as they relate to a contravention of, or confer powers that may be exercised in relation to,—
i: section 36A
ii: Part 5 or Schedule 1AA (in so far as that Part or that schedule relates to section 36A
7: Section 7 amended (Law relating to restraint of trade and breaches of confidence not affected)
1: Replace the heading to section 7 Relationship with law on restraint of trade
2: Repeal section 7(2)
3: In section 7(3) or subsection (2)
8: Section 9 amended (Membership of Commission)
1: In section 9(1) no more than 6 no more than 8
2: In section 9(2) no more than 5 no more than 7
9: Section 13 amended (Termination of appointment of members)
After section 13(5)
6: To avoid doubt, a former member who is deemed to continue as a member under subsection (4) is not a member for the purposes of determining the number of members under section 9(1) or (2).
10: Cross-heading above section 27 replaced
Replace the cross-heading above section 27 Contracts, arrangements, understandings, or covenants substantially lessening competition
11: Section 28 amended (Covenants substantially lessening competition prohibited)
In section 28(6) Where For the purposes of this section, where
12: Section 30 amended (Prohibition on entering into or giving effect to cartel provision)
1: Replace the heading to section 30 Contracts, arrangements, understandings, or covenants containing cartel provisions prohibited
2: After section 30(1)﻿(a)
ab: give, or require the giving of, a covenant that contains a cartel provision; or
13: Section 30A amended (Meaning of cartel provision and related terms)
In section 30A or understanding understanding, or covenant
14: Section 30B amended (Additional interpretation relating to cartel provisions)
In section 30B(a) or understanding understanding, or covenant
15: Section 30C amended (Cartel provisions generally unenforceable)
Replace section 30C(2)
2: However, nothing in subsection (1) affects the enforceability of a cartel provision in—
a: a contract or covenant to which section 31 applies; or
b: a contract to which section 32, 33, 44A(4) or (5), or 44B applies.
16: Section 31 amended (Exception for collaborative activity)
1: After section 31(1) Exception for giving, or requiring the giving of, covenant containing cartel provision
1A: Nothing in section 30(1)﻿(ab)
a: the person and 1 or more other parties to the covenant are involved in a collaborative activity; and
b: the cartel provision is reasonably necessary for the purpose of the collaborative activity.
2: In section 31(2)﻿(a) or understanding understanding, or covenant
3: In section 31(3)﻿(a) or understanding understanding, or covenant
17: Sections 36 and 36A and cross-heading above section 36 replaced
Replace sections 36 36A Misuse of market power
36: Misuse of market power
1: A person that has a substantial degree of power in a market must not engage in conduct that has the purpose, or has or is likely to have the effect, of substantially lessening competition in—
a: that market; or
b: any other market in which the person, or an interconnected person,—
i: supplies or acquires, or is likely to supply or acquire, goods or services; or
ii: supplies or acquires, or is likely to supply or acquire, goods or services indirectly through 1 or more other persons.
2: In this section, a person has a substantial degree of power in a market
a: the person has a substantial degree of power in the market; or
b: the person, together with 1 or more interconnected persons, has a substantial degree of power in the market; or
c: 1 or more interconnected persons of the person have a substantial degree of power in the market; or
d: 2 or more interconnected persons together have a substantial degree of power in the market. Competition and Consumer Act 2010 s 46 (Aust)
36A: Misuse of market power in trans-Tasman markets
1: Subsection (2)
a: the person has a substantial degree of power in a market in New Zealand:
b: the person has a substantial degree of power in a market in Australia:
c: the person has a substantial degree of power in a market in New Zealand and Australia.
2: The person must not engage in conduct that has the purpose, or has or is likely to have the effect, of substantially lessening competition in—
a: a market in New Zealand in which the person has a substantial degree of power (if any) and that is not a market exclusively for services; or
b: any other market in New Zealand, not being a market exclusively for services, in which the person, or an interconnected person,—
i: supplies or acquires, or is likely to supply or acquire, goods or services; or
ii: supplies or acquires, or is likely to supply or acquire, goods or services indirectly through 1 or more other persons.
3: In this section, a person has a substantial degree of power in a market
a: the person has a substantial degree of power in the market; or
b: the person, together with 1 or more interconnected persons, has a substantial degree of power in the market; or
c: 1 or more interconnected persons of the person have a substantial degree of power in the market; or
d: 2 or more interconnected persons together have a substantial degree of power in the market.
4: In this section, market
5: Section 36A section 36 Competition and Consumer Act 2010 s 46A (Aust)
18: Section 44A amended (Exceptions in relation to international liner shipping services)
In section 44A(8) cartel provision
19: Section 44B amended (Further exception in relation to international liner shipping services (price fixing in relation to space on ship))
After section 44B(4)
5: In this section, cartel provision
20: Section 45 repealed (Exceptions in relation to intellectual property rights)
Repeal section 45
21: Section 46 amended (Saving in respect of business acquisitions)
1: Replace section 46(a)
a: to any of the following to the extent that the contract, arrangement, understanding, or covenant provides for the acquisition or disposition of assets of a business or shares:
i: entering into a contract or an arrangement:
ii: arriving at an understanding:
iii: giving, or requiring the giving of, a covenant; or
2: In section 46(b) or understanding understanding, or covenant
22: Section 48 amended (Interpretation)
In section 48 department
23: Section 51A amended (Competition study terms of reference)
In section 51A departments public service agencies
24: Section 58 amended (Commission may grant authorisation for restrictive trade practices)
After section 58(4)
6A: A person who wishes to engage in conduct to which that person considers section 36 36A
6B: A person who wishes to enter into a contract or an arrangement, or arrive at an understanding, that contains a provision that is, or might be, a cartel provision may apply to the Commission for an authorisation to do so, and the Commission may grant an authorisation for that person to enter into the contract or arrangement, or arrive at the understanding.
6C: A person who wishes to give, or require the giving of, a covenant that contains a provision that is, or might be, a cartel provision may apply to the Commission for an authorisation to do so, and the Commission may grant an authorisation for that person to give, or require the giving of, the covenant.
6D: A person who wishes to give effect to a provision of a contract, arrangement, understanding, or covenant that is, or might be, a cartel provision may apply to the Commission for an authorisation to do so, and the Commission may grant an authorisation for that person to give effect to that provision.
25: Section 58A amended (Effect of authorisation)
1: In section 58A(1) and (2) or 30C 30C, 36 36A
2: In section 58A(3) subsection (3) of section 58 remains in force, nothing in section 28 shall prevent section 58(3) remains in force, nothing in section 28, 30, 30C, 36 36A
3: In section 58A(4) subsection (4) of section 58 remains in force, nothing in section 28 shall prevent section 58(4) remains in force, nothing in section 28, 30, 30C, 36 36A
4: After section 58A(4)
4A: While an authorisation under section 58(6A) 36 36A
4B: While an authorisation under section 58(6B) 36 36A
a: entering into the contract or arrangement, or arriving at the understanding, to which the authorisation relates; or
b: in accordance with the authorisation, giving effect to any cartel provision in the contract, arrangement, or understanding to which the authorisation relates.
4C: While an authorisation under section 58(6C) 36 36A
a: giving, or requiring the giving of, the covenant to which the authorisation relates; or
b: giving effect to any cartel provision of the covenant to which the authorisation relates in accordance with the authorisation.
4D: While an authorisation under section 58(6D) 36 36A
5: In section 58A(5) subsection (7) of section 58 remains in force, nothing in section 37 shall prevent section 58(7) remains in force, nothing in section 36 36A
6: In section 58A(6) subsection (8) of section 58 remains in force, nothing in section 38 shall prevent section 58(8) remains in force, nothing in section 36 36A
26: Section 58B amended (Additional provisions relating to authorisations)
1: Replace section 58B(1)
1: An authorisation granted to a person under section 58 has effect as if it were also an authorisation in the same terms to every other person named or referred to in the application for the authorisation as—
a: a party to the contract, arrangement, understanding, conduct, practice, or act to which the application relates; or
b: a person who is or would be bound by, or entitled to the benefit of, the covenant to which the application relates.
2: In section 58B(2)﻿(b) or understanding understanding, or covenant
27: Section 59 amended (Contracts or covenants subject to authorisation not prohibited under certain conditions)
1: In section 59(1)﻿(a) section 27 or 30(1)﻿(a)
2: After section 59(1)﻿(a)
aa: a contract the entry into which is, or the giving effect to a provision of which would be, conduct to which section 36 or 36A
3: In section 59(1)﻿(b) section 28 or 30(1)﻿(ab)
4: After section 59(1)﻿(b)
c: a covenant the requiring of the giving of which, or the giving of which, is conduct to which section 36 or 36A
5: In section 59(2)﻿(a) to which section 27 applies described in subsection (1)﻿(a)
6: After section 59(2)﻿(a)
aa: in the case of a contract described in subsection (1)﻿(aa) section 36 or 36A
7: In section 59(2)﻿(b)
a: replace to which section 28 applies described in subsection (1)﻿(b) or (c)
b: after to it , or to engage in the conduct to which section 36 or 36A
8: After section 59(2)
3: The condition referred to in subsection (2)﻿(a) or (b) may provide for the provision to come into force, or the covenant to have effect, as the case may be, on the basis of an interim authorisation being granted under section 65AAA
a: the interim authorisation ceases to be in force; and
b: the authorisation under section 58 has not been granted.
9: Replace section 59(3) subsection (8)
3: The condition referred to in subsection (2)﻿(a), (aa) section 65AAA
a: the interim authorisation ceases to be in force; and
b: the authorisation under section 58 has not been granted.
28: Section 59A amended (When Commission may grant authorisation)
In section 59A(1)﻿(b) arrived at, or a covenant given,
29: Section 61 amended (Determination of applications for authorisation of restrictive trade practices)
1: In section 61 shall must
2: In section 61(6) pursuant to an application under section 58(1) to (4) relating to an application under section 58(1) to (6A)
3: In section 61(6)﻿(d) covenant— covenant; or
4: After section 61(6)﻿(d)
e: engaging in the conduct—
5: Replace section 61(8)
8: The Commission must not make a determination granting an authorisation relating to an application under section 58(6B)
a: entry into the contract or arrangement, or arriving at the understanding:
b: giving, or requiring the giving of, the covenant:
c: giving effect to the provision of the contract, arrangement, understanding, or covenant:
d: engaging in the practice of resale price maintenance:
e: the act or conduct.
9: For the purposes of section 58(6B) to (6D) subsection (8)﻿(a) to (c)
30: New section 65AAA inserted (Commission may grant interim authorisation)
After section 65
65AAA: Commission may grant interim authorisation
1: The Commission may make a determination in writing granting an interim authorisation for an application under section 58 if the Commission considers it is appropriate to do so.
2: The Commission is not required to comply with section 61(5) to (9)
3: For the purposes of this section, a reference in any of sections 58A, 58B, 59A, 59B, 61(2), 65, 92, 104, 105, and 106(10) to an authorisation must be treated as if it were a reference to an interim authorisation.
4: An interim authorisation remains in force until—
a: the applicant withdraws its application for an authorisation; or
b: the Commission revokes the interim authorisation under section 65; or
c: the Commission declines or grants the application for an authorisation under section 58.
5: Subsection (4)
31: Section 65AA amended (Applications during epidemic period)
Replace section 65AA(1)﻿(b)
b: ending at the earlier of the following:
i: the close of the 6-month period that starts on the date on which the Epidemic Preparedness (COVID-19) Notice 2020 expires or is revoked:
ii: the date on which section 24
32: Section 65AD amended (Provisional authorisations for certain applications made during epidemic period)
1: In section 65AD(4) 59(1)﻿(a) and (2)﻿(a),
2: After section 65AD(4)
4A: If section 32(1)
a: subsection (4), as in force before that amendment was made, continues to apply for the purposes of this section (as if that amendment had not been made) in respect of contracts to which section 59(1)﻿(a) of this Act applies that are entered into before section 32(1) section 59(3)
b: in respect of contracts to which section 59(1)﻿(a) of this Act applies that are entered into on or after section 32(1) section 59(3)
i: an interim authorisation granted under section 65AAA
ii: an authorisation under section 58 includes a reference to an authorisation under section 65AA.
33: Section 65A amended (Commission may give clearances relating to cartel provisions)
1: Replace section 65A(1)
1: A person who proposes to do any of the following may apply to the Commission for a clearance under this section:
a: enter into a contract or an arrangement that contains, or may contain, a cartel provision:
b: arrive at an understanding that contains, or may contain, a cartel provision:
c: give, or require the giving of, a covenant that contains, or may contain, a cartel provision.
2: In section 65A(2)﻿(a) and (b) or understanding understanding, or covenant
3: Replace section 65A(2)﻿(c)
c: the following will not have, or would not be likely to have, the effect of substantially lessening competition in a market:
i: entering into the contract or arrangement:
ii: arriving at the understanding:
iii: giving, or requiring the giving of, the covenant:
iv: giving effect to any provision of the contract, arrangement, understanding, or covenant.
34: Section 65B amended (Effect of clearance under section 65A)
1: In section 65B or understanding understanding, or covenant
2: In section 65B or 30 , 28, 30, 36 36A
3: In section 65B(a) the understanding , or giving, or requiring the giving of, the covenant
35: Section 69 amended (Effect of clearance or authorisation)
In section 69 27, 36 36A
36: Section 80C amended (Court may order certain persons to be excluded from management of body corporate)
1: After section 80C(a)
ab: given, or required the giving of, a covenant that contains a cartel provision; or
2: In section 80C(b) or understanding understanding, or covenant
37: Section 82B amended (Offence relating to cartel prohibition)
1: After section 82B(1)﻿(a)
ab: the person,—
i: in contravention of section 30(1)﻿(ab)
ii: intends, at the time the person gives or requires the giving of the covenant, to engage in price fixing, restricting output, or market allocating; or
2: In section 82B(4) section 30(1)﻿(a) , (ab)
38: Section 83 amended (Pecuniary penalties relating to business acquisitions)
1: Repeal section 83(1A)
2: In section 83(2) shall must
3: After section 83(2)
3: The amount of any pecuniary penalty must not, in respect of each act or omission, exceed,—
a: in the case of an individual, $500,000; or
b: in any other case, the greater of the following:
i: $10 million:
ii: either,—
A: if it can be readily ascertained and if the court is satisfied that the contravention occurred in the course of producing a commercial gain, 3 times the value of any commercial gain resulting from the contravention; or
B: if the commercial gain cannot readily be ascertained, 10% of the turnover of the person and all its interconnected bodies corporate (if any) in each accounting period in which the contravention occurred.
39: Section 89 amended (Other orders)
In section 89(3) person who, but for section 28(4) would be bound by or entitled to the benefit of party to
40: Section 92 amended (Persons entitled to appeal)
In section 92(ba)﻿(ii) or understanding understanding, or covenant
41: New cross-heading above section 98 inserted
Before section 98 Powers relating to evidence
42: New sections 99AA and 99AB and cross-headings inserted
After section 99 Power to share information and documents with public service agencies, statutory entities, Reserve Bank, and New Zealand Police
99AA: Sharing of information and documents with public service agencies, statutory entities, Reserve Bank, and New Zealand Police
1: The Commission may provide to a public service agency, a statutory entity, the Reserve Bank of New Zealand, or the New Zealand Police any information, or a copy of any document, that the Commission—
a: holds in relation to the performance or exercise of the Commission’s functions, powers, or duties under this Act or any other legislation; and
b: considers may assist the public service agency, statutory entity, the Reserve Bank, or the New Zealand Police in the performance or exercise of its functions, powers, or duties under this Act or any other legislation.
2: The Commission may provide information, or a copy of a document, under this section only if the Commission is satisfied that—
a: doing so will not substantially affect the performance of its other functions; and
b: appropriate protections are or will be in place for the purpose of maintaining the confidentiality of anything provided (in particular, information that is personal information within the meaning of the Privacy Act 2020).
3: The Commission may use any information, or a copy of any document, in the Commission’s performance or exercise of its functions, powers, or duties under any legislation if the information or copy is provided to the Commission—
a: by a public service agency, a statutory entity, the Reserve Bank, or the New Zealand Police under any legislation; or
b: by an overseas regulator.
4: In this section and section 99AB statutory entity
5: This section applies despite anything to the contrary in any contract, deed, or document.
6: Nothing in this section limits the Privacy Act 2020 or section 29 of the Fuel Industry Act 2020.
99AB: Commission may impose conditions on provision of information or documents
1: The Commission may impose any conditions in relation to providing information, or a copy of a document, to a public service agency, a statutory entity, the Reserve Bank of New Zealand, or the New Zealand Police (whether provided in compliance with a request or otherwise).
2: The Commission must, in considering what conditions to impose, have regard to whether conditions are necessary or desirable in order to protect the privacy of any individual.
3: The conditions may include, without limitation, conditions relating to—
a: maintaining the confidentiality of anything provided (in particular, information that is personal information within the meaning of the Privacy Act 2020):
b: the storing of, the use of, or access to anything provided:
c: the copying, returning, or disposing of copies of documents provided:
d: payment of the costs incurred by the Commission in providing anything or in generally complying with a request.
4: This section does not limit section 100. Assistance to overseas regulators
43: Section 99C amended (Definitions of terms used in sections 99B to 99P)
In section 99C overseas regulator
44: New cross-heading above section 100 inserted
After section 99P Offences, regulations, and administrative provisions
2: Transitional, related, and consequential amendments
45: Consequential amendment to Fair Trading Act 1986
1: This section amends the Fair Trading Act 1986
2: Repeal section 48A 2022-05-05 Fair Trading Act 1986
46: Consequential amendment to Takeovers Act 1993
1: This section amends the Takeovers Act 1993
2: In section 15B(2) section 48A of the Fair Trading Act 1986 section 99AA 2022-05-05 Takeovers Act 1993
47: Consequential amendment to Fuel Industry Act 2020
1: This section amends the Fuel Industry Act 2020
2: In section 29(5) Privacy Act 2020 or section 99AA 2022-05-05 Fuel Industry Act 2020
48: Schedule 1AA amended
1: In Schedule 1AA, clause 12
2: Subclause (1) section 24 see clause 20
2: In Schedule 1AA Part 4 Part 1
3: In Schedule 1AA Part 2