Commerce Amendment Act 2008

1: Title
This Act is the Commerce Amendment Act 2008.
2: Commencement
1: The following come into force on 1 April 2009
a: sections 5 30 Part 4A
b: subpart 9 of Part 4 section 4 sections 54D(3) and 54N
2: The rest of this Act comes into force on the 28th day after the date on which it receives the Royal assent.
1: Amendments to Commerce Act 1986
3: Principal Act amended
This Part amends the Commerce Act 1986 2008-10-14 Commerce Act 1986 EXCEPT FOR: the part of section 4 of this Act that inserts new subpart 9 of Part 4 of principal (other than new ss 54D(3) and 54N); and sections 5 and 30 of this Act. 2009-04-01 Commerce Act 1986 The part of section 4 of this Act that inserts new subpart 9 of Part 4 of principal (except new ss 54D(3) and 54N); and sections 5 and 30 of this Act. Replacement of Parts 4 and 4A
4: New Part 4 substituted
Part 4
4: Regulated goods or services
1: Preliminary provisions
52: Overview of Part
This Part provides for the regulation of the price and quality of goods or services in markets where there is little or no competition and little or no likelihood of a substantial increase in competition.
52A: Purpose of Part
1: The purpose of this Part is to promote the long-term benefit of consumers in markets referred to in section 52
a: have incentives to innovate and to invest, including in replacement, upgraded, and new assets; and
b: have incentives to improve efficiency and provide services at a quality that reflects consumer demands; and
c: share with consumers the benefits of efficiency gains in the supply of the regulated goods or services, including through lower prices; and
d: are limited in their ability to extract excessive profits.
2: In this Part, the purpose set out in subsection (1)
52B: Outline of Part
1: This Part provides—
a: generic provisions for imposing any 1 or more of 3 types of regulation on goods or services ( see subpart 2
b: for the Commission to determine input methodologies applying to the supply of goods or services regulated under this Part ( see subpart 3
2: The different types of regulation under this Part are as follows:
a: information disclosure regulation, under which regulated suppliers are required to disclose information in accordance with requirements determined by the Commission ( see subpart 4
b: negotiate/arbitrate regulation, under which regulated suppliers are required to negotiate with other parties on prices and quality, and, if negotiation is unsuccessful, to enter into binding arbitration ( see subpart 5
c: price-quality regulation, of which there are 2 types:
i: default/customised price-quality regulation, under which default price-quality paths are set for regulated suppliers, but individual suppliers may seek a customised price-quality path instead ( see subpart 6
ii: individual price-quality regulation, under which the Commission sets a price-quality path for an individual regulated supplier ( see subpart 7
3: Regulation of the following services is dealt with by subparts 9 to 11
a: electricity lines services ( subpart 9
b: gas pipeline services ( subpart 10
c: services at certain airports ( subpart 11
4: This section is only a guide.
52C: Interpretation
In this Part, unless the context otherwise requires,— claw-back section 52D consumer sections 54C, 54D, and 55A information disclosure requirement section 52P input methodology section 52T section 52W inquiry sections 52H to 52J price
a: means any 1 or more of individual prices, aggregate prices, or revenues (whether in the form of specific numbers, or in the form of formulas by which specific numbers are derived); and
b: includes any related terms of payment pricing methodologies publicly available
a: the document or information is available for inspection, free of charge, on an Internet site that is publicly accessible at all reasonable times; and
b: a copy of the document or information is available for inspection at all reasonable times, free of charge, at the head office of the person that is required to make it publicly available or, if the person is the Minister, at the head office of the department responsible for the administration of this Act; and
c: copies of the document may be purchased by any person at a reasonable price publicly disclose section 52P regulated regulated goods or services
a: by Order in Council made under section 52N
b: by any of subparts 9 to 11 regulated supplier section 52P section 52P determination section 52P section 52P
52D: Meaning and application of claw-back
1: A reference to the Commission applying claw-back
a: requiring a supplier to lower its prices on a temporary basis in order to compensate consumers for some or all of any over-recovery that occurred under the prices previously charged by the supplier:
b: allowing a supplier to recover some or all of any shortfall in its revenues that occurred under the prices previously charged by the supplier.
2: If the Commission requires a supplier to lower its prices, it must also require that the lowering of prices must be spread over time in order to minimise undue financial hardship to the supplier.
3: If the Commission allows a supplier to recover any shortfall, it must require that any recovery must be spread over time in order to minimise price shocks to consumers.
2: Regulating particular goods or services
52E: Overview of process if regulation imposed on goods or services
1: The process for imposing regulation under this subpart on particular goods or services involves the following steps:
a: the Commission holds an inquiry into whether, and if so how, to regulate the goods or services, and then makes a recommendation to the Minister under section 52K
b: the Minister considers the Commission’s recommendation and decides whether or not to recommend to the Governor-General that regulation be imposed and, if so, which type or types of regulation:
c: if the Minister decides to recommend regulation, an Order in Council may be made under section 52N
d: for each type of regulated goods or services, the Commission makes a section 52P
2: This section is only a guide.
52F: Effect of goods or services being subject to regulation
1: If goods or services are subject to regulation of a particular type, every regulated supplier of those goods or services must comply with—
a: the requirements of this Part relating to that type of regulation; and
b: every section 52P
2: Sections 86 to 87C section 52P
3: The Commission is entitled to exercise any of its powers under this Act for the purpose of monitoring compliance by regulated suppliers with regulation under this Part.
52G: When goods or services may be regulated
1: Goods or services may be regulated under this Part only if—
a: the goods or services are supplied in a market where there is both—
i: little or no competition; and
ii: little or no likelihood of a substantial increase in competition; and
b: there is scope for the exercise of substantial market power in relation to the goods or services, taking into account the effectiveness of existing regulation or arrangements (including ownership arrangements); and
c: the benefits of regulating the goods or services in meeting the purpose of this Part materially exceed the costs of regulation.
2: In any consideration of this test, the part of the test in subsection (1)(c) subsection (1)(a) and (b) Commission inquiry
52H: How inquiry triggered
1: The Commission—
a: must hold an inquiry if required to do so by the Minister; and
b: may hold an inquiry on its own initiative.
2: Any requirement by the Minister must—
a: be in writing; and
b: specify the date by which the Commission must make a recommendation under section 52K
52I: Commission inquiry into particular goods or services
1: In conducting an inquiry into particular goods or services, the Commission must consider—
a: whether the test in section 52G
b: if that test is satisfied, whether the goods or services should be regulated; and
c: if so, how the goods or services should be regulated, including—
i: how the goods or services should be defined; and
ii: which type or types of regulation (as set out in section 52B(2)
iii: how that type or those types of regulation should apply to suppliers of the goods or services.
2: As part of an inquiry into particular goods or services, the Commission—
a: must determine (and then apply) input methodologies for the supply of the goods or services, in accordance with subpart 3
b: must, when carrying out the analysis required by section 52G(1)(c)
3: As part of that qualitative analysis, the Commission must, as far as practicable,—
a: quantify material effects on allocative, productive, and dynamic efficiency; and
b: quantify material distributional and welfare consequences on suppliers and consumers; and
c: assess the direct and indirect costs and risks of any type of regulation considered, including administrative and compliance costs, transaction costs, and spill-over effects.
4: As part of an inquiry, the Commission must, when considering which type of regulation might be imposed,—
a: assess the benefits of imposing different types of regulation in meeting the purpose of this Part against the costs of imposing those types of regulation; and
b: consider what would be the most cost-effective type or types of regulation in the circumstances.
5: During an inquiry, the Commission may have regard to any other matters it considers necessary or desirable for the purpose of the inquiry.
52J: Process of inquiry
1: At the start of an inquiry, the Commission must publish in the Gazette
a: in the case of an inquiry required by the Minister, the Minister’s requirements; and
b: in the case of an inquiry on the initiative of the Commission, the terms of reference for the inquiry.
2: The notice must set out indicative time frames and key steps.
3: During the course of an inquiry, the Commission—
a: may publish, in whatever way it considers appropriate, further notices, consultation documents, or papers; and
b: must give interested persons a reasonable opportunity to give their views; and
c: may hold 1 or more conferences; and
d: must have regard to any views received from interested persons within any time frames set.
4: Before the end of an inquiry, the Commission must publish a proposed recommendation for consultation.
52K: Commission's recommendation following inquiry
1: At the end of an inquiry, having considered the matters in section 52I
2: If the recommendation is that particular goods or services should be regulated, the recommendation must state the following:
a: how the goods or services should be specified:
b: which type or types of regulation should apply to the goods or services:
c: what input methodologies apply:
d: if information disclosure regulation is recommended, the material provisions of the information disclosure requirements:
e: if negotiate/arbitrate regulation is recommended, the material provisions of the negotiation process and arbitration process:
f: if default/customised price-quality regulation is recommended, the default price path and quality standards:
g: if individual price-quality regulation is recommended, the material provisions to apply.
3: The Minister must publish the Commission’s recommendation, and may do so in whatever way he or she considers appropriate.
4: To avoid doubt, a recommendation by the Commission is not a determination of the Commission. Order in Council imposing regulation
52L: Minister's consideration
1: The Minister must consider any recommendation of the Commission made under section 52K
2: As part of that consideration, the Minister—
a: must consult with the relevant sector Minister (such as the Minister of Energy or the Minister of Transport); and
b: may request further information or advice from the Commission.
3: If the Minister proposes, contrary to the recommendation of the Commission, that the goods or services should be regulated, or that they should be subject to a type of regulation not recommended by the Commission, the Minister must ask the Commission for written advice on what the material provisions of the relevant section 52P
4: Any request by the Minister under subsection (3)
5: If the Commission receives a request under subsection (3)
a: consult with interested parties; or
b: reopen its inquiry, in which case section 52J
52M: Minister's decision and recommendation
1: Having considered the Commission’s recommendation in accordance with section 52L section 52L(3)
a: decide whether, in the opinion of the Minister, the goods or services should be regulated; and
b: if the goods or services are to be regulated, decide which type or types of regulation are to apply; and
c: make a recommendation to that effect, if the goods or services are to be regulated.
2: The Minister's decision may be the same as, or different from, the Commission’s recommendation under section 52K
3: If the Minister's decision is different from the Commission's recommendation, the Minister must set out the reasons for the decision and make the decision, with the reasons, publicly available.
52N: Order in Council imposing regulation
1: The Governor-General may, on the recommendation of the Minister made under section 52M
2: The order must—
a: declare that the goods or services are regulated; and
b: state which type or types of regulation the goods or services are subject to.
3: The order may identify the goods or services it relates to by reference to goods or (with all necessary modifications) services—
a: supplied in or for delivery within specified regions, areas, or localities in New Zealand; or
b: supplied in different quantities, qualities, grades, or classes; or
c: supplied by or to or for the use of different persons or classes of persons; or
d: any or all of paragraphs (a) to (c)
4: Subsection (3)
5: The order must include an expiry date, which must be a date not later than 20 years after its date of commencement.
6: The order is a regulation within the meaning of the Regulations (Disallowance) Act 1989 and the Acts and Regulations Publication Act 1989.
52O: Revocation or amendment of Order in Council
1: An Order in Council made under section 52N
2: In subsection (1) significantly amended
a: alters the type or types of regulation applying to the goods or services; or
b: materially alters the goods or services to which the regulation applies, so that either—
i: the goods or services, or any of them, are no longer regulated; or
ii: goods or services that were not identified in the original order are now subject to regulation.
3: An Order in Council made under section 52N Commission determination about how regulation applies
52P: Determinations by Commission under this section
1: The Commission must make determinations under this section specifying how the relevant forms of regulation apply to suppliers of regulated goods or services.
2: Determinations must be made,—
a: in the case of goods or services declared to be regulated by an Order in Council under section 52N
b: in the case of goods or services declared to be regulated under any of subparts 9 to 11 sections 54I, 54J, 54K, 55E, and 56E
3: Determinations must—
a: set out, for each type of regulation to which the goods or services are subject, the requirements that apply to each regulated supplier; and
b: set out any time frames (including the regulatory periods) that must be met or that apply; and
c: specify the input methodologies that apply; and
d: be consistent with this Part.
4: It is not necessary for a single determination to address all matters relating to particular regulated goods or services, or to a supplier of regulated goods or services, and different parts of any determination may come into effect at different times.
5: If a determination under this section is made following an inquiry and a recommendation under section 52K subsection (3)(a) section 52L(3)
6: A determination under this section may require a supplier to comply with the requirements set out in any other determination that has been made under this section in respect of regulated goods or services of the same type.
7: The Commission must, as soon as practicable after making a determination under this section,—
a: give a copy of the determination to each supplier to whom the determination relates; and
b: publish a summary of it in the Gazette
c: make the whole determination publicly available.
8: Each supplier to whom the determination relates must comply with the requirements imposed by the determination.
52Q: Amendment of section 52P determination
1: A section 52P
2: However, the Commission is not required to conduct an inquiry before amending a determination.
3: An amendment forms part of the determination it amends.
4: An amendment comes into force on the date specified in the amendment, which must be (except in the case of an amendment relating to a customised price-quality path that takes effect under section 53ZA(3) Gazette
5: The Commission must, as soon as practicable after making an amendment,—
a: give a copy of the amendment to each supplier to whom the determination relates; and
b: publish the amendment, or a summary of the amendment, in the Gazette
c: make a copy of the determination, as amended by the amendment, publicly available.
3: Input methodologies
52R: Purpose of input methodologies
The purpose of input methodologies is to promote certainty for suppliers and consumers in relation to the rules, requirements, and processes applying to the regulation, or proposed regulation, of goods or services under this Part.
52S: How published input methodologies apply
Every relevant input methodology relating to the supply of particular goods or services that is published under section 52W
a: if the goods or services are regulated, by every regulated supplier of the goods or services in accordance with the relevant section 52P
b: in all cases, by every person entitled or required under this Act to recommend, decide, or determine—
i: whether or how regulation under this Part should apply to the goods or services; or
ii: the prices or quality standards applying to the goods or services.
52T: Matters covered by input methodologies
1: The input methodologies relating to particular goods or services must include, to the extent applicable to the type of regulation under consideration,—
a: methodologies for evaluating or determining the following matters in respect of the supply of the goods or services:
i: cost of capital:
ii: valuation of assets, including depreciation, and treatment of revaluations:
iii: allocation of common costs, including between activities, businesses, consumer classes, and geographic areas:
iv: treatment of taxation; and
b: pricing methodologies; and
c: regulatory processes and rules, such as—
i: the specification and definition of prices, including identifying any costs that can be passed through to prices (which may not include the legal costs of any appeals against input methodology determinations under this Part or of any appeals under section 91 or section 97); and
ii: identifying circumstances in which price-quality paths may be reconsidered within a regulatory period; and
d: matters relating to proposals by a regulated supplier for a customised price-quality path, including—
i: requirements that must be met by the regulated supplier, including the scope and specificity of information required, the extent of independent verification and audit, and the extent of consultation and agreement with consumers; and
ii: the criteria that the Commission will use to evaluate any proposal.
2: Every input methodology must, as far as is reasonably practicable,—
a: set out the matters listed in subsection (1)
b: set out how the Commission intends to apply the input methodology to particular types of goods or services; and
c: be consistent with the other input methodologies that relate to the same type of goods or services.
3: Any methodologies referred to in subsection (1)(a)(iii)
52U: When input methodologies must be determined
1: The Commission must determine input methodologies for the goods or services regulated under subparts 9 to 11 30 June 2010
2: The Minister may, on the written request of the Commission, extend the deadline referred to in subsection (1) Gazette
3: The Commission must determine input methodologies for any goods or services that are the subject of an inquiry as soon as practicable after the Commission is satisfied that the parts of the test for the regulation of goods or services set out in paragraphs (a) and (b) of section 52G(1)
52V: Commission process for determining input methodologies
1: When the Commission begins work on an input methodology, it must publish a notice of intention to do so that—
a: outlines the process that will be followed; and
b: sets out the proposed time frames.
2: During the course of its work on an input methodology, the Commission—
a: must publish a draft methodology; and
b: must give interested persons a reasonable opportunity to give their views on that draft methodology; and
c: may hold 1 or more conferences; and
d: must have regard to any views received from interested persons within any time frames set.
3: Despite subsections (1) and (2)
4: The Commission must consult with interested parties before deciding to treat earlier work or action as work or action done under this section.
52W: Publication of input methodologies
1: The Commission must publish every input methodology, and every amendment to an input methodology,—
a: within 10 working days after the Commission determines the input methodology or amendment; and
b: if the input methodology or an amendment is determined by the High Court on appeal, within 10 working days after the Commission receives a copy of the decision of the High Court.
2: The publication must be by way of a notice in the Gazette
a: a brief description of the nature of the methodology and the goods or services to which it applies; and
b: the reasons for determining that methodology; and
c: how it is publicly available.
3: The Commission must make every input methodology, and every amended input methodology, publicly available as soon as the input methodology or amendment is published.
52X: Amendment of input methodologies
If the Commission proposes to amend an input methodology by making a material change, section 52V
52Y: Review and date of publication of input methodologies
1: The Commission must review each input methodology no later than 7 years after its date of publication and, after that, at intervals of no more than 7 years.
2: The date of publication of an input methodology is the date on which it is published under section 52W(1)(a) section 52W(1)(b)
3: Section 52V
4: Section 52W Appeals against input methodology determinations
52Z: Appeals against input methodology determinations
1: Any person who gave views on an input methodology determination to the Commission as part of the process under section 52V
2: In this section and section 52ZA input methodology determination
a: the initial determination of an input methodology:
b: any determination by the Commission that amends the input methodology:
c: any determination by the Commission of an input methodology following a review of the input methodology.
3: In determining an appeal against an input methodology determination, the Court may do any of the following:
a: decline the appeal and confirm the input methodology set out in the determination:
b: allow the appeal by—
i: amending the input methodology; or
ii: revoking the input methodology and substituting a new one; or
iii: referring the input methodology determination back to the Commission with directions as to the particular matters that require amendment.
4: The Court may only exercise its powers under subsection (3)(b) subsection (3)(b)(iii) section 52R
5: If the Court allows an appeal, the Commission may seek clarification from the Court on any matter for the purpose of implementing the Court's decision.
6: There is a right of appeal under section 97 to the Court of Appeal from any decision or order of the High Court under this section on a point of law only.
52ZA: Process for appeals
1: Any appeal under section 52Z
2: The appeal must be by way of rehearing and must be conducted solely on the basis of the documentary information and views that were before the Commission when it made its determination, and no party may introduce any new material during the appeal.
3: The High Court must sit with 2 lay members (unless the Court considers that only 1 is required).
4: Each of the lay members must have relevant experience and be appointed from the pool of people appointed under section 77 to be members of the Court for the purpose of hearing the appeal.
5: Section 77 applies, and section 77(14) is not limited by subsection (3)
53: Input methodology applies pending outcome of appeal
1: The High Court may not stay the application of section 52S section 52W
2: Section 52S section 52W
4: Information disclosure regulation
53A: Purpose of information disclosure regulation
The purpose of information disclosure regulation is to ensure that sufficient information is readily available to interested persons to assess whether the purpose of this Part is being met.
53B: Effect of being subject to information disclosure regulation
1: Every supplier of goods or services that are subject to information disclosure regulation must—
a: publicly disclose information in accordance with the information disclosure requirements set out in the relevant section 52P
b: supply to the Commission a copy of all information disclosed in accordance with the section 52P
c: supply to the Commission, in accordance with a written notice by the Commission, any further statements, reports, agreements, particulars, or other information required for the purpose of monitoring the supplier’s compliance with the section 52P
2: If a supplier of goods or services is subject to information disclosure regulation, the Commission—
a: may monitor and analyse all information disclosed in accordance with the information disclosure requirements; and
b: must, as soon as practicable after any information is publicly disclosed, publish a summary and analysis of that information for the purpose of promoting greater understanding of the performance of individual regulated suppliers, their relative performance, and the changes in performance over time.
53C: Section 52P determination to set out information disclosure requirements
1: A section 52P
a: specify the goods or services to which it applies; and
b: specify the suppliers to which it applies; and
c: specify the information to be disclosed; and
d: specify the manner in which the information is to be disclosed; and
e: specify the form of disclosure; and
f: specify when, and for how long, information must be disclosed; and
g: specify the input methodologies that apply; and
h: specify any other methodologies that are required in the preparation or compilation of the information.
2: Information required to be disclosed may include (without limitation) any or all of the following:
a: financial statements (including projected financial statements):
b: asset values and valuation reports:
c: prices, terms and conditions relating to prices, and pricing methodologies:
d: contracts:
e: transactions with related parties:
f: financial and non-financial performance measures:
g: plans and forecasts, including (without limitation) plans and forecasts about demand, investments, prices, revenues, quality and service levels, capacity and spare capacity, and efficiency improvements:
h: asset management plans:
i: quality performance measures and statistics:
j: assumptions, policies, and methodologies used or applied in these or other areas:
k: consolidated information that includes information about unregulated goods or services, in which case section 53D
3: The section 52P
a: require disclosed information, or information from which disclosed information is derived (in whole or in part), to be verified by statutory declaration:
b: require independent audits of disclosed information:
c: require the retention of data on which disclosed information is based, and associated documentation:
d: exempt any person or class of persons, or provide for exemptions, from any requirements of the determination, and provide for the revocation of exemptions:
e: provide for transitional provisions:
f: impose any other requirements that the Commission considers necessary or desirable to promote the purpose of information disclosure regulation.
4: The section 52P section 54B
53D: Consolidated information may also be required
1: The purpose of this section is to enable the Commission to monitor compliance with information disclosure regulation applying to regulated goods or services.
2: A section 52P subsection (3) subsection (1)
3: If a regulated supplier provides goods or services that are not subject to regulation under this Part ( unregulated goods or services
a: consolidated financial statements, and any other information referred to in section 53C
b: consolidated financial statements, and any other information referred to in section 53C
c: reconciliation between information provided under paragraphs (a) and (b)
4: If a supplier supplies more than 1 kind of regulated goods or services, the Commission may require the supplier to provide consolidated information and performance measures relating to all, or any combination of, the regulated goods or services.
53E: Charge for providing copies to public
1: A person who is required, by a section 52P
2: The charge must be no more than is reasonably required to recover the costs of providing those copies.
53F: Limited exception to obligation to apply input methodologies
1: Despite section 52S
a: pricing methodologies:
b: methodologies for evaluating or determining the cost of capital.
2: However, to avoid doubt, subsection (1)
a: section 53B(2) subsection (1)
b: section 53C(2)
5: Negotiate/arbitrate regulation
53G: Purpose of negotiate/arbitrate regulation
The purpose of negotiate/arbitrate regulation is to encourage a supplier and its customers to reach agreement, through negotiation, on the supplier's prices and quality standards during a specified regulatory period, and to provide for binding arbitration if negotiation is unsuccessful.
53H: Overview of negotiate/arbitrate regulation
1: If a regulated supplier is subject to negotiate/arbitrate regulation,—
a: the supplier must enter into negotiations with parties identified by the Commission in order to reach agreement on the matters identified by the Commission (being the prices and quality standards associated with regulated goods or services) that will apply for the regulatory period specified by the Commission; and
b: if the negotiations fail to reach a settlement of all the matters within the time frames set by the Commission, the parties must enter into arbitration to resolve the outstanding matters; and
c: the terms of the arbitration are set by the Commission, and the arbitral award is binding on the parties unless or until they agree to vary it.
2: This section is only a guide.
53I: Section 52P determination to set out requirements for application of negotiate/arbitrate regulation
1: If negotiate/arbitrate regulation applies to regulated goods or services, the section 52P
a: the parties to the negotiation or arbitration:
b: the matters (including the prices and quality standards associated with the regulated goods or services) that the parties must agree to by negotiation, or are bound to by arbitral award:
c: the period or periods for which any negotiated settlement or arbitral award applies:
d: a reference to the input methodologies that apply:
e: the information that the parties must provide to the other parties and, if necessary, the arbitrator, and the time frames for that provision:
f: the processes for negotiations, including the form of involvement by the parties, and the form, scope, and coverage of any negotiated settlement:
g: the time frames for the negotiations (including stages in negotiations) and, in particular, the date by which, if negotiations are not complete, the parties must enter into arbitration to settle any remaining unresolved matters:
h: the terms of any compulsory arbitration that takes place under section 53J
i: the date by which the arbitral award must be made:
j: the manner in which the parties must make publicly available any negotiated settlement, arbitral award, or both.
2: The Commission may include in the determination any other matters it considers necessary or desirable to promote the purpose of negotiate/arbitrate regulation.
3: If the parties to a negotiation agree to arbitration, the arbitration may be on whatever terms they agree to, but must be completed within the time frames set for the negotiation.
4: The Commission may extend any time frames set out in a section 52P
5: The terms of arbitration set by the Commission must—
a: allow the parties a reasonable period within which to agree on an arbitrator but, if agreement is not reached within that period (or any extended period allowed under subsection (4)
b: include provisions enabling the parties to enforce the arbitral award; and
c: include a right of appeal to the High Court, exercisable by any party to the arbitration, on a point of law only.
53J: Compulsory arbitration
1: If a settlement is not reached (whether by negotiation or voluntary arbitration) within the time frame set by the Commission, the parties must enter into arbitration under this section on the terms set out in the section 52P
2: The Arbitration Act 1996 does not apply to arbitration under this section, but the Commission may, in setting out the terms of the arbitration in the section 52P
3: The arbitrator’s role is to make an arbitral award that promotes the purpose of this Part.
4: If final consumers of regulated goods or services are not directly represented as parties in the arbitration, the arbitrator must have particular regard to the effect of the outcome of the arbitration on those final consumers.
5: The arbitral award is binding on the parties to the arbitration unless or until the parties agree to vary it.
6: Default/customised price-quality regulation
53K: Purpose of default/customised price-quality regulation
The purpose of default/customised price-quality regulation is to provide a relatively low-cost way of setting price-quality paths for suppliers of regulated goods or services, while allowing the opportunity for individual regulated suppliers to have alternative price-quality paths that better meet their particular circumstances.
53L: Overview of default/customised price-quality regulation
1: If goods or services are subject to default/customised price-quality regulation,—
a: the Commission sets default price-quality paths that apply for a regulatory period, and all regulated suppliers must apply those default price-quality paths; but
b: individual suppliers may make a proposal to the Commission for a customised price-quality path; and
c: the Commission may set a customised price-quality path for the supplier, and that then applies for a set period instead of a specified default price-quality path.
2: This section is only a guide.
53M: Content and timing of price-quality paths
1: Every price-quality path (whether a default price-quality path or a customised price-quality path under this subpart, or an individual price-quality path under subpart 7
a: in relation to prices, either or both of the following with respect to a specified regulatory period:
i: the maximum price or prices that may be charged by a regulated supplier:
ii: the maximum revenues that may be recovered by a regulated supplier; and
b: the quality standards that must be met by the regulated supplier; and
c: the regulatory period.
2: A price-quality path may include incentives for an individual supplier to maintain or improve its quality of supply, and those incentives may include (without limitation) any of the following:
a: penalties by way of a reduction in the supplier's maximum prices or revenues based on whether, or by what amount, the supplier fails to meet the required quality standards:
b: rewards by way of an increase in the supplier's maximum prices or revenue based on whether, or by what amount, the supplier meets or exceeds the required quality standards:
c: consumer compensation schemes that set minimum standards of performance and require the supplier to pay prescribed amounts of compensation to consumers if it fails to meet those standards:
d: reporting requirements, including special reporting requirements in asset management plans, if the supplier fails to meet the quality standards.
3: Quality standards may be prescribed in any way the Commission considers appropriate (such as targets, bands, or formulae) and may include (without limitation)—
a: responsiveness to consumers; and
b: in relation to electricity lines services, reliability of supply, reduction in energy losses, and voltage stability or other technical requirements.
4: A regulatory period must be 5 years.
5: However, the Commission may set a shorter period than 5 years if it considers that it would better meet the purposes of this Part, but in any event may not set a term less than 4 years.
6: Subsections (4) and (5) section 53W
7: No default price-quality path applies to a supplier until the date specified in the relevant section 52P Gazette section 52P(7)(b)
53N: Monitoring compliance with price-quality paths
For the purpose of monitoring compliance with a price-quality path (whether a default price-quality path or a customised price-quality path under this subpart, or an individual price-quality path under subpart 7
a: a written statement that states whether or not the supplier has complied with the price-quality path applying to that supplier:
b: a report on the written statement referred to in paragraph (a)
c: sufficient information to enable the Commission to properly determine whether all applicable price-quality paths have been complied with:
d: a certificate, in the form specified by the Commission and signed by at least one director of the supplier, confirming the truth and accuracy of any information provided under this section. Default price-quality path
53O: Section 52P determination to set out requirements of default price-quality paths
If default price-quality regulation applies to regulated goods or services, the section 52P
a: the starting prices that apply to the supply of the goods or services during the first regulatory period; and
b: the rate or rates of change in prices, relative to the consumer price index, allowed during the first regulatory period; and
c: the quality standards that apply during the first regulatory period; and
d: the date or dates on which the default price-quality path (or any part of it) takes effect; and
e: the annual date by which any proposal for a customised price-quality path must be received; and
f: the annual date by which compliance must be demonstrated in accordance with section 53N
53P: Resetting starting prices, rates of change, and quality standards
1: Before the end of the first and every subsequent regulatory period, the Commission must amend the section 52P section 53O(a) section 53O(b) section 53O(c)
2: In resetting starting prices, rates of change, and quality standards, the Commission must consult with interested parties.
3: The starting prices must be either—
a: the prices that applied at the end of the preceding regulatory period; or
b: prices, determined by the Commission, that are based on the current and projected profitability of each supplier.
4: Starting prices set in accordance with subsection (3)(b)
5: Subject to subsection (8) x x
6: The rate of change must be based on the long-run average productivity improvement rate achieved by either or both of suppliers in New Zealand, and suppliers in other comparable countries, of the relevant goods or services, using whatever measures of productivity the Commission considers appropriate.
7: When setting the rate of change, the Commission may take into account the effects of inflation on the inputs of suppliers of the relevant goods or services.
8: The Commission may set alternative rates of change for a particular supplier—
a: as an alternative, in whole or in part, to the starting prices set under subsection (3)(b)
b: as an incentive (under section 53M(2)
9: Any alternative rates of change set under subsection (8)
10: The Commission may not, for the purposes of this section, use comparative benchmarking on efficiency in order to set starting prices, rates of change, quality standards, or incentives to improve quality of supply.
11: If starting prices, rates of change, and quality standards have not been set by way of an amendment to the relevant section 52P Customised price-quality paths
53Q: Supplier may propose customised price-quality path
1: At any time after a default price-quality path is set by the Commission, a supplier that is (or is likely to be) subject to the default price-quality path may make a proposal to the Commission for a customised price-quality path to apply to that supplier.
2: Every proposal must—
a: comply with the input methodologies referred to in section 52T(1)(d)
b: be made within the period, or by the annual date, specified for the purpose in the section 52P
c: include the standard application fee for customised price-quality path proposals; and
d: apply or adopt all relevant input methodologies.
3: A supplier may make only 1 proposal during a regulatory period, and may not make a proposal within the 12 months before a default price-quality path is due to be reset.
4: A supplier that makes a proposal must make it publicly available as soon as practicable after it has been made to the Commission.
53R: Effect of making proposal for customised price-quality path
A supplier that makes a proposal to the Commission—
a: cannot withdraw the proposal; and
b: is bound, for the regulatory period to which it applies, by any customised price-quality path that the Commission subsequently sets for the supplier.
53S: Preliminary assessment of proposal
1: Within 40 working days after receiving a proposal, the Commission must determine whether the proposal complies with the input methodologies referred to in section 52T(1)(d)
2: If the proposal does not comply with those requirements, the Commission may, at its discretion,—
a: discontinue any consideration of the proposal; or
b: request the supplier to remedy the deficiencies in the proposal by providing additional information within 40 working days.
3: If the supplier fails to provide any additional information requested by the Commission under subsection (2)(b)
4: If a proposal is discontinued under subsection (2) or (3) section 53Q(3)
53T: Process and timing for assessing proposal
1: Once the Commission decides that a proposal complies with the input methodologies relating to the process for, and content of, customised price-quality path proposals, it must—
a: give notice that the proposal is under consideration, and how copies of the proposal may be obtained; and
b: set a date for interested persons to make submissions on the proposal; and
c: have regard to any submissions made by that date.
2: The Commission must make a determination on a proposal for a customised price-quality path within 150 working days of receiving a complete proposal, subject to sections 53U and 53Z
53U: Extension of time frames
The time frames specified in sections 53S and 53T
53V: Determination setting customised price-quality path
1: The Commission may determine any customised price-quality path that the Commission considers appropriate for a supplier that has made a proposal.
2: To avoid doubt, and without limitation, in determining a customised price-quality path that complies with section 53M
a: set a price-quality path that is lower, or otherwise less favourable to the regulated supplier, than the default price-quality path that would otherwise apply:
b: if it sets a lower or a higher price than applied under the default price-quality path, apply claw-back:
c: with the agreement of the supplier, vary an input methodology that would otherwise apply to the supplier.
3: A customised price-quality path for a supplier is imposed by way of an amendment to the section 52P
53W: Term of customised price-quality paths
1: A customised price-quality path applies for 5 years.
2: However, the Commission may set a shorter period than 5 years if it considers this would better meet the purpose of this Part, but in any event may not set a term less than 3 years.
53X: What happens when customised price-quality path ends
1: When the customised price-quality path of a supplier of goods or services ends, the supplier is subject to the default price-quality path that is generally applicable to other suppliers of those goods or services.
2: The starting prices that apply at the beginning of the default price-quality path are those that applied at the end of the customised price-quality path unless, at least 4 months before the end of the customised price-quality path, the Commission advises the supplier that different starting prices must apply.
3: The supplier remains subject to the default price-quality path until—
a: the end of the period for which it applies to other suppliers; or
b: a new customised price-quality path begins to apply to the supplier.
4: To avoid doubt, a supplier who is or was subject to a customised price-quality path may apply in accordance with section 53Q
53Y: Commission's costs in setting customised price-quality path
1: The Commission’s costs in setting a customised price-quality path must be met by the person who makes the proposal for a customised price-quality path.
2: The costs may be recovered in whatever manner the Commission determines.
53Z: Prioritisation by Commission
1: The Commission is not required to consider any more than 4 proposals for a customised price-quality path relating to the same type of regulated goods or services in any one year.
2: If the Commission receives more than 4 proposals for a customised price-quality path relating to the same type of regulated goods or services in any one year, the Commission—
a: may defer the additional proposals to a subsequent year; but
b: must prioritise its consideration of the proposals in accordance with the criteria in subsection (3)
3: The criteria for Commission decisions on priorities are as follows:
a: quality and completeness of the initial proposal:
b: urgency of any proposed additional investment (compared to historic rates of investment) required to meet consumer requirements on quality:
c: materiality of the proposal relative to the size and revenues of the supplier.
53ZA: What happens if Commission does not make decision within time frame
1: This section applies if the Commission does not make a determination within 150 working days of receiving a complete proposal (or within any extended time agreed under section 53U
2: If the regulated supplier has not complied, in the Commission’s opinion, with any reasonable exercise by the Commission of its information-gathering powers under section 53ZD
3: If the regulated supplier has so complied, the customised proposal made under section 53Q
4: If a customised price-quality path proposal takes effect under subsection (3) section 52P What happens to price-quality paths if input methodologies change
53ZB: What happens to price-quality paths if input methodologies change
1: Default or customised price-quality paths may not be reopened within a regulatory period on the grounds of a change in an input methodology, except as provided in subsection (2)
2: Every default and customised price-quality path must be reset by the Commission in accordance with section 53P
a: an input methodology changes as a result of an appeal under section 52Z
b: had the changed methodology applied at the time the price-quality path was set, it would have resulted in a materially different path being set.
3: When resetting a default or customised price-quality path under subsection (2)
7: Individual price-quality regulation
53ZC: Price-quality path for individual businesses
1: If individual price-quality regulation applies to goods or services supplied by a supplier, the Commission may set the price-quality path for that supplier using any process, and in any way, it thinks fit, but must use the input methodologies that apply to the supply of those goods or services.
2: The following provisions of subpart 6
a: sections 53M and 53N
b: section 53ZB
8: Miscellaneous provisions
53ZD: Powers of Commission under this Part
For the purpose of carrying out its functions and exercising its powers under this Part, the Commission may, in addition to exercising its powers under section 98, do any of the following:
a: consult with any person the Commission considers may assist it:
b: investigate any of the following:
i: how effectively and efficiently any supplier of the goods or services is supplying the goods or services:
ii: how any formula, methodology, or price-quality path being considered by the Commission may be applied, or how any formula, methodology, or price-quality provision determined or authorised by the Commission has been applied, in considering proposed prices or quality standards:
iii: how any conditions relating to the quality of the goods or services may be, or are being, fulfilled:
c: examine, consider, or investigate any activity, cost, revenue, transfer, asset valuation, circumstance, or event that is occurring or that has occurred during the previous 7 years:
d: by notice in writing, require any supplier of the goods or services—
i: to prepare and produce forecasts, forward plans, or other information; and
ii: to apply any methodology specified by the Commission in the preparation of forecasts, forward plans, or other information:
e: by notice in writing, require any supplier of the goods or services, or any previous supplier of them that the Commission has reason to believe may have information or documents relevant to the investigation, audit, or inquiry, at the time and place specified in the notice, to do either or both of the following:
i: produce or supply to the Commission documents and information in relation to the goods or services, or the prices or operations of the person in respect of the goods or services:
ii: to answer any questions about any matter that the Commission has reason to believe may be relevant to the investigation, audit, or inquiry:
f: by notice in writing, require any supplier of the goods or services, at the time and place specified in the notice, to produce or supply to the Commission an expert opinion from an appropriately qualified person, or from a member of a class of appropriately qualified persons, as determined by the Commission in relation to the matters in paragraph (b), (c), (d), or (e)(i)
53ZE: Levies
1: Every supplier of regulated goods or services (or prescribed class of suppliers of regulated goods or services) must pay to the Minister the levy determined in accordance with regulations made under subsection (2)
2: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations—
a: specifying the amount of levies, or method of calculating or ascertaining the amount of levies, on the basis that the estimated costs of performing the Commission's functions, powers, and duties under this Part, and of collecting the levy money, should be met fully out of levies:
b: including, or providing for the inclusion, in levies of any shortfall in recovering those actual costs:
c: refunding, or providing for refunds of, any over-recovery of those actual costs:
d: providing different levies for different classes of suppliers or goods or services:
e: specifying the financial year or part financial year to which those levies apply, and applying to that financial year or part financial year and each subsequent financial year until revoked or replaced:
f: providing for the payment and collection of those levies:
g: for the first financial year to which the levy applies to a supplier or class of suppliers, including in the levy amount or method costs incurred by the Commission in connection with preparing itself to perform, and performing, its functions, powers, and duties under this Part, irrespective of the fact—
i: that the regulations are made and come into effect after that year; or
ii: that the goods or services become regulated after the costs were incurred (for example, costs incurred by the Commission in preparing input methodologies):
h: requiring payment of a levy for a financial year or part financial year, irrespective of the fact that the regulations may be made after that financial year has commenced:
i: exempting or providing for exemptions from, and providing for waivers of, the whole or any part of the levy for any case or class of cases.
3: The amount of any unpaid levy is recoverable in any court of competent jurisdiction as a debt due to the Crown.
4: The Minister must consult with the suppliers of regulated goods or services, or representatives of those suppliers, before making a recommendation for the purposes of subsection (2)
53ZF: Material may be incorporated by reference
Schedule 5
a: a section 52P
b: an input methodology.
53ZG: Power to exempt disclosure of commercially sensitive information
1: The Commission may, on application, exempt any person or class of persons, in respect of any information or class of information that the Commission considers to be commercially sensitive, from any obligation to make that information publicly available as part of the requirements of information disclosure regulation, negotiate/arbitrate regulation, or customised price-quality regulation.
2: The Commission may grant the exemption on any terms and conditions that it thinks fit.
3: The exemption must be granted by notice in the Gazette Gazette
4: The Commission may, in like manner, vary or revoke any exemption.
5: The Commission must keep a list of all current exemptions made by it under this section available for public inspection free of charge during normal office hours of the Commission at the offices of the Commission.
6: An exemption under this section is not a regulation within the meaning of the Regulations (Disallowance) Act 1989 or the Acts and Regulations Publication Act 1989.
9: Electricity lines services
Application, overview, and interpretation
54: Overview of how subpart applies
1: This subpart provides—
a: that all suppliers of electricity lines services are subject to information disclosure regulation; and
b: that suppliers of electricity lines services that are not consumer-owned are also subject to price-quality regulation; and
c: for the transition to the new regime provided for in this Part.
2: This section is only a guide.
54A: Overview of when subpart applies
1: This subpart applies on and after 1 April 2009
2: However, sections 54D(3) and 54N
3: This section is only a guide.
54B: Interpretation for subpart
In this subpart, unless the context otherwise requires,— administrative settlement section 54J consumer-owned section 54D electricity lines services section 54C Part 4A Commerce Amendment Act 2008 threshold Transpower
54C: Meaning of electricity lines services
1: In this subpart, unless the context otherwise requires, electricity lines services
2: However, none of the following are electricity lines services:
a: conveying electricity solely for the supplier’s own consumption or for the consumption of the supplier’s associates:
b: conveying electricity only from a generator to the national grid or from the national grid to a generator:
c: conveying electricity (other than via the national grid) only from a generator to a local distribution network or from a local distribution network to a generator:
d: conveying electricity by lines that are not connected, directly or indirectly, to the national grid:
e: conveying electricity only by a line or lines that are mostly in competition with a line or lines operated by another supplier of electricity lines services that is not an associate of the person, provided that the competition is actual competition and not potential competition:
f: conveying electricity if the total circuit length of all of the prescribed voltage electric lines provided by the supplier (or over which electricity is conveyed by the supplier, as the case may be) is less than 25 kilometres:
g: conveying electricity if the total amount of electricity conveyed to consumers by the supplier is less than 20 gigawatt hours per annum:
h: conveying electricity if the total number of consumers to whom the supplier conveys electricity is less than 500.
3: The prescribed voltage electric lines, the electricity conveyed, or the number of consumers to whom electricity is conveyed, when measured in relation to a supplier include, for the purposes of subsection (2)(f) to (h)
4: In this section, unless the context otherwise requires,— associate consumer lines national grid prescribed voltage electric line
54D: Definition of consumer-owned
1: In this subpart, unless the context otherwise requires, a supplier is consumer-owned
a: all the control rights and all the equity return rights (within the meaning of section 3 of the Electricity Industry Reform Act 1998) in the supplier are held by 1 or more customer trusts, community trusts, or customer co-operatives; and
b: the trustees of each customer trust or community trust, or the directors of each customer co-operative, as the case may be, that is referred to in paragraph (a)
c: at least 90% of the persons who are consumers of the supplier as at an income distribution resolution date benefit from that income distribution; and
d: the supplier has fewer than 150 000 ICPs.
2: In this section, unless the context otherwise requires,— community trust
a: at least 90% of the income beneficiaries comprise persons who are a class or classes identified by reference to their domicile or location or operation within the geographic area or areas of operation of the supplier; and
b: at least 90% of its income distributions are paid to those beneficiaries or for purposes related to that geographic area or areas consumer section 54H customer co-operative customer trust
a: at least 90% of the income beneficiaries comprise persons who are a class or classes identified by reference to any of—
i: the person's connection to the lines of the supplier:
ii: the person's receipt of electricity from the supplier:
iii: the person's liability for payment for supply of electricity from the supplier:
iv: the person's liability for payment for the connection to the lines of the supplier:
v: the person's liability for payment for line services supplied by the supplier; and
b: at least 90% of its income distributions are paid to those beneficiaries ICP income distribution resolution date
3: As soon as practicable after this subsection comes into force, the Minister must publish a notice in the Gazette
4: The notice in subsection (3) Imposition of regulation under this Part
54E: Electricity lines services declared to be regulated
Electricity lines services are regulated under this Part.
54F: All electricity lines services are subject to information disclosure regulation
All electricity lines services are subject to information disclosure regulation under this Part.
54G: Certain electricity lines services are also subject to default/customised price-quality regulation
1: All electricity lines services (other than those supplied by Transpower) are subject to default/customised price-quality regulation under this Part unless they are exempt.
2: All electricity lines services that are supplied by a supplier that is consumer-owned are exempt (unless an Order in Council has been made in respect of the service under section 54H
54H: How exempt status can be lost and default/customised price-quality regulation can be applied to consumer-owned suppliers
1: Electricity lines services that are supplied by a supplier that is consumer-owned cease to be exempt for the purpose of section 54G
2: The Minister may make a recommendation only if the Minister is satisfied that either—
a: the Commission has advised the Minister that a supplier has ceased to be consumer-owned within the meaning of section 54D
b: the Commission has recommended to the Minister that the purpose of this Part would be better met if price-quality regulation were imposed on the supplier under this Part.
3: The Commission may make a recommendation under subsection (2)(b)
a: 15% of the persons who are residential consumers of the supplier as at the date of the petition who are eligible to vote in elections for trustees of the customer trust or community trust, or for directors of the customer co-operative:
b: 20% of the persons who are residential consumers of the supplier as at that date who are not eligible to vote in elections for trustees of the customer trust or community trust, or for directors of the customer co-operative:
c: 25% of the persons who are non-residential consumers (either by number or by consumption of that class of consumer) of the supplier as at that date.
4: If exact figures are not available as to the number of persons in a class referred to in subsection (3)
5: Petition
6: The Governor-General may, on the recommendation of the Minister, make an Order in Council in accordance with this section.
54I: Commission must make section 52P determination specifying how subpart applies
1: The section 52P 1 April 2009
2: The section 52P 1 April 2009 section 54J
3: The section 52P section 54H
54J: Section 52P determinations setting out default price-quality paths applying from 1 April 2009
1: This section applies in respect of suppliers of electricity lines services that are subject to default/customised price-quality regulation on and after 1 April 2009.
2: On and after 1 April 2009, the thresholds for large electricity lines businesses that expire on 31 March 2009 are deemed to be section 52P
a: apply those thresholds to each supplier as if the thresholds were default price-quality paths; and
b: state that the regulatory period for each supplier ends on 31 March 2010; and
c: comply with sections 52P and 53O
d: were notified in the Gazette section 52P(7)(b)
3: However, a breach of a default price-quality path before the close of 31 March 2010 must be dealt with in accordance with section 54N
4: Nothing in this section affects sections 54N and 54O
54K: Section 52P determinations setting out default price-quality paths applying from 1 April 2010
1: Before 1 April 2010, the Commission must reset the default price-quality paths for each supplier that apply on and after that date, using the process set out in section 53P
2: The Commission may reset the default price-quality paths even if all or any of the relevant input methodologies have not been determined.
3: If an input methodology is published after 1 April 2010 and if, had that methodology applied at the time the default price-quality paths were reset as required by subsection (1) section 53P section 53ZB(1)
4: However, the Commission may not exercise its powers in subsection (3)
5: Nothing in this section affects sections 54N and 54O Transitional arrangements
54L: Administrative settlements made before 1 April 2009 (other than with Transpower)
1: This section applies to every administrative settlement accepted by the Commission before 1 April 2009 in respect of a breach of a threshold other than an administrative settlement with Transpower.
2: The enactment of the Commerce Amendment Act 2008 does not limit or affect an administrative settlement to which this section applies, except as provided in this section.
3: Any breach of the administrative settlement must be dealt with in accordance with the terms of the settlement.
4: The expiry of the administrative settlement must be treated as if it were the end of a customised price-quality path, and section 53X
54M: Administrative settlements with Transpower made before 1 April 2009
1: This section applies to any administrative settlement with Transpower that is accepted by the Commission before 1 April 2009 in respect of a breach of a threshold.
2: Any breach of an administrative settlement with Transpower may be dealt with under Part 6 as if it were a breach of a customised price-quality path, despite anything in the terms of the settlement.
3: Before the expiry of the administrative settlement, the Commission must recommend to the Minister that an Order in Council be made under section 52N
a: Transpower is subject to default/customised price-quality regulation under subpart 6
b: Transpower is subject to individual price-quality path regulation under subpart 7
4: Subpart 2 section 52P
5: If an Order in Council declares that Transpower is subject to default/customised price-quality regulation, the section 52P section 53P
6: The only requirements that may be included in a section 52P
54N: Breaches of thresholds and default price-quality paths before 1 April 2010
1: This section applies to—
a: any breach of a threshold that occurred before the close of 31 March 2007; and
b: any breach of a threshold that occurs on or after 1 April 2007 and before the close of 31 March 2009; and
c: any breach of a default price-quality path that occurs on or after 1 April 2009 and before the close of 31 March 2010.
2: The Commission may not publish a notice of intention to declare control under Part 4A,—
a: in respect of a breach referred to in subsection (1)(a) 1 October 2008
b: in respect of a breach referred to in subsection (1)(b) or (c)
3: The Commission may, at any time before the expiry of 12 months after the date on which the Commission publishes a notice of intention to declare control under subsection (2)
a: make a control declaration under Part 4A; or
b: enter into an administrative settlement in respect of the breach under Part 4A.
4: The Commission may do anything under subsections (2) and (3) Commerce Amendment Act 2008 section 52A
5: To avoid doubt, the Commission may, but need not, apply input methodologies in acting under subsection (3)
6: Despite anything in Part 4A, any control imposed, or administrative settlement entered into, under Part 4A in accordance with subsection (3)
a: the term of control, or of the settlement, must be not more than 5 years:
b: the expiry of the term must be treated as if it were the expiry of a customised price-quality path, and section 53X
54O: Breaches of control imposed, or administrative settlements entered into, after 1 April 2009
1: If a supplier breaches control imposed, or an administrative settlement entered into, in accordance with section 54N(3)
2: To avoid doubt, this section applies whether or not the supplier is, after 1 April 2009, subject to default/customised price-quality regulation.
54P: Proposals for customised price-quality paths
1: A supplier of electricity lines services may not propose a customised price-quality path until a section 52P section 52T(1)(d)
2: However, in accordance with section 53V(2) Energy efficiency
54Q: Energy efficiency
The Commission must promote incentives, and must avoid imposing disincentives, for suppliers of electricity lines services to invest in energy efficiency and demand side management, and to reduce energy losses, when applying this Part in relation to electricity lines services. Jurisdiction issues and interface with Electricity Commission and Electricity Act 1992
54R: Transfer of jurisdiction relating to electricity lines services supplied by Transpower
The Governor-General may, by Order in Council made on the recommendation of the Minister of Energy, transfer to the Electricity Commission the jurisdiction under this Part in respect of all of the electricity lines services supplied by Transpower.
54S: Effect of transfer of jurisdiction
1: If an Order in Council is made under section 54R
a: the Electricity Commission, and not the Commerce Commission, has all the powers, duties, and functions under this Part in respect of the electricity lines services in respect of which the jurisdiction has been transferred; and
b: the Electricity Commission must exercise or perform those powers, duties, and functions, and be treated in that exercise or performance, as if it were an independent Crown entity; and
c: the Electricity Commission must apply any input methodologies determined by the Commerce Commission for services regulated under this subpart (except to the extent that the Electricity Commission considers that modifications are required to meet the particular circumstances of Transpower).
2: Without limiting subsection (1)(b) section 54R
a: set objectives and outcomes under section 172ZK of the Electricity Act 1992 on any matter relating to the jurisdiction under this Part; or
b: direct the Electricity Commission to give effect to or have regard to any government policy that relates to the jurisdiction under this Part; or
c: direct the Electricity Commission to amend any provision that is included in its statement of intent that relates to the jurisdiction under this Part; or
d: remove any member of the Electricity Commission for a reason related to the exercise of the jurisdiction under this Part.
3: The Order in Council under section 54R
54T: Procedure before jurisdiction order can be made
The Minister of Energy may make a recommendation for the purpose of section 54R
a: he or she has consulted with Transpower, users of the national grid, and representatives of consumers; and
b: he or she has consulted with the Electricity Commission and the Commerce Commission and has sought a recommendation from each of them; and
c: he or she is satisfied that the transfer of jurisdiction that would occur would result in—
i: the purpose of this Part being achieved more efficiently and effectively; and
ii: the purposes of the Electricity Act 1992, as it applies to Transpower, being achieved more efficiently and effectively; and
iii: lower compliance costs for Transpower.
54U: Levies during transition in jurisdiction
1: The costs of the Commerce Commission during any period after any transfer of jurisdiction under this Part may continue to be met via levy regulations under section 53ZE
2: The costs of the Electricity Commission in respect of jurisdiction that is transferred to it must be met via levy regulations under the Electricity Act 1992.
54V: Impact of certain decisions made under Electricity Act 1992
1: The Electricity Commission must advise the Commerce Commission as soon as practicable after making any recommendation for an electricity governance regulation or rule under subpart 2 of Part 14 of the Electricity Act 1992, or after making any decision under electricity governance regulations or rules, or after issuing any guidelines, that is or are likely to be relevant to the powers, duties, or functions of the Commerce Commission under this Part.
2: The Commerce Commission must take into account, before exercising or performing any of its powers, duties, or functions under this Part,—
a: any electricity governance regulation or rule, or decision made under them, that relates to or affects the quality standards or pricing methodologies applicable to Transpower:
b: any electricity governance regulation or rule, or decision made under them, that relates to or affects the pricing methodologies applicable to any other line owner:
c: any guidelines of which it receives advice under subsection (1)
d: the levy payable by Transpower or any other line owner under section 172ZC of the Electricity Act 1992:
e: the continuance of supply obligations imposed by section 62 of the Electricity Act 1992.
3: The Commerce Commission must, if asked by the Electricity Commission to do so, reconsider a section 52P subsection (2) Savings provisions
54W: Savings provision relating to existing information disclosure requirements
Any information disclosure requirements published by the Commission under subpart 3 of Part 4A before 1 April 2009 section 54I(1)
54X: Savings provision for existing levy regulations for electricity lines businesses
1: Any regulations made pursuant to section 57ZK before the repeal of Part 4A continue to apply to each person who is a large line owner in respect of every financial year that precedes the first financial year to which levy regulations made under section 53ZE
2: Subsection (1)
a: references in those regulations to the Commission's costs included references to the costs of exercising and performing the Commission's powers, duties, and functions under this Part, and enforcing the obligations under this Part, in respect of those persons, and with all other necessary modifications; and
b: terms used in subsection (1)
10: Gas pipeline services
Overview and interpretation
55: Overview of subpart
1: This subpart provides—
a: that certain gas pipeline services are subject to information disclosure regulation and price-quality regulation; and
b: for the transition to the new regime provided for in this Part.
2: This section is only a guide.
55A: Meaning of gas pipeline services
1: In this subpart, unless the context otherwise requires, gas pipeline services
2: However, none of the following are gas pipeline services:
a: conveying natural gas to a gas processing facility:
b: conveying natural gas if the total amount of gas conveyed to consumers by the supplier is less than 75 000 gigajoules per annum:
c: conveying natural gas by a pipeline that is listed in the second column of Schedule 6
3: The gas conveyed, when measured in relation to a supplier includes, for the purposes of subsection (2)(b)
4: In this section, unless the context otherwise requires,— associate consumer container gas refueller pipeline
a: means everything used, or designed or intended for use, (whether above or below ground) in or in connection with the conveyance of natural gas between—
i: the boundary of the gas field or gas processing facility to the point of supply to a consumer or gas refueller; or
ii: the outlet of the container in which gas is stored to the point of supply to a consumer or gas refueller; but
b: excludes meters.
5: The Governor-General may, by Order in Council made on the recommendation of the Minister, amend Schedule 6
a: adding any pipeline:
b: deleting any pipeline:
c: changing the description of any pipeline or its owner.
6: The Minister may make a recommendation for the purpose of subsection (5)
a: the Commission has made a recommendation to the same effect; and
b: in the case of a recommendation to add a pipeline, the gas pipeline services are supplied in a market where the owner of the pipeline does not have a substantial degree of market power; and
c: in the case of a recommendation to delete a pipeline, the gas pipeline services are supplied in a market where the owner of the pipeline has a substantial degree of market power; and
d: the Commission has consulted (without necessarily holding an inquiry) with interested parties. Imposition of regulation under this Part
55B: Gas pipeline services declared to be regulated
Gas pipeline services are regulated under this Part.
55C: All gas pipeline services are subject to information disclosure regulation
Gas pipeline services are subject to information disclosure regulation under this Part.
55D: All gas pipeline services are subject to price-quality regulation
Gas pipeline services are subject to default/customised price-quality regulation under this Part on and after 1 July 2010
55E: Commission must make section 52P determination specifying how subpart applies
1: The section 52P
2: The section 52P 1 July 2010 section 55F
3: The section 52P section 55A(5)(a)
55F: Section 52P determinations setting out first default price-quality paths
1: The Commission must use the processes set out in section 53P section 52P
2: However, if a supplier has increased its weighted average prices by more than the movement, or forecast movement, in the all groups index number of the New Zealand Consumer Price Index in the period beginning 1 January 2008
3: The Commission may set a default price-quality path in respect of suppliers of gas pipeline services even if all or any of the relevant input methodologies have not been determined.
4: If an input methodology is published after a section 52P subsection (1) subsection (1) section 53ZB(1)
5: However, the Commission may not exercise its powers in subsection (4) Services controlled by virtue of Commerce (Control of Natural Gas Services) Order 2005
55G: Existing order, authorisations, and undertakings continue to apply until 1 July 2012 (or earlier expiry)
1: This section provides how price-quality regulation under this Part applies to services that are controlled by virtue of the Commerce (Control of Natural Gas Services) Order 2005 (the Order
2: The Order continues in force, despite the repeal of Part 4 (as it was before its repeal by the Commerce Amendment Act 2008), until the date on which the Order expires or is revoked (the expiry date
3: The enactment of the Commerce Amendment Act 2008
a: any authorisation made (including the ability to amend or revoke an authorisation), or any undertaking obtained or accepted, under Part 5 before 1 April 2009
b: the power of the Commission to obtain or accept any further undertakings under Part 5; or
c: any action that may be commenced or continued in respect of a breach of any authorisation or undertaking.
4: To avoid doubt, subsection (3) Commerce Amendment Act 2008
5: However, any breach of the Order after 1 April 2009 may be dealt with under Part 6 as if it were a breach of a customised price-quality path.
55H: How price-quality regulation under this Part applies after 1 July 2012 (or earlier expiry)
1: This section provides how price-quality regulation under this Part applies to a gas pipeline service after it ceases to be controlled by virtue of the Commerce (Control of Natural Gas Services) Order 2005 (the Order
2: The expiry of the Order must be treated as if it were the expiry of a customised price-quality path, and section 53X
3: In this section, the date on which the Order expires is—
a: the expiry date referred to in section 55G
b: if an undertaking is obtained or accepted from a supplier in respect of a service that expires on an earlier date, that earlier date, provided that the Order ceases to apply to that service on or before that date (by revocation of the Order or otherwise). Interface with Gas Act 1992
55I: Impact of certain decisions made under Gas Act 1992
1: The recommending body must advise the Commerce Commission as soon as practicable after making any recommendation for a gas governance regulation or rule under Part 4A of the Gas Act 1992, or after making any decision under gas governance regulations or rules, or after issuing any guidelines, that is or are likely to be relevant to the powers of the Commerce Commission under this Part.
2: The Commission must take into account, before exercising any of its powers under this Part,—
a: any gas governance regulation or rule under Part 4A of the Gas Act 1992, or decision under those gas governance regulations or rules, that relates to or affects the quality standards or pricing methodologies applicable to a pipeline owner:
b: any guidelines issued by the recommending body of which it is advised under subsection (1)
c: the levy payable by any pipeline owner under the Gas Act 1992.
3: The Commission must, if asked by the recommending body to do so, reconsider any section 52P subsection (2)
4: In this section, recommending body Savings provisions
55J: Savings provision until Commission publishes information disclosure requirements
1: The Gas (Information Disclosure) Regulations 1997 continue to apply to each supplier of gas pipeline services in respect of every financial year that precedes the first financial year to which a determination made by the Commission referred to in section 55E(1)
2: After that, no regulations made under section 55 of the Gas Act 1992 apply to the supplier of gas pipeline services.
55K: Savings provision for existing levy regulations for services controlled under Commerce (Control of Natural Gas Services) Order 2005
1: Any regulations made pursuant to section 74 before the repeal of that section continue to apply to each person that is a supplier of controlled services under the Commerce (Control of Natural Gas Services) Order 2005 in respect of every financial year that precedes the first financial year to which levy regulations made under section 53ZE
2: Subsection (1)
a: references in those regulations to the Commission's costs include references to the costs of exercising the Commission's powers and performing its duties under this Part, and enforcing the obligations under this Part, in respect of those persons, and with all other necessary modifications; and
b: terms used in subsection (1)
11: Airport services
Overview and interpretation
56: Overview of subpart
1: This subpart provides—
a: that specified airport services (at Auckland, Wellington, and Christchurch airports) are subject to information disclosure under this Part; and
b: for the transition to the new regime provided for in this Part; and
c: for a review of the new regime as soon as any new price is set in 2012 for specified airport services.
2: This section is only a guide.
56A: Meaning of specified airport services
1: In this Part, unless the context otherwise requires, specified airport services subsection (2)
a: aircraft and freight activities:
b: airfield activities:
c: specified passenger terminal activities:
d: any other services that are determined by the Governor-General, by Order in Council made on the recommendation of the Minister under subsection (4)
2: The companies are—
a: the company (as defined in section 2 of the Auckland Airport Act 1987) that operates Auckland International Airport or any subsidiary of, or successor to, that company that operates all or part of the airport:
b: the company (as defined in section 2 of the Wellington Airport Act 1990) that operates Wellington International Airport or any subsidiary of, or successor to, that company that operates all or part of the airport:
c: the airport company (as defined in section 2 of the Airport Authorities Act 1966) that operates Christchurch International Airport or any subsidiary of, or successor to, that company that operates all or part of the airport.
3: Terms used in subsection (1)(a) to (c)
4: The Minister may recommend that an Order in Council be made under subsection (1)(d)
a: the Commission has made a recommendation to the same effect; and
b: the services are supplied in a market where any or all of the companies referred to in subsection (2)
c: the Commission has consulted (without necessarily holding an inquiry) with interested parties. Imposition of regulation under this Part
56B: Specified airport services declared to be regulated
Specified airport services are regulated under this Part.
56C: Specified airport services are subject to information disclosure regulation
Specified airport services are subject to information disclosure regulation under this Part.
56D: Duty to also disclose to Secretary of Transport
Each supplier of specified airport services must supply to the Secretary of Transport a copy of any information disclosed under this Part, as soon as practicable after so disclosing it.
56E: Commission must make determination specifying how subpart applies
The section 52P 1 July 2010 section 52U(2) How information disclosure regulation applies
56F: Transitional provision until Commission publishes information disclosure requirements
1: The Airport Authorities (Airport Companies Information Disclosure) Regulations 1999 continue to apply to each supplier of specified airport services in respect of every financial year that precedes the first financial year to which a determination made by the Commission under section 56E
2: After that, no regulations made under section 9A of the Airport Authorities Act 1966 apply to that supplier.
3: Each supplier of specified airport services must supply to the Commission a copy of any information disclosed under those regulations, as soon as practicable after so disclosing.
4: The Commission may monitor and analyse any information supplied to it under this section.
56G: Transitional provision requiring review after new prices set
1: As soon as practicable after any new price for a specified airport service is set in or after 2012 by a supplier of the service, the Commission must—
a: review the information that has been disclosed by suppliers of specified airport services under subpart 4
b: consult (without necessarily holding an inquiry) with interested parties; and
c: report to the Ministers of Commerce and Transport as to how effectively information disclosure regulation under this Part is promoting the purpose in section 52A
2: To avoid doubt, subsection (1)
5: Part 4A repealed
1: Part 4A
2: However, Part 4A Part 4 Part 4A Amendments to Part 5
6: Commission to prepare draft determination in relation to restrictive trade practices
1: Section 62
5: If any of the persons to whom a draft determination was sent under subsection (2) notifies the Commission, in writing, within the period of 10 working days prescribed in subsection (3) that he or she wishes the Commission to hold a conference in relation to the draft determination, the Commission must appoint a date, time, and place for the holding of the conference and give notice of the date, time, and place so appointed to each of the persons to whom a draft determination was sent under subsection (2).
6: The Commission may, of its own motion, determine to hold a conference in relation to the draft determination and must appoint a date, time, and place for the holding of the conference and give notice of the date, time, and place so appointed to each of the persons to whom the draft determination was sent under subsection (2).
2: Section 62(5) and (6) section 58
7: New sections 69AB and 69AC inserted
1: The following sections are inserted after section 69A
69AB: Authorisation or clearance void if undertaking contravened
1: If a person contravenes an undertaking accepted under section 69A, the clearance given or the authorisation granted in relation to the acquisition to which the undertaking relates is void and of no effect from the date it was given or granted.
2: Subsection (1) sections 85A to 85C
69AC: Variation of undertaking
1: The Commission may, on an application made under subsection (2)
2: An application for a variation under subsection (1)
a: may be made only by the person who gave the undertaking or on whose behalf the undertaking was given; and
b: must be made no later than 20 working days before the date on which the relevant obligation under the undertaking must be met.
3: The Commission must notify the person who made the application of its decision on the application no later than 3 working days before the relevant obligation under the undertaking must be met.
4: A variation under subsection (1)
a: comes into force on a date specified in the variation (being a date that is on or after the date on which the variation is accepted); and
b: is deemed to form part of the undertaking (and, accordingly, is deemed under section 69A(3) to form part of the clearance given or the authorisation granted in relation to the acquisition to which the undertaking relates).
2: Section 69AB section 69A section 66 67
3: Section 69AC
a: every undertaking accepted under section 69A
b: every undertaking accepted under section 69A
8: Heading and sections 70 to 74 repealed
Sections 70 to 74 Amendments to Part 6
9: Jurisdiction of High Court
1: Section 75(1)
c: in the case of contraventions relating to Part 4
i: proceedings for the recovery of pecuniary penalties under section 86 or 87
ii: applications for orders under section 86A, 86C, or 87A
iii: applications for injunctions under section 87C .
2: Section 75(1)
i: applications for orders under section 85A or 85B
10: Jurisdiction of District Courts
Section 76 86 86B, 87B
11: Evidence not otherwise admissible
Section 79 under section 80 or section 83 for pecuniary penalties
12: New heading and sections 79A and 79B inserted
1: The following heading and sections are inserted after section 79 Proceedings for pecuniary penalties
79A: Proceedings for pecuniary penalties
In any proceedings under this Part for a pecuniary penalty—
a: the standard of proof is the standard of proof applying in civil proceedings; and
b: the Commission may, by the order of the Court, obtain discovery and administer interrogatories.
79B: Relationship between pecuniary penalties and criminal liability
1: Once criminal proceedings against a person for an offence under section 86B or 87B
2: Once civil proceedings against a person for a pecuniary penalty under this Part are determined, the person may not be convicted of an offence under section 86B or 87B
2: The following provisions are consequentially repealed:
a: section 74D(3) and (4)
b: section 80(3) and (4)
c: section 80B(3) and (4)
d: section 83(3) and (4)
13: Injunctions may be granted by Court for contravention of Part 3
1: The heading to section 84 or undertaking
2: Section 84
2: If it appears to the Court, on the application of the Commission, that a person intends to engage, or is engaging, or has engaged, in conduct that constitutes or would constitute a contravention of an undertaking accepted under section 69A, the Court, by order, may do all or any of the following things:
a: grant an injunction restraining any person from engaging in conduct that constitutes or would constitute—
i: a contravention of that undertaking:
ii: any attempt to contravene that undertaking:
iii: aiding, abetting, counselling, or procuring any other person to contravene that undertaking:
iv: inducing or attempting to induce any other person, whether by threats, promises, or otherwise, to contravene that undertaking:
v: being in any way directly or indirectly, knowingly concerned in, or party to, the contravention by any other person of that undertaking:
vi: conspiring with any other person to contravene that undertaking:
b: impose on any person obligations to be observed in the carrying on of any business or the safeguarding of any business or any assets of any business:
c: provide for the carrying on of any business or the safeguarding of any business or assets of any business, either by the appointment of a person to conduct or supervise the conduct of any business (on the terms and with the powers as may be specified or described in the order), or in any other manner, as it thinks necessary in the circumstances of the case.
3: Section 84(2) section 69A section 66 67
14: New sections 85A to 85C inserted
1: The following sections are inserted after section 85
85A: Pecuniary penalties for contravention of undertaking
1: The Court may, on the application of the Commission, order a person to pay a pecuniary penalty to the Crown if the Court is satisfied that the person—
a: has contravened an undertaking accepted under section 69A; or
b: has attempted to contravene an undertaking accepted under section 69A; or
c: has aided, abetted, counselled, or procured any other person to contravene an undertaking accepted under section 69A; or
d: has induced, or attempted to induce, any other person, whether by threats or promises or otherwise, to contravene an undertaking accepted under section 69A; or
e: has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by any other person of an undertaking accepted under section 69A; or
f: has conspired with any other person to contravene an undertaking accepted under section 69A.
2: However, the Court may only make an order under subsection (1)
3: The amount of pecuniary penalty must not, in respect of each act or omission, exceed $500,000.
4: In setting the amount of pecuniary penalty, the Court must take into account all of the following matters:
a: the nature and extent of the contravention:
b: the circumstances in which the contravention took place:
c: whether the person has obstructed or hindered the Commission in any attempt of the Commission to obtain compliance with the undertaking:
d: whether the person has taken any steps with the intention of—
i: impeding the disposal of assets or shares in accordance with the undertaking; or
ii: limiting the effectiveness of the undertaking in preventing a substantial lessening of competition in a market:
e: whether the person or an interconnected body corporate has previously been found by the Court in proceedings under this Part to have engaged in similar conduct.
5: Subsection (4) section 85C
6: A person may not be liable to more than 1 pecuniary penalty in respect of the same conduct.
7: An application under this section may be made at any time within 12 months from the date on which the relevant obligation under the undertaking was required to be met.
85B: Court may order divestiture of assets or shares in respect of contravention of undertaking
1: If the Court, on the application of the Commission, is satisfied that any person has contravened an undertaking accepted under section 69A and the acquisition to which the undertaking relates has proceeded, the Court may, by order, give directions for the disposal by that person of any assets or shares in accordance with the undertaking.
2: An application under this section may be made at any time within 12 months from the date on which the relevant obligation under the undertaking was required to be met.
85C: Matters Court must not take into account under sections 85A and 85B
For the purposes of sections 85A and 85B
a: whether it was appropriate for the Commission to accept the undertaking under section 69A:
b: whether the undertaking under section 69A is still necessary or desirable:
c: whether any of the terms of the undertaking under section 69A are still necessary or desirable:
d: the extent to which the contravention of the undertaking under section 69A may have lessened competition in a market.
2: Sections 85A to 85C section 69A section 66 67
15: New heading and sections 86 to 87C substituted
Sections 86 87 Regulated goods or services
86: Pecuniary penalty for contravening information disclosure requirement
1: The Court may, on application by the Commission, order any person to pay a pecuniary penalty to the Crown if the Court is satisfied that the person—
a: has contravened any information disclosure requirement (as defined in section 52C
b: has attempted to contravene any such requirement; or
c: has aided, abetted, counselled, or procured any other person to contravene any such requirement; or
d: has induced, or attempted to induce, any other person, whether by threats or promises or otherwise, to contravene any such requirement; or
e: has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by any other person of any such requirement; or
f: has conspired with any other person to contravene any such requirement.
2: In subsection (1) section 86B contravening an information disclosure requirement
a: failing to disclose information required to be disclosed:
b: failing to disclose information in the form or within the time required:
c: disclosing information under an information disclosure requirement that is false or misleading.
3: The amount of pecuniary penalty must not, in respect of each act or omission, exceed $500,000 in the case of an individual, or $5,000,000 in the case of a body corporate.
4: In determining the amount of pecuniary penalty, the Court must have regard to all relevant matters, including—
a: the nature and extent of the contravention; and
b: the circumstances in which the contravention took place (including whether the contravention was intentional, inadvertent, or caused by negligence); and
c: whether the person has previously been found by the Court in proceedings under this Part to have engaged in similar conduct.
5: A supplier may not be liable to more than 1 pecuniary penalty in respect of the same conduct.
6: Proceedings under this section may be commenced at any time within 3 years after the contravention occurred.
86A: Order requiring information disclosure requirement to be complied with
1: The Court may, on application by the Commission, order a supplier of regulated goods or services to comply with an information disclosure requirement that applies to the supplier.
2: An order under this section must specify the date by which, or period within which, the supplier must comply with the requirement.
86B: Offences relating to information disclosure regulation
1: A person commits an offence if—
a: the person, knowing that particular goods or services are subject to information disclosure regulation, intentionally contravenes any information disclosure requirement relating to those goods or services; or
b: the person is subject to an order under section 86A
2: A person who commits an offence under subsection (1)
3: Despite section 14 of the Summary Proceedings Act 1957, proceedings for an offence under subsection (1)(a)
86C: Orders where negotiate/arbitrate regulation applies
1: The Court may, on the application of a party ( party A
a: an order requiring another party to the negotiation or arbitration ( party B section 52P
b: an order requiring party B to pay party A an amount to compensate party A for loss or damage suffered as a result of party B failing to co-operate, or inadequately co-operating with, the negotiation or arbitration.
2: Any application for an order under subsection (1)(b)
3: In setting an amount under subsection (1)(b)
a: the nature and extent of the failure to co-operate; and
b: the extent to which the failure was the result of factors outside the control of party B; and
c: whether party B has previously been ordered to pay compensation for a similar failure in proceedings under this section.
87: Pecuniary penalty for contravening price-quality requirements
1: The Court may, on application by the Commission, order a person to pay a pecuniary penalty to the Crown if the Court is satisfied that the person—
a: has contravened any price-quality requirement applying to the regulated goods or services; or
b: has attempted to contravene any such requirement; or
c: has aided, abetted, counselled, or procured any other person to contravene any such requirement; or
d: has induced, or attempted to induce, any other person, whether by threats or promises or otherwise, to contravene any such requirement; or
e: has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by any other person of any such requirement; or
f: has conspired with any other person to contravene any such requirement.
2: In subsection (1) sections 87A to 87C contravening a price-quality requirement
a: refers to a requirement imposed by a determination made under section 52P Part 4
b: means either or both of the following:
i: failing to comply with the requirements for prices, whether by charging a price for the goods or services that is higher than the maximum price permitted, or by receiving more revenue than is permitted, or in any other way:
ii: refusing or failing to comply with any quality standards required under the price-quality regulation.
3: The amount of pecuniary penalty must not, in respect of each act or omission, exceed $500,000 in the case of an individual, or $5,000,000 in the case of a body corporate.
4: In setting the amount of pecuniary penalty, the Court must take into account all of the following matters:
a: the nature and extent of the contravention:
b: the nature and extent of any loss or damage suffered by any person as a result of the contravention:
c: the circumstances in which the contravention took place (including whether the contravention was intentional, inadvertent, or caused by negligence):
d: whether or not the person has previously been found by the Court in proceedings under this Part to have engaged in similar conduct.
5: A supplier may not be liable to more than 1 pecuniary penalty in respect of the same conduct.
6: Proceedings under this section may be commenced at any time within 3 years after the contravention occurred.
87A: Compensation for contravention of price-quality requirement
1: If the Court orders a person to pay a pecuniary penalty under section 87 aggrieved person
2: An application for orders under this section may be made by the Commission or any aggrieved person.
3: The application must be made within 1 year of the date of the pecuniary penalty order.
4: The Court may make an order under this section whether or not any aggrieved person is party to the proceedings.
5: In proceedings under this section, the Court may make such orders as to cost as it thinks fit.
87B: Offence relating to price-quality regulation
1: A person commits an offence if—
a: the person, knowing that particular goods or services are subject to price-quality regulation, intentionally contravenes a price-quality requirement in respect of the goods or services; or
b: the person is subject to an order under section 87C(1)(b)
2: A person who commits an offence under subsection (1)
3: Despite section 14 of the Summary Proceedings Act 1957, proceedings for an offence under subsection (1)(a)
87C: Injunction and other orders relating to price-quality regulation
1: If the Court is satisfied that goods or services that are subject to price-quality regulation are being supplied, or are likely to be supplied, in contravention of any price-quality requirement applying with respect to those goods or services, the Court may do either or both of the following:
a: grant an injunction restraining any supplier of those goods or services from supplying them in contravention of the price-quality requirement:
b: requiring the supplier to supply the goods or services in accordance with the price-quality requirement applying to them.
2: An application for an order under this section may be made by any person.
16: Other orders
Section 89
7: In this section, a reference to a contravention of this Act includes a reference to contravening the requirements of any type of regulation under Part 4
17: Appeals in relation to determinations by Commission
Section 91
1: There is a right of appeal to the High Court under this subsection against any determination of the Commission under this Act, other than the following:
a: a determination, or any part of a determination, made under section 52P section 52P determination
i: how information disclosure regulation or negotiate/arbitrate regulation applies to regulated suppliers; or
ii: the default price-quality path that applies to regulated suppliers:
b: an input methodology determination (as defined in section 52Z
1A: An appeal against a section 52P
1B: There is a right of appeal to the High Court on a question of law against any determination of the Commission under this Act (including a determination referred to in subsection (1)
18: Persons entitled to appeal
Section 92
d: in the case of an appeal against a determination made under section 52P section 52C .
19: Determination of appeals
Section 93 In determining an appeal under section 91(1), the Court may do any of the following:
20: Provisions pending determination of appeal
Section 95
2: However, the Court may not stay the application of a determination made under section 52P section 91(1) or (1B)
21: Appeal to Court of Appeal in certain cases
Section 97
5: An appeal to the Court of Appeal under this section may be made against either of the following only on a point of law:
a: a decision or order of the High Court under section 52Z
b: a decision or order of the High Court on an appeal under section 91(1) (1B) section 52P Amendments to Part 7
22: Power to search
Section 98A
4: In this section, a reference to a contravention of this Act includes a reference to contravening the requirements of any type of regulation under Part 4
23: Offences
Section 103(1)(a) section 70E or section 98 sections 53B(1)(c), 53N, 53ZD
24: Restriction on delegation
1: Section 105(1) , except in accordance with subsection (2)
2: Section 105
25: Proceedings privileged
1: Section 106(4) or that person’s spouse
2: Section 106(5) under section 80 or section 83 for pecuniary penalties
3: Section 106(5) , or that person’s spouse
4: Section 106(6)(b) 103(1)(b) 103
26: Regulations
Section 108
cb: authorising the Commission to refund a part of a prescribed fee paid by a person in any case where a written undertaking is obtained or accepted from that person: .
27: Sections 116 to 118 repealed
Sections 116 to 118 New Schedules 5 and 6 added
28: New Schedules 5 and 6 added
The Schedules 5 and 6 Schedule
2: Amendments to other Acts and order
29: Amendments to Electricity Act 1992
1: This section amends the Electricity Act 1992
2: The definition of consumer section 2(1)
a: omitting the Corporation any electricity generator
b: omitting the Corporation the electricity generator
3: Section 172E(2)(d) section 54V 2008-10-14 Electricity Act 1992
30: Amendment to Electricity Industry Reform Act 1998
1: This section amends the Electricity Industry Reform Act 1998
2: Section 92 and Part 4A 2009-04-01 Electricity Industry Reform Act 1998
31: Amendments to Gas Act 1992
1: This section amends the Gas Act 1992
2: The definition of consumer section 2(1)
a: omitting the Corporation any gas producer
b: omitting the Corporation the gas producer 2008-10-14 Gas Act 1992
32: Amendments to Airport Authorities Act 1966
1: This section amends the Airport Authorities Act 1966
2: Section 4A
4: This section does not limit the application of regulation under Part 4
3: Section 9A
1AAA: This section applies to each of the following airport companies until the end of the last day of the financial year that is referred to in section 56F
a: the company (as defined in section 2 of the Auckland Airport Act 1987) that operates Auckland International Airport (including any subsidiary of, or successor to, that company that operates all or part of the airport):
b: the company (as defined in section 2 of the Wellington Airport Act 1990) that operates Wellington International Airport (including any subsidiary of, or successor to, that company that operates all or part of the airport):
c: the airport company (as defined in section 2 of the Airport Authorities Act 1966) that operates Christchurch International Airport (including any subsidiary of, or successor to, that company that operates all or part of the airport).
1AAB: After the end of that day, this section does not apply to that company, and references in this section to every airport company are references to every company other than that company. 2008-10-14 Airport Authorities Act 1966
33: Amendment to Commerce (Control of Natural Gas Services) Order 2005
Clause 3 1 September 2016 1 July 2012 2008-10-14 Commerce (Control of Natural Gas Services) Order 2005