Commerce Amendment Act 2018

1: Title
This Act is the Commerce Amendment Act 2018.
2: Commencement
This Act comes into force on the day after the date of Royal assent.
3: Principal Act
This Act amends the Commerce Act 1986 principal Act 2018-10-26 Commerce Act 1986
1: Competition studies
4: New Part 3A inserted
After Part 3
3A: Competition studies
48: Interpretation
In this Part, unless the context otherwise requires,— competition report section 51B competition study department organisation
a: an organisation named in Part 2 of Schedule 1 of the Ombudsmen Act 1975:
b: an organisation named in Schedule 1 of the Official Information Act 1982:
c: the Auditor-General.
49: Functions of Commission under this Part
The functions of the Commission under this Act include carrying out competition studies, and preparing competition reports, under this Part.
50: Commission may carry out competition study
1: The Commission may carry out a competition study if the Commission considers it to be in the public interest to do so.
2: Before carrying out a competition study, the Commission must, by notice in the Gazette
a: prescribe the terms of reference for the study; and
b: specify the date by which the Commission will make the final competition report for the study publicly available.
3: A copy of the notice must be made publicly available.
4: The Commission may amend the notice in the manner set out in subsections (1) to (3)
5: The Commission may revoke the notice by further notice in the Gazette
51: Minister may require Commission to carry out competition study
1: The Minister may, by notice in the Gazette
2: The notice must—
a: prescribe the terms of reference for the study; and
b: specify the date by which the Commission must make the final report for the study publicly available.
3: A copy of the notice must be made publicly available.
4: Before issuing the notice, the Minister must consult the Commission on a draft of the notice.
5: The Minister may amend the notice in the manner set out in subsections (1) to (4)
6: The Minister, having first consulted with the Commission, may revoke the notice by further notice in the Gazette
51A: Competition study terms of reference
1: The terms of reference for a competition study must—
a: specify the goods or services, or both, to which the study relates; and
b: describe the scope of the study.
2: If the study is required by the Minister, the terms of reference may require the Commission to consult any of the following as part of the study:
a: departments:
b: organisations:
c: persons:
d: classes of persons.
3: If the Commission is carrying out the study on its own initiative, the terms of reference may name any of the following that it intends to consult as part of the study:
a: departments:
b: organisations:
c: persons:
d: classes of persons.
4: The Commission—
a: must carry out the competition study in accordance with the terms of reference; and
b: may exercise its discretion in relation to any ancillary matters that are related to, but not explicitly covered by, the terms of reference.
51B: Preparation of competition report
1: The Commission must prepare a competition report that records its findings from the competition study.
2: The Commission may make recommendations in the report but it is not required to do so.
3: The recommendations may, without limitation, include 1 or more of the following:
a: changes to legislation or other instruments:
b: changes to the policies or practices of central or local government:
c: changes to the policies or practices of a person or an organisation responsible for the oversight or regulation of a specified industry:
d: changes to the amount or type of information made available by a person or an organisation in relation to a specified industry:
e: that a person or an organisation research or monitor a specified matter:
f: that persons within a specified industry change their behaviour.
51C: Consultation on draft competition report
1: Before a competition report is finalised, the Commission must—
a: make a draft report publicly available; and
b: allow a reasonable time for comments on the draft.
2: In preparing its final report, the Commission must have regard to any comments received on the draft report within the time allowed.
51D: Publication and status of competition report
1: The Commission must—
a: provide the final competition report to the Minister; and
b: at least 5 working days later, make the final competition report publicly available.
2: To avoid doubt, a competition report is not a determination of the Commission.
51E: Minister must respond to competition report
The Minister must respond to the final competition report within a reasonable time after the report is made publicly available.
2: Specified airport services
5: Section 52C amended (Interpretation)
1: In section 52C inquiry inquiry
a: for the purposes of subpart 11 sections 56F to 56H
b: for all other purposes, an inquiry by the Commission that is carried out in accordance with sections 52H to 52J
2: In section 52C publicly available
6: Section 52P amended (Determinations by Commission under this section)
1: In section 52P(2)﻿(b)
a: replace any of subparts 9 to 11 subparts 9 and 10
b: replace 55E, and 56E. and 55E; and
2: After section 52P(2)﻿(b)
c: in the case of regulation being imposed on specified airport services under section 56K section 56L
7: Section 52U amended (When input methodologies must be determined)
Repeal section 52U(1) and (2)
8: Section 53B amended (Effect of being subject to information disclosure regulation)
After section 53B(2)
3: To avoid doubt, the Commission may, as part of a summary and analysis, include an analysis of how effective the information disclosure requirements imposed on the goods or services are in promoting the purpose of this Part.
9: Section 53ZD amended (Powers of Commission under this Part)
In section 53ZD
2: In subsection (1)﻿(e), inquiry sections 56F to 56H
10: Subpart 11 of Part 4 replaced
Replace subpart 11
11: Airport services
Overview and interpretation
56: Overview of subpart
1: This subpart provides that—
a: specified airport services are subject to information disclosure regulation under this Part; and
b: negotiate/arbitrate regulation, default/customised price-quality regulation, or individual price-quality regulation may be imposed on specified airport services after an inquiry; and
c: other services may be declared specified airport services by Order in Council.
2: This section is only a guide.
56A: Interpretation
1: In this subpart,— specified airport company
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; and
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; and
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 specified airport services
a: aircraft and freight activities:
b: airfield activities:
c: specified passenger terminal activities:
d: any other services declared to be specified airport services by Order in Council made under section 56M
2: In subsection (1) aircraft and freight activities airfield activities specified passenger terminal activities Specified airport services regulated under this Part
56B: Specified airport services declared to be regulated
Specified airport services are regulated under this Part.
56C: Specified airport services subject to information disclosure regulation
Specified airport services are subject to information disclosure regulation under this Part.
56D: Specified airport services subject to additional regulation if imposed by Order in Council
In addition to information disclosure regulation, specified airport services are subject to the type of regulation (if any) imposed by Order in Council made under section 56K Duty to supply information to Secretary
56E: Duty to supply information to Secretary
A specified airport company must, as soon as practicable after disclosing information under this Part, supply a copy of the information to the Secretary (as defined in section 2(1) of the Civil Aviation Act 1990). Commission inquiry into regulation of specified airport services
56F: How inquiry triggered
1: The Commission—
a: must hold an inquiry into the regulation of specified airport services if required to do so by the Minister; and
b: may hold an inquiry on its own initiative.
2: Any requirement by the Minister must—
a: be in writing; and
b: specify the date by which the Commission must make a recommendation to the Minister under section 56H
56G: Commission inquiry
1: In conducting an inquiry into the regulation of specified airport services, the Commission must consider—
a: whether, in addition to information disclosure regulation, 1 of the following types of regulation should be imposed on the services:
i: negotiate/arbitrate regulation:
ii: default/customised price-quality regulation:
iii: individual price-quality regulation; and
b: if so, how that type of regulation should apply to specified airport companies.
2: As part of the inquiry, the Commission must—
a: determine or amend (and then apply) input methodologies for the supply of the services, in accordance with subpart 3; and
b: when considering whether a type of regulation might be imposed, assess the benefits of imposing different types of regulation in meeting the purpose of this Part against the costs of imposing those types of regulation.
3: The input methodologies must be determined or amended as soon as practicable after the inquiry is triggered.
4: During an inquiry, the Commission may have regard to any other matters it considers necessary or desirable for the purpose of the inquiry.
5: An inquiry under this section must follow the process set out in section 52J.
56H: Commission’s recommendations following inquiry
1: At the end of an inquiry, having considered the matters in section 56G
a: negotiate/arbitrate regulation:
b: default/customised price-quality regulation:
c: individual price-quality regulation.
2: If the Commission recommends imposing a type of regulation specified in subsection (1)
a: the type of regulation that is recommended:
b: what input methodologies apply:
c: if negotiate/arbitrate regulation is recommended, the material provisions of the negotiation process and arbitration process:
d: if default/customised price-quality regulation is recommended, the default price path and quality standards:
e: if individual price-quality regulation is recommended, the material provisions to apply.
3: The Minister must publish the Commission’s recommendation, and may do so in whatever way the Minister considers appropriate.
4: To avoid doubt, a recommendation by the Commission is not a determination of the Commission. Order in Council imposing additional type of regulation
56I: Minister must consider Commission’s recommendation
1: The Minister must consider any recommendation of the Commission made under section 56H
2: When considering the recommendation, the Minister—
a: must consult with the Minister of Transport; and
b: may request further information or advice from the Commission.
3: If the Minister proposes a different type of regulation to the type that the Commission recommends, the Minister must request written advice from the Commission on what the material provisions of a section 52P determination would be likely to be under the Minister’s proposal.
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 applies with all necessary modifications.
56J: Minister’s decision and recommendation
1: Having considered the Commission’s recommendation in accordance with section 56I section 56I(3)
a: decide whether, in addition to information disclosure regulation, 1 of the following types of regulation should be imposed on specified airport services:
i: negotiate/arbitrate regulation:
ii: default/customised price-quality regulation:
iii: individual price-quality regulation; and
b: if so, make a recommendation to the Governor-General specifying the type of regulation that should be imposed.
2: The Minister’s decision may be the same as, or different from, the Commission’s recommendation under section 56H
3: If the Minister’s decision is different from the Commission’s recommendation, the Minister must set out the reasons for the decision and make the decision, with the reasons, publicly available.
56K: Order in Council imposing additional type of regulation
1: The Governor-General may, on the recommendation of the Minister made under section 56J
a: negotiate/arbitrate regulation:
b: default/customised price-quality regulation:
c: individual price-quality regulation.
2: The order must include an expiry date (which must be no later than 20 years after the commencement date) at the close of which the order is revoked.
3: Despite subsection (2)
4: The order is a legislative instrument and a disallowable instrument for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.
56L: Commission determination about how regulation applies
1: As soon as practicable after an Order in Council is made under section 56K
2: The determination must not differ in any material respect from the recommendation under section 56H section 56I(3) Declaring services to be specified airport services
56M: Order in Council declaring specified airport services
1: The Governor-General may, on the recommendation of the Minister, make an Order in Council declaring 1 or more services to be specified airport services for the purposes of this subpart
2: Before recommending that an Order in Council be made, the Minister must be satisfied that—
a: the Commission has made a recommendation to the same effect; and
b: the Commission has consulted (without necessarily holding an inquiry) with interested parties.
3: Before making a recommendation under subsection (2)﻿(a)
a: must assess the benefits, in meeting the purpose of this Part, of declaring the services to be specified airport services against the costs of declaring the services to be specified airport services; and
b: must be satisfied that the services are supplied in a market where 1 or more of the specified airport companies have a substantial degree of market power. Subpart 2 not limited
56N: Subpart 2 not limited
This subpart
3: Enforceable undertakings, information management, and miscellaneous provisions
Enforceable undertakings
11: Section 69A amended (Commission may accept undertakings)
After section 69A(3)
4: This section overrides section 74A
12: Sections 74AA to 74D and cross-heading replaced
Replace sections 74AA to 74D Power to accept undertakings
74A: Commission may accept undertakings
1: The Commission may accept a written undertaking given by, or on behalf of, a person in connection with any matter relating to the enforcement of this Act.
2: The person may withdraw or vary the undertaking with the consent of the Commission.
3: See 1986 No 121 s 46A
74B: Matters included in undertakings
1: An undertaking under section 74A
a: an undertaking to pay compensation to any person or otherwise take action to avoid, remedy, or mitigate any actual or likely adverse effects arising from a contravention, or possible contravention, of this Act:
b: an undertaking to pay to the Commission all or part of the Commission’s costs incurred in investigating, or bringing proceedings in relation to, a contravention, or possible contravention, of this Act.
2: However, the Commission may accept an undertaking relating to the enforcement of section 47 only if the undertaking is to dispose of assets or shares specified in the undertaking.
3: If the Commission accepts an undertaking that involves payment of compensation to any person, or payment of the Commission’s costs, the Commission must make the following information publicly available:
a: the amount of the compensation, or of the Commission’s costs, that has been undertaken to be paid; and
b: a brief description of the circumstances and nature of the contravention or possible contravention of this Act to which the undertaking relates.
4: In this section, a contravention
a: an actual contravention:
b: aiding, abetting, counselling, or procuring a contravention:
c: inducing a contravention, whether by threats, promises, or otherwise:
d: being in any way, directly or indirectly, knowingly concerned in, or party to, a contravention:
e: conspiring with any other person in a contravention.
74C: Enforcement of undertakings
1: If the Commission considers that a person has breached an undertaking given under section 74A subsection (2)
2: The court may make any 1 or more of the following orders if it is satisfied that the person has breached a term of the undertaking:
a: an order directing the person to comply with the term:
b: an order directing the person to pay to the Crown an amount not exceeding the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach:
c: any order that the court thinks appropriate that directs the person to compensate any other person who has suffered loss or damage as a result of the breach:
d: an order for any consequential relief that the court thinks appropriate. 1986 No 121 s 46B
13: Section 75 amended (Jurisdiction of High Court)
1: In section 75(1) shall must
2: Replace section 75(1)﻿(aa)
aa: applications for orders under section 74C
14: Section 76 amended (Jurisdiction of District Courts)
1: In the heading to section 76 Courts Court
2: In section 76 shall must
15: Section 92 amended (Persons entitled to appeal)
Repeal section 92(f) Information management
16: Section 100 amended (Powers of Commission to prohibit disclosure of information, documents, and evidence)
After section 100(4)
5: For the purposes of this section, an inquiry section 48 Miscellaneous and transitional provisions
17: Section 2 amended (Interpretation)
1: In section 2(1) Commissioner
2: In section 2(1) 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
18: Section 30C amended (Cartel provisions generally unenforceable)
In section 30C(2) 44A(4) and (5) 44A(4) or (5)
19: Section 31 amended (Exception for collaborative activity)
In section 31(3)﻿(a) understanding that contains the provision
20: Section 87C amended (Injunction and other orders relating to price-quality regulation)
1: In section 87C(1)﻿(b) requiring make an order requiring
2: In section 87C(2) for an injunction or
21: Schedule 1AA amended
In Schedule 1AA, after Part 1 Part 2 Schedule