Reprint as at 1 April 2014

Commerce Act 1986

Public Act1986 No 5
Date of assent28 April 1986
Commencementsee section 1(2)

Note

Changes authorised by subpart 2 of Part 2 of the Legislation Act 2012 have been made in this official reprint.

Note 4 at the end of this reprint provides a list of the amendments incorporated.

This Act is administered by the Ministry of Business, Innovation, and Employment.


Contents

Title [Repealed]

1 Short Title and commencement

1A Purpose

2 Interpretation

3 Certain terms defined in relation to competition

3A Commission to consider efficiency

4 Application of Act to conduct outside New Zealand

5 Application of Act to the Crown

6 Application of Act to Crown corporations

6A Special provisions relating to application of Act to the Crown in right of Australia and to Australian Crown corporations

6B Crown and Crown corporations not immune from jurisdiction in relation to certain provisions of Trade Practices Act 1974

6C Application of Evidence Amendment Act 1980

7 Law relating to restraint of trade and breaches of confidence not affected

Part 1
The Commerce Commission

8 Establishment of Commission

8A Application of Crown Entities Act 2004

9 Membership of Commission

10 Terms and conditions of appointment

11 Associate members

12 Chairperson and deputy chairperson

13 Termination of appointment of members

14 Disclosure of financial interests [Repealed]

15 Meetings of Commission

16 Chairperson may direct Commission to sit in Divisions

17 Assent to determination

18 Officers and employees [Repealed]

18A Personnel policy [Repealed]

18B Equal employment opportunities [Repealed]

18C Choice of procedure [Repealed]

18D Superannuation and retiring allowances

19 Money to be appropriated by Parliament for purposes of this Act [Repealed]

20 Funds of Commission [Repealed]

21 Bank accounts [Repealed]

22 Crown entity [Repealed]

23 Investment of money [Repealed]

24 Exemption from income tax

25 Functions of Commission in relation to dissemination of information

26 Commission to have regard to economic policies of Government

Part 2
Restrictive trade practices

Practices substantially lessening competition

27 Contracts, arrangements, or understandings substantially lessening competition prohibited

28 Covenants substantially lessening competition prohibited

29 Contracts, arrangements, or understandings containing exclusionary provisions prohibited

Price fixing

30 Certain provisions of contracts, etc, with respect to prices deemed to substantially lessen competition

31 Joint venture pricing exempt from application of section 30

32 Certain recommendations as to prices for goods and services exempt from application of section 30

33 Joint buying and promotion arrangements exempt from application of section 30

34 Certain provisions of covenants with respect to prices deemed to substantially lessen competition

Practices substantially lessening competition conditional upon authorisation

35 Contracts or covenants subject to authorisation not prohibited under certain conditions [Repealed]

Taking advantage of market power

36 Taking advantage of market power

36A Taking advantage of market power in trans-Tasman markets

36B Purposes may be inferred

Resale price maintenance

37 Resale price maintenance by suppliers prohibited

38 Resale price maintenance by others prohibited

39 Recommended prices

40 Withholding the supply of goods

41 Preventing the supply of goods

42 Special evidentiary provisions in respect of certain resale price maintenance practices

43 Statutory exceptions

44 Other exceptions

45 Exceptions in relation to intellectual property rights

46 Saving in respect of business acquisitions

Part 3
Business acquisitions

47 Certain acquisitions prohibited

48 Bare transfer of market dominance excluded [Repealed]

49 Application to building societies [Repealed]

50 Certain merger or takeover proposals require clearance or authorisation [Repealed]

51 Contracts subject to condition of clearance or authorisation [Repealed]

Part 4
Regulated goods or services

Subpart 1Preliminary provisions

52 Overview of Part

52A Purpose of Part

52B Outline of Part

52C Interpretation

52D Meaning and application of claw-back

Subpart 2Regulating particular goods or services

52E Overview of process if regulation imposed on goods or services

52F Effect of goods or services being subject to regulation

52G When goods or services may be regulated

Commission inquiry

52H How inquiry triggered

52I Commission inquiry into particular goods or services

52J Process of inquiry

52K Commission's recommendation following inquiry

Order in Council imposing regulation

52L Minister's consideration

52M Minister's decision and recommendation

52N Order in Council imposing regulation

52O Revocation or amendment of Order in Council

Commission determination about how regulation applies

52P Determinations by Commission under this section

52Q Amendment of section 52P determination

Subpart 3Input methodologies

52R Purpose of input methodologies

52S How published input methodologies apply

52T Matters covered by input methodologies

52U When input methodologies must be determined

52V Commission process for determining input methodologies

52W Publication of input methodologies

52X Amendment of input methodologies

52Y Review and date of publication of input methodologies

Appeals against input methodology determinations

52Z Appeals against input methodology determinations

52ZA Process for appeals

53 Input methodology applies pending outcome of appeal

Subpart 4Information disclosure regulation

53A Purpose of information disclosure regulation

53B Effect of being subject to information disclosure regulation

53C Section 52P determination to set out information disclosure requirements

53D Consolidated information may also be required

53E Charge for providing copies to public

53F Limited exception to obligation to apply input methodologies

Subpart 5Negotiate/arbitrate regulation

53G Purpose of negotiate/arbitrate regulation

53H Overview of negotiate/arbitrate regulation

53I Section 52P determination to set out requirements for application of negotiate/arbitrate regulation

53J Compulsory arbitration

Subpart 6Default/customised price-quality regulation

53K Purpose of default/customised price-quality regulation

53L Overview of default/customised price-quality regulation

53M Content and timing of price-quality paths

53N Monitoring compliance with price-quality paths

Default price-quality path

53O Section 52P determination to set out requirements of default price-quality paths

53P Resetting starting prices, rates of change, and quality standards

Customised price-quality paths

53Q Supplier may propose customised price-quality path

53R Effect of making proposal for customised price-quality path

53S Preliminary assessment of proposal

53T Process and timing for assessing proposal

53U Extension of time frames

53V Determination setting customised price-quality path

53W Term of customised price-quality paths

53X What happens when customised price-quality path ends

53Y Commission's costs relating to assessing, setting, and reconsidering customised price-quality path

53Z Prioritisation by Commission

53ZA What happens if Commission does not make decision within time frame

What happens to price-quality paths if input methodologies change

53ZB What happens to price-quality paths if input methodologies change

Subpart 7Individual price-quality regulation

53ZC Price-quality path for individual businesses

Subpart 8Miscellaneous provisions

53ZD Powers of Commission under this Part

53ZE Levies

53ZF Material may be incorporated by reference

53ZG Power to exempt disclosure of commercially sensitive information

Subpart 9Electricity lines services

Application, overview, and interpretation

54 Overview of how subpart applies

54A Overview of when subpart applies

54B Interpretation for subpart

54C Meaning of electricity lines services

54D Definition of consumer-owned

Imposition of regulation under this Part

54E Electricity lines services declared to be regulated

54F All electricity lines services are subject to information disclosure regulation

54G Certain electricity lines services are also subject to default/customised price-quality regulation

54H How exempt status can be lost and default/customised price-quality regulation can be applied to consumer-owned suppliers

54I Commission must make section 52P determination specifying how subpart applies

54J Section 52P determinations setting out default price-quality paths applying from 1 April 2009

54K Section 52P determinations setting out default price-quality paths applying from 1 April 2010

Transitional arrangements

54L Administrative settlements made before 1 April 2009 (other than with Transpower)

54M Administrative settlements with Transpower made before 1 April 2009

54N Breaches of thresholds and default price-quality paths before 1 April 2010

54O Breaches of control imposed, or administrative settlements entered into, after 1 April 2009

54P Proposals for customised price-quality paths

Energy efficiency

54Q Energy efficiency

Transpower grid upgrade plans and capital expenditure proposals

54R Approval of Transpower's grid upgrade plans

54S Commission to prepare input methodology for capital expenditure proposals

54T Procedure before jurisdiction order can be made [Repealed]

54U Levies during transition in jurisdiction [Repealed]

Interface with Electricity Industry Act 2010

54V Impact of certain decisions made under Electricity Industry Act 2010

Savings provisions

54W Savings provision relating to existing information disclosure requirements

54X Savings provision for existing levy regulations for electricity lines businesses

Subpart 10Gas pipeline services

Overview and interpretation

55 Overview of subpart

55A Meaning of gas pipeline services

Imposition of regulation under this Part

55B Gas pipeline services declared to be regulated

55C All gas pipeline services are subject to information disclosure regulation

55D All gas pipeline services are subject to price-quality regulation

55E Commission must make section 52P determination specifying how subpart applies

55F Section 52P determinations setting out first default price-quality paths

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)

55H How price-quality regulation under this Part applies after 1 July 2012 (or earlier expiry)

Interface with Gas Act 1992

55I Impact of certain decisions made under Gas Act 1992

Savings provisions

55J Savings provision until Commission publishes information disclosure requirements

55K Savings provision for existing levy regulations for services controlled under Commerce (Control of Natural Gas Services) Order 2005

Subpart 11Airport services

Overview and interpretation

56 Overview of subpart

56A Meaning of specified airport services

Imposition of regulation under this Part

56B Specified airport services declared to be regulated

56C Specified airport services are subject to information disclosure regulation

56D Duty to also disclose to Secretary of Transport

56E Commission must make determination specifying how subpart applies

How information disclosure regulation applies

56F Transitional provision until Commission publishes information disclosure requirements

56G Transitional provision requiring review after new prices set

57 Commission process [Repealed]

57A Technical provisions relating to declaration of control [Repealed]

57B Records to be kept for control purposes [Repealed]

57C Other Acts relating to price control not affected [Repealed]

57CA Impact of certain decisions made under Gas Act 1992 [Repealed]

Part 4A
Provisions applicable to electricity industry

[Repealed]

57D Interpretation [Repealed]

57DAA Meaning of electricity lines business [Repealed]

57DAAB Meaning of electricity supply business [Repealed]

57DA Body that exercises jurisdiction under this Part [Repealed]

57DB Transfer of jurisdiction in respect of Transpower [Repealed]

57DC Transfer of jurisdiction relating to other large electricity lines businesses [Repealed]

57DD Procedure before jurisdiction order can be made [Repealed]

57DE Levies during transition in jurisdiction [Repealed]

57DF Ministerial powers [Repealed]

Subpart 1Controlled goods or services

[Repealed]

57E Purpose [Repealed]

57F Commission, not Minister, may declare that goods or services supplied by large electricity lines businesses are controlled [Repealed]

57G Thresholds for declaration of control [Repealed]

57GA Incorporation by reference of material in thresholds [Repealed]

57GB Effect of amendments to, or replacement of, material incorporated by reference in thresholds [Repealed]

57GC Amendments to, or replacement of, material incorporated by reference to be of same general character as original material [Repealed]

57GD Proof of material incorporated by reference [Repealed]

57GE Effect of expiry of material incorporated by reference [Repealed]

57GF Requirement to consult [Repealed]

57GG Access to material incorporated by reference [Repealed]

57H Process for making decisions on declaration of control [Repealed]

57I Process before declaration made [Repealed]

57J Effect of declaration of control [Repealed]

57K Priorities [Repealed]

57L Maximum of 5 years for duration of declaration [Repealed]

57M Authorisations and undertakings [Repealed]

57MA Impact of certain decisions made under Electricity Act 1992 [Repealed]

57N Commission may lift control [Repealed]

Subpart 2Transpower's pricing methodology

[Repealed]

57O Commission may be required to authorise Transpower's pricing methodology [Repealed]

57P Authorisations in respect of Transpower's pricing methodology [Repealed]

57Q Authorisations and undertakings [Repealed]

57R Enforcement of authorisations [Repealed]

57S Revocation of authorisations [Repealed]

Subpart 3Information disclosure

[Repealed]

57T Information disclosure [Repealed]

57U Information to be supplied to Commerce Commission [Repealed]

57V Commerce Commission to publish summaries [Repealed]

57W Reasonable charge may be imposed for providing copies of statements [Repealed]

Subpart 4Asset valuations

[Repealed]

Recalibration of asset values of large electricity line owners

57X Purpose of recalibrations [Repealed]

57Y Interpretation [Repealed]

57Z Large electricity line owners must supply valuation to Commerce Commission [Repealed]

57ZA Comprehensive audit of asset values of large electricity line owners [Repealed]

57ZB Procedure after audit of asset values carried out [Repealed]

57ZC Outcome of audit of asset values [Repealed]

Review of valuation methodologies

57ZD Review of valuation methodologies [Repealed]

57ZE Process when carrying out review of valuation methodologies [Repealed]

Subpart 5General provisions

[Repealed]

57ZF Powers of Commission [Repealed]

57ZG Powers of entry and inspection [Repealed]

57ZH Authorised persons to prove identity [Repealed]

57ZI Offence to obstruct authorised persons [Repealed]

57ZJ Other offences [Repealed]

57ZK Levy of electricity lines businesses [Repealed]

Part 5
Authorisations and clearances

Restrictive trade practices

58 Commission may grant authorisation for restrictive trade practices

58A Effect of authorisation

58B Additional provisions relating to authorisations

59 Contracts or covenants subject to authorisation not prohibited under certain conditions

59A When Commission may grant authorisation

59B Contraventions not prevented by granting of authorisation under section 59 or section 59A

60 Procedure for applications for authorisation of restrictive trade practices

61 Determination of applications for authorisation of restrictive trade practices

62 Commission to prepare draft determination in relation to restrictive trade practices

63 Commission may grant provisional authorisation [Repealed]

64 Procedure at conference

65 Commission may vary or revoke authorisations

Business acquisitions

66 Commission may give clearances for business acquisitions

67 Commission may grant authorisations for business acquisitions

68 Provisions applying to applications for clearances and authorisations for business acquisitions

69 Effect of clearance or authorisation

69A Commission may accept undertakings

69AB Authorisation or clearance void if undertaking contravened

69AC Variation of undertaking

69B Conferences in relation to business acquisitions

Authorisations in respect of controlled goods or services

[Repealed]

70 Authorisations in respect of prices, revenues, and quality standards [Repealed]

70A Considerations to be observed by Commission [Repealed]

70B Procedure for making authorisations [Repealed]

70C Remedies and penalties if overcharging or quality standards breached [Repealed]

70D Terms of authorisations [Repealed]

70E Investigations and audits [Repealed]

70F Revocation and amendment of authorisations [Repealed]

71 Provisional authorisations [Repealed]

72 Alternative undertakings [Repealed]

73 Conferences in relation to authorisations about controlled goods or services [Repealed]

74 Levies [Repealed]

Part 6
Enforcement, remedies, and appeals

Cease and desist orders

74AA Cease and desist Commissioners

74A Commissioner may make cease and desist orders

74B Investigation, notice, and opportunity to be heard

74C Procedure at cease and desist hearing

74D Pecuniary penalties for contravention of cease and desist order

Jurisdiction of courts

75 Jurisdiction of High Court

76 Jurisdiction of District Courts

77 Additional lay members of High Court for purposes of appellate jurisdiction in respect of Commission determinations

78 Lay members of High Court in certain cases

79 Evidence not otherwise admissible

Proceedings for pecuniary penalties

79A Proceedings for pecuniary penalties

79B Relationship between pecuniary penalties and criminal liability

Restrictive trade practices

80 Pecuniary penalties

80A Body corporate not to indemnify certain persons in respect of pecuniary penalties

80B Pecuniary penalties for contravention of section 80A

80C Court may order certain persons to be excluded from management of body corporate

80D Application for order under section 80C

80E Offence to act in contravention of order made under section 80C

81 Injunctions may be granted by court for contravention of Part 2

82 Actions for damages for contravention of Part 2

82A Exemplary damages for contravention of Part 2

Business acquisitions

83 Pecuniary penalties

84 Injunctions may be granted by court for contravention of Part 3 or undertaking

84A Actions for damages for contravention of Part 3

85 Court may order divestiture of assets or shares in respect of contravention of Part 3

85A Pecuniary penalties for contravention of undertaking

85B Court may order divestiture of assets or shares in respect of contravention of undertaking

85C Matters court must not take into account under sections 85A and 85B

Regulated goods or services

86 Pecuniary penalty for contravening information disclosure requirement

86A Order requiring information disclosure requirement to be complied with

86B Offences relating to information disclosure regulation

86C Orders where negotiate/arbitrate regulation applies

87 Pecuniary penalty for contravening price-quality requirements

87A Compensation for contravention of price-quality requirement

87B Offence relating to price-quality regulation

87C Injunction and other orders relating to price-quality regulation

Injunctions generally

88 General provisions relating to granting of injunctions

88A When undertaking as to damages not required by Commission

89 Other orders

90 Conduct by servants or agents

Appeals from determinations of Commission

91 Appeals in relation to determinations by Commission

92 Persons entitled to appeal

93 Determination of appeals

94 Court may refer appeals back for reconsideration

95 Provisions pending determination of appeal

96 Court may order proceedings to be heard in private

97 Appeal to Court of Appeal in certain cases

Part 7
Miscellaneous provisions

98 Commission may require person to supply information or documents or give evidence

98A Power to search

98B Powers conferred by warrant [Repealed]

98C Warrant to be produced [Repealed]

98D Other duties of person who executes a warrant [Repealed]

98E Duty to assist [Repealed]

98F Power to inspect and take copies of documents, etc [Repealed]

98G Commission may exercise powers notwithstanding other proceedings

98H Supply of information and documents in relation to section 36A

99 Powers of Commission to take evidence

99A Commission may receive information and documents on behalf of Australian Competition and Consumer Commission

99B Purpose of sections 99C to 99P (which relate to assistance to overseas regulators)

99C Definitions of terms used in sections 99B to 99P

99D Restrictions on providing compulsorily acquired information and investigative assistance

99E Government-to-government co-operation arrangements

99F Regulator-to-regulator co-operation arrangements

99G Content of co-operation arrangements

99H Procedures relating to co-operation arrangements

99I Providing compulsorily acquired information and investigative assistance

99J Conditions on providing compulsorily acquired information and investigative assistance

99K Notice to persons affected by provision of information

99L Reporting on use of co-operation arrangements

99M Sharing of non-compulsorily acquired information not affected

99N Information provided by consent

99O Part 4 information not to be provided

99P Maintenance of privilege

100 Powers of Commission to prohibit disclosure of information, documents, and evidence

100A Commission may state case for opinion of High Court

101 Notices

102 Service of notices

103 Offences

104 Determinations of Commission

105 Restriction on delegation

106 Proceedings privileged

106A Judicial notice

107 Annual report [Repealed]

108 Regulations

109 Commission may prescribe forms

110 Repeals, revocations, savings, and consequential amendments

111 Transitional provisions in respect of certain contracts, arrangements, or understandings

112 Transitional provisions in respect of goods and services subject to price control under Commerce Act 1975 [Repealed]

113 Transitional provisions in respect of goods and services subject to price restraint under regulations made under Commerce Act 1975 [Repealed]

114 Transitional provisions in respect of milk pricing [Repealed]

115 Savings in respect of certain provisions of Commerce Act 1975 [Repealed]

116 Winding up of Commerce Commission established under Commerce Act 1975 [Repealed]

117 Members of Commerce Commission established under Commerce Act 1975 deemed to be members of Commission [Repealed]

118 Lay members of High Court appointed pursuant to Commerce Act 1975 deemed to be lay members of High Court appointed under this Act [Repealed]

Schedule 1
Classes of merger or takeover proposals requiring prior clearance or authorisation by the Commission

[Repealed]

Schedule 2
Enactments amended

Schedule 3
Enactments repealed

Schedule 4
Orders and notices revoked

Schedule 5
Material incorporated by reference

Schedule 6
Exemptions from Part 4 in respect of specific pipelines

Commerce Amendment Act 1990

Commerce (Clearance Validation) Amendment Act 2001

Commerce Amendment Act 2004

Reprint notes


Title  [Repealed]

  • Title: repealed, on 26 May 2001, by section 3 of the Commerce Amendment Act 2001 (2001 No 32).