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293—2
As reported from the Commerce Committee
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Hon Simon Power
Government Bill
293—2
Part 1
Co-operation with overseas regulators
Subpart 1—Amendments to Commerce Act 1986
6 New sections 99B to 99O inserted
Subpart 2—Amendment to Credit Contracts and Consumer Finance Act 2003
8 Application of Commerce Act 1986
Subpart 3—Amendments to Fair Trading Act 1986
The Parliament of New Zealand enacts as follows:
This Act is the Commerce Commission (International Co-operation, and Fees) Act 2008.
This Act comes into force on the day after the date on which it receives the Royal assent.
(1) The purpose of this Act is—
(a) to provide for when and how the Commerce Commission may provide compulsorily acquired information and investigative assistance to overseas regulators that have competition, consumer credit, or fair trading law functions, and to clarify other matters relating to the provision of information; and
(b) to allow the Commerce Commission to refund or provide exemptions in relation to certain fees payable in connection with applications under the Commerce Act 1986.
(2) In order to achieve the purpose set out in subsection (1)(a), Part 1 amends—
(a) the Commerce Act 1986; and
(b) the Credit Contracts and Consumer Finance Act 2003; and
(c) the Fair Trading Act 1986.
(3) In order to achieve the purpose set out in subsection (1)(b), Part 2 amends section 108 of the Commerce Act 1986 to allow regulations to be made to provide for refunds and exemptions.
This subpart amends the Commerce Act 1986.
Section 98A is amended by adding the following subsection:
“(
45) For the purpose of allowing the Commission to provide, under section 99H, compulsorily acquired information and investigative assistance to a recognised overseas regulator, every reference in this section to a contravention of this Act must be taken to include a reference to a contravention of any foreign enactment that is identified (as required by section 99F(1)(b)) in the co-operation arrangement concerning that recognised overseas regulator.”
The following sections are inserted after section 99A:
“99B Purpose of sections 99C to 99O (which relate to assistance to overseas regulators)
The purpose of sections 99C to 99O is—
“(a) to provide for when and how the Commission may provide compulsorily acquired information and investigative assistance to overseas regulators; and
“(b) to clarify other matters relating to sharing other kinds of information with overseas regulators.
“99C Definitions of terms used in sections 99B to 99O
In sections 99B to 99O, unless the context otherwise requires,—
“co-operation arrangement means an arrangement concerning the Commerce Commission and an overseas regulator that is entered into under section 99E between the Government of New Zealand and—
“(a) the government of the country in which the overseas regulator is established; or
“(b) if the overseas regulator is established by an international body, the government of that international body“co-operation arrangement means an arrangement concerning the Commission and an overseas regulator that is entered into under section 99E (a government-to-government co-operation arrangement) or section 99EA (a regulator-to-regulator co-operation arrangement) for—
“(a) the provision by the Commission of compulsorily acquired information and investigative assistance to the overseas regulator; and
“(b) the provision by the overseas regulator of information and investigative assistance to the Commission
“compulsorily acquired information means information that—
“(a) is acquired by the Commission, whether before or after this section comes into force, as a result of, or in relation to, the exercise by the Commission of any of its powers under section 98, 98A, or 98H, or any power incidental to those powers; and
“(b) is not in the public domain
“investigative assistance includes providing assistance by way of exercising any power of the Commission under, or in relation to, section 98, 98A, or 98H, and any powers incidental to those powers
“overseas regulator means an overseas body that has competition law functions corresponding to those of the Commission under this Act
“recognised overseas regulator means an overseas regulator that is the subject of a co-operation arrangement.
“99D Restrictions on providing compulsorily acquired information and investigative assistance
The Commission must not provide compulsorily acquired information or investigative assistance to an overseas regulator unless the information or assistance is provided—
“(a) to a recognised overseas regulator in accordance with a co-operation arrangement; and
“(b) in accordance with sections 99H to 99J.
“99E
Entering intoGovernment-to-government co-operation arrangements
“(1) The Minister may, on behalf of the Government of New Zealand, enter into a co-operation arrangement concerning an overseas regulator
forwith—
“(a) the provision by the Commission of information and investigative assistance to the overseas regulator; and
“(b) the provision by the overseas regulator of information and investigative assistance to the Commission.
“(a) the government of the country in which the overseas regulator is established; or
“(b) if the overseas regulator is established by an international body, the governing body of that international body.
“(2) Before entering into a co-operation arrangement concerning an overseas regulator, the Minister must—
“(a) have regard to the legal framework relating to the use of compulsorily acquired information in the jurisdiction of the overseas regulator; and
“(b) have regard to the potential consequences for New Zealand consumers and businesses of providing compulsorily acquired information or investigative assistance to the overseas regulator; and
“(c) consult with the Privacy Commissioner on any privacy issues arising from the proposed co-operation arrangement.
“(3) The Minister must not enter into a co-operation arrangement unless he or she is satisfied that entering into the arrangement is not inconsistent with any of New Zealand’s obligations under international agreements, conventions, or treaties.
“(4) Every co-operation arrangement must provide for the Commission and the overseas regulator to provide information and assistance to each other.“99EA Regulator-to-regulator co-operation arrangements
“(1) The Commission may, with the prior written approval of the Minister, enter into a co-operation arrangement with an overseas regulator.
“(2) The Minister may not give approval to a co-operation arrangement under this section unless the Minister—
“(a) has had regard to the matters specified in section 99E(2)(a) and (b) and has consulted as specified in section 99E(2)(c); and
“(b) is satisfied of the matter specified in section 99E(3).
“99F Content of co-operation arrangements
“(1) Every co-operation arrangement must—
“(a) identify the overseas regulator that it concerns; and
“(b) identify the foreign enactments in connection with which the recognised overseas regulator may seek compulsorily acquired information and investigative assistance from the Commission; and
“(c) set out how any compulsorily acquired information that is provided may be used by the overseas regulator, and how it is to be kept secure.
“(2) A co-operation arrangement may also—
“(a) provide for the reimbursement of the Commission for costs incurred in providing the information or assistance; and
“(b) include other conditions on the provision of compulsorily acquired information or investigative assistance.
“99G Procedures relating to co-operation arrangements
“(1) Every co-operation arrangement must be in writing and be signed by the Minister and the person occupying, with respect to the overseas regulator, an equivalent position to that of the Minister, or any other person that the relevant government considers appropriate.“(1) Every co-operation arrangement must be in writing and be signed by,—
“(a) in the case of a government-to-government co-operation arrangement entered into under section 99E, the Minister and the person occupying, with respect to the overseas regulator, an equivalent position to that of the Minister, or any other person that the relevant government or governing body considers appropriate:
“(b) in the case of a regulator-to-regulator co-operation arrangement entered into under section 99EA, the chairperson of the Commission and the person occupying the equivalent position in relation to the overseas regulator.
“(2)
As soon as practicable after entering into a co-operation arrangement, the Minister mustNo later than 15 working days after a co-operation arrangement is entered into,—
“(a) give a copy of the arrangement to the Commission; and
“(b) the Minister or the Commission, as appropriate, must publish a notice in the Gazette that—
“(i) states that the arrangement has been entered into; and
“(ii) identifies the overseas regulator concerned; and
“(iii) identifies the parties to the arrangement; and
“(iv) states when the arrangement comes into effect; and
“(c) the Commission must publish a copy of the co-operation arrangement on its Internet site, and must keep it there while the arrangement continues in force.
“(3) Within 15 working days of receiving the notice from the Minister, the Commission must publish a copy of the co-operation arrangement on its public Internet site, and must keep it there while the arrangement continues in force.“(4) Subsections (1)
to (3)and (2) apply with all necessary modifications to every amendment to a co-operation arrangement.“99H Providing compulsorily acquired information and investigative assistance
“(1) Following a request by a recognised overseas regulator made in accordance with a co-operation arrangement, the Commission may do either or both of the following:
“(a) provide compulsorily acquired information to the recognised overseas regulator:
“(b) provide investigative assistance to the recognised overseas regulator.
“(2) Before providing compulsorily acquired information or investigative assistance under subsection (1), the Commission must be satisfied that—
“(a) providing the information or assistance will, or is likely to, assist the recognised overseas regulator in performing its functions or exercising its powers in relation to competition law; and
“(b) the provision of the information or assistance will not be inconsistent with the co-operation arrangement; and
“(c) the provision of the information or assistance will not significantly prejudice New Zealand's international trade interests.
“(2A) If the Commission considers, after consultation with the Ministry of Foreign Affairs and Trade, that a request for compulsorily acquired information or investigative assistance may have significant trade consequences for New Zealand, the Commission must refer the matter to the Minister of Trade.
“(2B) If a request is referred to the Minister of Trade, the Commission is deemed to be satisfied for the purpose of subsection (2)(c) only if the Minister of Trade states, in writing, that he or she is satisfied that the provision of the information or assistance will not significantly prejudice New Zealand's international trade interests.
“(3) In considering whether to provide compulsorily acquired information or investigative assistance in accordance with a co-operation arrangement, the Commission must also consider—
“(a) whether complying with the request will substantially affect the Commission's ability to perform its other functions under this Act or any other enactment; and
“(b) whether the recognised overseas regulator could more conveniently obtain the information or assistance from another source; and
“(c) whether the request would, in the opinion of the Commission, be more appropriately dealt with under the Mutual Assistance in Criminal Matters Act 1992.
“99I Conditions on providing compulsorily acquired information and investigative assistance
“(1) If the Commission provides compulsorily acquired information or investigative assistance to a recognised overseas regulator, the Commission may impose conditions on such provision, including conditions relating to—
“(a) maintaining the confidentiality of information; and
“(b) the storage
,or use of, or access to, anything provided; and
“(c) the copying, returning, or disposal of copies of anything provided; and
“(d) the payment of costs incurred by the Commission in providing anything or in otherwise complying with a request for information or investigative assistance.
“(2) The Commission must not provide copies of statements made by any person in answer to a question put by or before the Commission that might tend to incriminate the person, unless the recognised overseas regulator gives a written undertaking—
“(a) that it will not use such statements as evidence—
“(i) in criminal proceedings against the person (other than in proceedings in respect of the falsity of the person's testimony); or
“(ii) in proceedings against the person for a pecuniary penalty or any equivalent proceedings; and
“(b) that, to the extent that it is within the ability of the overseas regulator to
ensure, such statements will not bedo so, it will ensure that such statements are not used by any other person, authority, or agency as evidence in proceedings referred to in paragraph (a).“99J Notice to persons affected by provision of information
“(1) If the Commission provides any compulsorily acquired information to a recognised overseas regulator, the Commission must, as soon as practicable after providing the information, notify the following people that the information has been provided:
“(a) the person from whom the information was acquired:
“(b) every person to whom the information relates.
“(2) However, the Commission need not notify a person as required by subsection (1) if—
“(a) giving notice might compromise any investigation conducted, or to be conducted, by the Commission or any overseas regulator; or
“(b) giving notice would prejudice the maintenance of the law (including the prevention, investigation, and detection of offences, and the right to a fair trial) in New Zealand or elsewhere; or
“(c) it is not practicable in the circumstances to give notice to the person.
“99K Reporting on use of co-operation arrangements
The Commission’s annual report must report on the use and operation of co-operation arrangements during the period covered by the report, and include information on—
“(a) the number and general nature of requests for information and investigative assistance received from recognised overseas regulators; and
“(b) the number and general nature of requests for information and investigative assistance that the Commission has made to recognised overseas regulators.
“99L Sharing of non-compulsorily acquired information not affected
Except to the extent that non-compulsorily acquired information is dealt with in a co-operation arrangement, the ability of the Commission to provide non-compulsorily acquired information to an overseas regulator is not affected by—
“(a) sections 99B to 99K; or
“(b) whether or not the overseas regulator is a recognised overseas regulator.
“99M Information provided by consent
Nothing in sections 99B to 99K or any co-operation arrangement prevents the Commission providing any information to an overseas regulator with the consent of the person who is the subject of the information.
“99N Part
s4and 4Ainformation not to be provided
The Commission must not provide information to an overseas regulator that the Commission has obtained under, pursuant to, or for the purposes of Part 4
or 4A, unless the information is already in the public domain.“99O Maintenance of privilege
“(1) If the Commission provides to an overseas regulator, for the purpose of assisting the overseas regulator to perform its competition law functions, a communication or information in respect of which the Commission has any privilege referred to in section 54, 56, or 57 of the Evidence Act 2006, the Commission is not to be taken as having waived its privilege in relation to that communication or information merely by providing it to the overseas regulator.
“(2) If the Commission receives from an overseas regulator, for the purpose of assisting the Commission to perform its competition law functions under this Act, a communication or information that, under the law of the country of the overseas regulator is subject to a privilege analogous to a privilege of a kind referred to in section 54, 56, or 57 of the Evidence Act 2006, that communication or information is subject to the analogous privilege in New Zealand, and the Evidence Act 2006 applies accordingly.
“(3) The Commission must not provide a communication or information that is subject to the privilege referred to in section 57 of the Evidence Act 2006 (which relates to settlement negotiation and mediation) to an overseas regulator unless every other party that has a privilege in relation to that communication or information consents to the Commission providing the communication or information to the overseas regulator.
“(4) To avoid doubt, this section applies whether or not a communication or information is provided under a co-operation arrangement.”
This subpart amends the Credit Contracts and Consumer Finance Act 2003.
Section 113 is amended by inserting the following paragraph after paragraph (e):
“(
ebea) sections 99B to 99O (assistance to overseas regulators), as if—
“(i) references in those sections to competition law were references to consumer credit law; and
“(ii) references in those sections to the Minister were references to the Minister of Consumer Affairs:”.
This subpart amends the Fair Trading Act 1986.
Section 47 is amended by adding the following subsection:
“(4) For the purpose of allowing the Commission to provide, under section 48H, compulsorily acquired information and investigative assistance to a recognised overseas regulator, every reference in this section to a contravention of this Act must be taken to include a reference to a contravention of any foreign enactment that is identified (as required by section 48F(1)(b)) in the co-operation arrangement concerning that recognised overseas regulator.”
The following sections are inserted after section 48A:
“48B Purpose of sections 48C to 48N (which relate to assistance to overseas regulators)
The purpose of sections 48C to 48N is—
“(a) to provide for when and how the Commission may provide compulsorily acquired information and investigative assistance to overseas regulators; and
“(b) to clarify other matters relating to sharing other kinds of information with overseas regulators.
“48C Definitions of terms used in sections 48B to 48N
In sections 48B to 48N, unless the context otherwise requires,—
“co-operation arrangement means an arrangement concerning the Commerce Commission and an overseas regulator that is entered into under section 48E between the Government of New Zealand and—
“(a) the government of the country in which the overseas regulator is established; or
“(b) if the overseas regulator is established by an international body, the government of that international body“co-operation arrangement means an arrangement concerning the Commission and an overseas regulator that is entered into under section 48E (a government-to-government co-operation arrangement) or section 48EA (a regulator-to-regulator co-operation arrangement) for—
“(a) the provision by the Commission of compulsorily acquired information and investigative assistance to the overseas regulator; and
“(b) the provision by the overseas regulator of information and investigative assistance to the Commission
“compulsorily acquired information means information that—
“(a) is acquired by the Commission, whether before or after this section comes into force, as a result of, or in relation to, the exercise by the Commission of any of its powers under section 47 or 47G, or any power incidental to those powers; and
“(b) is not in the public domain
“investigative assistance includes providing assistance by way of exercising any power of the Commission under, or in relation to, section 47 or 47G, and any powers incidental to those powers
“overseas regulator means an overseas body that has fair trading law functions corresponding to those of the Commission under this Act
“recognised overseas regulator means an overseas regulator that is the subject of a co-operation arrangement.
“48D Restrictions on providing compulsorily acquired information and investigative assistance
The Commission must not provide compulsorily acquired information or investigative assistance to an overseas regulator unless the information or assistance is provided—
“(a) to a recognised overseas regulator in accordance with a co-operation arrangement; and
“(b) in accordance with sections 48H to 48J.
“48E
Entering intoGovernment-to-government co-operation arrangements
“(1) The Minister may, on behalf of the Government of New Zealand, enter into a co-operation arrangement concerning an overseas regulator
forwith—
“(a) the provision by the Commission of information and investigative assistance to the overseas regulator; and
“(b) the provision by the overseas regulator of information and investigative assistance to the Commission.
“(a) the government of the country in which the overseas regulator is established; or
“(b) if the overseas regulator is established by an international body, the governing body of that international body.
“(2) Before entering into a co-operation arrangement concerning an overseas regulator, the Minister must—
“(a) have regard to the legal framework relating to the use of compulsorily acquired information in the jurisdiction of the overseas regulator; and
“(b) have regard to the potential consequences for New Zealand consumers and businesses of providing compulsorily acquired information or investigative assistance to the overseas regulator; and
“(c) consult with the Privacy Commissioner on any privacy issues arising from the proposed co-operation arrangement.
“(3) The Minister must not enter into a co-operation arrangement unless he or she is satisfied that entering into the arrangement is not inconsistent with any of New Zealand’s obligations under international agreements, conventions, or treaties.
“(4) Every co-operation arrangement must provide for the Commission and the overseas regulator to provide information and assistance to each other.“48EA Regulator-to-regulator co-operation arrangements
“(1) The Commission may, with the prior written approval of the Minister, enter into a co-operation arrangement with an overseas regulator.
“(2) The Minister may not give approval to a co-operation arrangement under this section unless the Minister—
“(a) has had regard to the matters specified in section 48E(2)(a) and (b) and has consulted as specified in section 48E(2)(c); and
“(b) is satisfied of the matter specified in section 48E(3).
“48F Content of co-operation arrangements
“(1) Every co-operation arrangement must—
“(a) identify the overseas regulator that it concerns; and
“(b) identify the foreign enactments in connection with which the recognised overseas regulator may seek compulsorily acquired information and investigative assistance from the Commission; and
“(c) set out how any compulsorily acquired information that is provided may be used by the overseas regulator, and how it is to be kept secure.
“(2) A co-operation arrangement may also—
“(a) provide for the reimbursement of the Commission for costs incurred in providing the information or assistance; and
“(b) include other conditions on the provision of compulsorily acquired information or investigative assistance.
“48G Procedures relating to co-operation arrangements
“(1) Every co-operation arrangement must be in writing and be signed by the Minister and the person occupying, with respect to the overseas regulator, an equivalent position to that of the Minister, or any other person that the relevant government considers appropriate.“(1) Every co-operation arrangement must be in writing and be signed by,—
“(a) in the case of a government-to-government co-operation arrangement entered into under section 48E, the Minister and the person occupying, with respect to the overseas regulator, an equivalent position to that of the Minister, or any other person that the relevant government or governing body considers appropriate:
“(b) in the case of a regulator-to-regulator co-operation arrangement entered into under section 48EA, the chairperson of the Commission and the person occupying the equivalent position in relation to the overseas regulator.
“(2)
As soon as practicable after entering into a co-operation arrangement, the Minister mustNo later than 15 working days after a co-operation arrangement is entered into,—
“(a) give a copy of the arrangement to the Commission; and
“(b) the Minister or the Commission, as appropriate, must publish a notice in the Gazette that—
“(i) states that the arrangement has been entered into; and
“(ii) identifies the overseas regulator concerned; and
“(iii) identifies the parties to the arrangement; and
“(iv) states when the arrangement comes into effect; and
“(c) the Commission must publish a copy of the co-operation arrangement on its Internet site, and must keep it there while the arrangement continues in force.
“(3) Within 15 working days of receiving the notice from the Minister, the Commission must publish a copy of the co-operation arrangement on its public Internet site, and must keep it there while the arrangement continues in force.“(4) Subsections (1)
to (3)and (2) apply with all necessary modifications to every amendment to a co-operation arrangement.“48H Providing compulsorily acquired information and investigative assistance
“(1) Following a request by a recognised overseas regulator made in accordance with a co-operation arrangement, the Commission may do either or both of the following:
“(a) provide compulsorily acquired information to the recognised overseas regulator:
“(b) provide investigative assistance to the recognised overseas regulator.
“(2) Before providing compulsorily acquired information or investigative assistance under subsection (1), the Commission must be satisfied that—
“(a) providing the
compulsorily acquiredinformation orinvestigativeassistance will, or is likely to, assist the recognised overseas regulator in performing its functions or exercising its powers in relation to fair trading law; and
“(b) the provision of the
compulsorily acquiredinformation orinvestigativeassistance will not be inconsistent with the co-operation arrangement; and
“(c) the provision of the information or assistance will not significantly prejudice New Zealand's international trade interests.
“(2A) If the Commission considers, after consultation with the Ministry of Foreign Affairs and Trade, that a request for compulsorily acquired information or investigative assistance may have significant trade consequences for New Zealand, the Commission must refer the matter to the Minister of Trade.
“(2B) If a request is referred to the Minister of Trade, the Commission is deemed to be satisfied for the purpose of subsection (2)(c) only if the Minister of Trade states, in writing, that he or she is satisfied that the provision of the information or assistance will not significantly prejudice New Zealand's international trade interests.
“(3) In considering whether to provide information or investigative assistance under a co-operation arrangement, the Commission must also consider—
“(a) whether complying with the request will substantially affect the Commission's ability to perform its other functions under this Act or any other enactment; and
“(b) whether the recognised overseas regulator could more conveniently obtain the information or assistance from another source; and
“(c) whether the request would, in the opinion of the Commission, be more appropriately dealt with under the Mutual Assistance in Criminal Matters Act 1992.
“48I Conditions on providing compulsorily acquired information and investigative assistance
“(1) If the Commission provides compulsorily acquired information or investigative assistance to a recognised overseas regulator, the Commission may impose conditions on such provision, including conditions relating to—
“(a) maintaining the confidentiality of information; and
“(b) the storage
,or use of, or access to, anything provided; and
“(c) the copying, returning, or disposal of copies of anything provided; and
“(d) the payment of costs incurred by the Commission in providing anything or in otherwise complying with a request for information or investigative assistance.
“(2) The Commission must not provide compulsorily acquired information that was given by a person whom the information might tend to incriminate unless the recognised overseas regulator gives a written undertaking—
“(a) that it will not use the information as evidence—
“(i) in criminal proceedings against the person (other than in proceedings in respect of the falsity of the person's testimony); or
“(ii) in proceedings against the person for a pecuniary penalty or any equivalent proceedings; and
“(b) that, to the extent that it is within the ability of the overseas regulator to
ensure, the information will not bedo so, it will ensure that the information is not used by any other person, authority, or agency as evidence in proceedings referred to in paragraph (a).“48J Notice to persons affected by provision of information
“(1) If the Commission provides any compulsorily acquired information to a recognised overseas regulator, the Commission must, as soon as practicable after providing the information, notify the following people that the information has been provided:
“(a) the person from whom the information was acquired:
“(b) every person to whom the information relates.
“(2) However, the Commission need not notify a person as required by subsection (1) if—
“(a) giving notice might compromise any investigation conducted, or to be conducted, by the Commission or any overseas regulator; or
“(b) giving notice would prejudice the maintenance of the law (including the prevention, investigation, and detection of offences, and the right to a fair trial) in New Zealand or elsewhere; or
“(c) it is not practicable in the circumstances to give notice to the person.
“48K Reporting on use of co-operation arrangements
The Commission’s annual report must report on the use and operation of co-operation arrangements during the period covered by the report, and include information on—
“(a) the number and general nature of requests for information and investigative assistance received from recognised overseas regulators; and
“(b) the number and general nature of requests for information and investigative assistance that the Commission has made to recognised overseas regulators.
“48L Sharing of non-compulsorily acquired information not affected
Except to the extent that non-compulsorily acquired information is dealt with in a co-operation arrangement, the ability of the Commission to provide non-compulsorily acquired information to an overseas regulator is not affected by—
“(a) sections 48B to 48K; or
“(b) whether or not the overseas regulator is a recognised overseas regulator.
“48M Information provided by consent
Nothing in sections 48B to 48K or any co-operation arrangement prevents the Commission providing any information to an overseas regulator with the consent of the person who is the subject of the information.
“48N Maintenance of privilege
“(1) If the Commission provides to an overseas regulator, for the purpose of assisting the overseas regulator to perform its fair trading law functions, a communication or information in respect of which the Commission has any privilege referred to in section 54, 56, or 57 of the Evidence Act 2006, the Commission is not to be taken as having waived its privilege in relation to that communication or information merely by providing it to the overseas regulator.
“(2) If the Commission receives from an overseas regulator, for the purpose of assisting the Commission to perform its fair trading law functions under this Act, a communication or information that, under the law of the country of the overseas regulator is subject to a privilege analogous to a privilege of a kind referred to in section 54, 56, or 57 of the Evidence Act 2006, that communication or information is subject to the analogous privilege in New Zealand, and the Evidence Act 2006 applies accordingly.
“(3) The Commission must not provide a communication or information that is subject to the privilege referred to in section 57 of the Evidence Act 2006 (which relates to settlement negotiation and mediation) to an overseas regulator unless every other party that has a privilege in relation to that communication or information consents to the Commission providing the communication or information to the overseas regulator.
“(4) To avoid doubt, this section applies whether or not a communication or information is provided under a co-operation arrangement.”
This Part amends the Commerce Act 1986.
Section 108 is amended by inserting the following paragraphs after paragraph (cb):
“(cc) requiring the Commission to refund, within a prescribed time, all or any part of a fee paid in respect of an application under section 58
or 70B(1), or in respect of a notice under section 66(1) or 67(1), that is more than the cost to the Commission of determining that application or notice:
“(cd) prescribing a class or classes of persons who are exempt from the requirement to pay any fee prescribed for an application under section 58
or 70B(1)or for a notice under section 66(1) or 67(1).:”.
Legislative history | |
|---|---|
| 9 September 2008 | Introduction (Bill 293–1) |
| 25 May 2010 | First reading and referral to Commerce Committee |
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Commentary
Recommendation
The Commerce Committee has examined the Commerce Commission (International Co-operation, and Fees) Bill and recommends that it be passed with the amendments shown.
Introduction
This bill seeks to authorise the Commerce Commission (the Commission) to assist and be assisted by equivalent overseas regulators. Its primary objective is to facilitate increased co-operation between the Commission and equivalent overseas regulators, particularly the Australian Competition and Consumer Commission.
The bill would amend the Commerce Act 1986, the Credit Contracts and Consumer Finance Act 2003, and the Fair Trading Act 1986. It would also amend the regulation-making powers in the Commerce Act 1986 allowing the Commission to grant refunds and fee exemptions.
Our commentary covers the major amendments we recommend to the bill.
Purpose clause
We recommend deleting clause 3, which describes the purpose of amending the three Acts. Removing this clause would facilitate splitting this bill into three separate amendment bills.
Co-operation with overseas regulators
Clause 6 of the bill as introduced would insert new sections 99B to 99O into the Commerce Act 1986. We recommend amendments to several of these new sections, as detailed under the subheadings below.
Clause 11 of the bill as introduced would insert corresponding new sections 48B to 48N into the Fair Trading Act 1986. We recommend equivalent amendments to the clause, to align the provisions of the two Acts.
Existing information
We recommend amending the definition of “compulsorily acquired information” in new section 99C to make it clear that information that had already been so acquired when the legislation came into force would be included under the definition. We are concerned that the definition in the bill as introduced could lead to existing information being excluded by the presumption against retrospectivity.
Types of co-operation arrangements
We recommend amendments to sections 99C, 99E, and 99G, and inserting new section 99EA, to allow either government-to-government co-operation arrangements or regulator-to-regulator arrangements, subject to ministerial approval. We believe this would provide the flexibility required to enter into a co-operation arrangement with any appropriate country, while maintaining appropriate safeguards.
The bill as introduced provides that all co-operation arrangements would be between one Government and another (that is, between the Government of New Zealand on the one hand, and either another country’s Government or the governing body of an international organisation). We understand that establishing a government-to-government co-operation arrangement with Australia might become unduly complicated, as it would involve not only the federal Government but also all the state Governments. We also understand that similar legislation in some other countries allows only government-to-government arrangements.
Mutuality of information exchange and security of information
We note concern that New Zealand might share information with another country or regulator and not receive information in return, or that information might not be secure once it left New Zealand. We are satisfied that no amendments to the bill are required to address this concern, as we believe that New Zealand would not enter into a co-operation arrangement without reasonable confidence in the other party’s provision for these matters.
Providing compulsorily acquired information and investigative assistance
We recommend amending new section 99H by inserting new subparagraph (2)(c) and new paragraphs (2A) and (2B) to address situations where a request for assistance might raise significant international trade concerns. This addition would provide for the Commission, if it was concerned that a request for assistance might have significant international trade implications, to consult the Minister of Trade, after consultation with the Ministry of Foreign Affairs and Trade. The Commission could then rely on a statement by the Minister of Trade as to whether providing the information or assistance would significantly prejudice New Zealand’s international trade interests. Before providing such information, the Commission would have to be satisfied that the information would not significantly prejudice New Zealand’s international trade interests.
Conditions on providing compulsorily acquired information and investigative assistance
We recommend amending new section 99I(2) so as to maintain the privilege against self-incrimination to the extent that it is already provided for in the Commerce Act. The bill as introduced might have provided protections in respect of all statements, not just self-incriminating ones. The change to this section would align it with the equivalent new section proposed for the Fair Trading Act, which would protect only self-incriminating information.
Telecommunications law
We have become aware that this bill does not extend to information gathered under the Telecommunications Act 2001, unlike equivalent legislation in other countries, including Australia. The bill as introduced is focused on competition and consumer law. After its introduction, the possibility of including telecommunications law was raised by the Commission with the Minister of Communications and Information Technology, and the matter passed on to the Minister of Commerce. We understand that extensive consultation and research was then undertaken, and a Regulatory Impact Statement confirmed that the benefit of including the Telecommunications Act in the bill outweighed the cost; but since the bill as introduced did not seek to amend the Telecommunications Act, doing so would be outside the scope of the bill.
Fee exemption
We considered removing the regulation-making power to prescribe a class or classes of persons who would be exempt from the requirement to pay any fee. This provision was targeted to the small to medium-sized enterprises sector and we decided that it was important to retain it.
Appendix
Committee process
The Commerce Commission (International Co-operation, and Fees) Bill was referred to the committee on 25 May 2010. The closing date for submissions was 30 June 2010. We received and considered seven submissions from interested groups and individuals. We heard two submissions.
We received advice from the Ministry of Consumer Affairs and the Ministry of Economic Development.
Committee membership
Hon Lianne Dalziel (Chairperson)
John Boscawen (to 8 September 2010)
Hilary Calvert (from 27 October 2010)
Charles Chauvel (to 21 July 2010)
David Clendon
Clare Curran
Hon Sir Roger Douglas (from 8 September to 27 October 2010)
Te Ururoa Flavell
Melissa Lee
Peseta Sam Lotu-Iiga
Hon Nanaia Mahuta (from 21 July 2010)
Katrina Shanks
Jonathan Young