Commerce Act 1986

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Reprint as at 30 May 2017

Coat of Arms of New Zealand

Commerce Act 1986

Public Act
 
1986 No 5
Date of assent
 
28 April 1986
Commencement
 
see 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Title [Repealed]
1Short Title and commencement
1APurpose
2Interpretation
3Certain terms defined in relation to competition
3ACommission to consider efficiency
4Application of Act to conduct outside New Zealand
5Application of Act to the Crown
6Application of Act to Crown corporations
6ASpecial provisions relating to application of Act to the Crown in right of Australia and to Australian Crown corporations
6BCrown and Crown corporations not immune from jurisdiction in relation to certain provisions of Trade Practices Act 1974
6CApplication of Evidence Amendment Act 1980 [Repealed]
7Law relating to restraint of trade and breaches of confidence not affected
Part 1
The Commerce Commission
8Establishment of Commission
8AApplication of Crown Entities Act 2004
9Membership of Commission
10Terms and conditions of appointment
11Associate members
12Chairperson and deputy chairperson
13Termination of appointment of members
14Disclosure of financial interests [Repealed]
15Meetings of Commission
16Chairperson may direct Commission to sit in Divisions
17Assent to determination
18Officers and employees [Repealed]
18APersonnel policy [Repealed]
18BEqual employment opportunities [Repealed]
18CChoice of procedure [Repealed]
18DSuperannuation and retiring allowances
19Money to be appropriated by Parliament for purposes of this Act [Repealed]
20Funds of Commission [Repealed]
21Bank accounts [Repealed]
22Crown entity [Repealed]
23Investment of money [Repealed]
24Exemption from income tax
25Functions of Commission in relation to dissemination of information
26Commission to have regard to economic policies of Government
Part 2
Restrictive trade practices
Practices substantially lessening competition
27Contracts, arrangements, or understandings substantially lessening competition prohibited
28Covenants substantially lessening competition prohibited
29Contracts, arrangements, or understandings containing exclusionary provisions prohibited
Price fixing
30Certain provisions of contracts, etc, with respect to prices deemed to substantially lessen competition
31Joint venture pricing exempt from application of section 30
32Certain recommendations as to prices for goods and services exempt from application of section 30
33Joint buying and promotion arrangements exempt from application of section 30
34Certain provisions of covenants with respect to prices deemed to substantially lessen competition
Practices substantially lessening competition conditional upon authorisation
35Contracts or covenants subject to authorisation not prohibited under certain conditions [Repealed]
Taking advantage of market power
36Taking advantage of market power
36ATaking advantage of market power in trans-Tasman markets
36BPurposes may be inferred
Resale price maintenance
37Resale price maintenance by suppliers prohibited
38Resale price maintenance by others prohibited
39Recommended prices
40Withholding the supply of goods
41Preventing the supply of goods
42Special evidentiary provisions in respect of certain resale price maintenance practices
43Statutory exceptions
44Other exceptions
45Exceptions in relation to intellectual property rights
46Saving in respect of business acquisitions
Part 3
Business acquisitions
47Certain acquisitions prohibited
48Bare transfer of market dominance excluded [Repealed]
49Application to building societies [Repealed]
50Certain merger or takeover proposals require clearance or authorisation [Repealed]
51Contracts subject to condition of clearance or authorisation [Repealed]
Part 4
Regulated goods or services
Subpart 1—Preliminary provisions
52Overview of Part
52APurpose of Part
52BOutline of Part
52CInterpretation
52DMeaning and application of claw-back
Subpart 2—Regulating particular goods or services
52EOverview of process if regulation imposed on goods or services
52FEffect of goods or services being subject to regulation
52GWhen goods or services may be regulated
Commission inquiry
52HHow inquiry triggered
52ICommission inquiry into particular goods or services
52JProcess of inquiry
52KCommission’s recommendation following inquiry
Order in Council imposing regulation
52LMinister’s consideration
52MMinister’s decision and recommendation
52NOrder in Council imposing regulation
52ORevocation or amendment of Order in Council
Commission determination about how regulation applies
52PDeterminations by Commission under this section
52QAmendment of section 52P determination
Subpart 3—Input methodologies
52RPurpose of input methodologies
52SHow published input methodologies apply
52TMatters covered by input methodologies
52UWhen input methodologies must be determined
52VCommission process for determining input methodologies
52WPublication of input methodologies
52XAmendment of input methodologies
52YReview and date of publication of input methodologies
Appeals against input methodology determinations
52ZAppeals against input methodology determinations
52ZAProcess for appeals
53Input methodology applies pending outcome of appeal
Subpart 4—Information disclosure regulation
53APurpose of information disclosure regulation
53BEffect of being subject to information disclosure regulation
53CSection 52P determination to set out information disclosure requirements
53DConsolidated information may also be required
53ECharge for providing copies to public
53FLimited exception to obligation to apply input methodologies
Subpart 5—Negotiate/arbitrate regulation
53GPurpose of negotiate/arbitrate regulation
53HOverview of negotiate/arbitrate regulation
53ISection 52P determination to set out requirements for application of negotiate/arbitrate regulation
53JCompulsory arbitration
Subpart 6—Default/customised price-quality regulation
53KPurpose of default/customised price-quality regulation
53LOverview of default/customised price-quality regulation
53MContent and timing of price-quality paths
53NMonitoring compliance with price-quality paths
Default price-quality path
53OSection 52P determination to set out requirements of default price-quality paths
53PResetting starting prices, rates of change, and quality standards
Customised price-quality paths
53QSupplier may propose customised price-quality path
53REffect of making proposal for customised price-quality path
53SPreliminary assessment of proposal
53TProcess and timing for assessing proposal
53UExtension of time frames
53VDetermination setting customised price-quality path
53WTerm of customised price-quality paths
53XWhat happens when customised price-quality path ends
53YCommission’s costs relating to assessing, setting, and reconsidering customised price-quality path
53ZPrioritisation by Commission
53ZAWhat happens if Commission does not make decision within time frame
What happens to price-quality paths if input methodologies change
53ZBWhat happens to price-quality paths if input methodologies change
Subpart 7—Individual price-quality regulation
53ZCPrice-quality path for individual businesses
Subpart 8—Miscellaneous provisions
53ZDPowers of Commission under this Part
53ZELevies
53ZFMaterial may be incorporated by reference
53ZGPower to exempt disclosure of commercially sensitive information
Subpart 9—Electricity lines services
Application, overview, and interpretation
54Overview of how subpart applies
54AOverview of when subpart applies
54BInterpretation for subpart
54CMeaning of electricity lines services
54DDefinition of consumer-owned
Imposition of regulation under this Part
54EElectricity lines services declared to be regulated
54FAll electricity lines services are subject to information disclosure regulation
54GCertain electricity lines services are also subject to default/customised price-quality regulation
54HHow exempt status can be lost and default/customised price-quality regulation can be applied to consumer-owned suppliers
54ICommission must make section 52P determination specifying how subpart applies
54JSection 52P determinations setting out default price-quality paths applying from 1 April 2009
54KSection 52P determinations setting out default price-quality paths applying from 1 April 2010
Transitional arrangements
54LAdministrative settlements made before 1 April 2009 (other than with Transpower)
54MAdministrative settlements with Transpower made before 1 April 2009
54NBreaches of thresholds and default price-quality paths before 1 April 2010
54OBreaches of control imposed, or administrative settlements entered into, after 1 April 2009
54PProposals for customised price-quality paths
Energy efficiency
54QEnergy efficiency
Transpower grid upgrade plans and capital expenditure proposals
54RApproval of Transpower’s grid upgrade plans
54SCommission to prepare input methodology for capital expenditure proposals
54TProcedure before jurisdiction order can be made [Repealed]
54ULevies during transition in jurisdiction [Repealed]
Interface with Electricity Industry Act 2010
54VImpact of certain decisions made under Electricity Industry Act 2010
Savings provisions
54WSavings provision relating to existing information disclosure requirements
54XSavings provision for existing levy regulations for electricity lines businesses
Subpart 10—Gas pipeline services
Overview and interpretation
55Overview of subpart
55AMeaning of gas pipeline services
Imposition of regulation under this Part
55BGas pipeline services declared to be regulated
55CAll gas pipeline services are subject to information disclosure regulation
55DAll gas pipeline services are subject to price-quality regulation
55ECommission must make section 52P determination specifying how subpart applies
55FSection 52P determinations setting out first default price-quality paths
Services controlled by virtue of Commerce (Control of Natural Gas Services) Order 2005
55GExisting order, authorisations, and undertakings continue to apply until 1 July 2012 (or earlier expiry)
55HHow price-quality regulation under this Part applies after 1 July 2012 (or earlier expiry)
Interface with Gas Act 1992
55IImpact of certain decisions made under Gas Act 1992
Savings provisions
55JSavings provision until Commission publishes information disclosure requirements
55KSavings provision for existing levy regulations for services controlled under Commerce (Control of Natural Gas Services) Order 2005
Subpart 11—Airport services
Overview and interpretation
56Overview of subpart
56AMeaning of specified airport services
Imposition of regulation under this Part
56BSpecified airport services declared to be regulated
56CSpecified airport services are subject to information disclosure regulation
56DDuty to also disclose to Secretary of Transport
56ECommission must make determination specifying how subpart applies
How information disclosure regulation applies
56FTransitional provision until Commission publishes information disclosure requirements
56GTransitional provision requiring review after new prices set
57Commission process [Repealed]
57ATechnical provisions relating to declaration of control [Repealed]
57BRecords to be kept for control purposes [Repealed]
57COther Acts relating to price control not affected [Repealed]
57CAImpact of certain decisions made under Gas Act 1992 [Repealed]
Part 4A
Provisions applicable to electricity industry
[Repealed]
57DInterpretation [Repealed]
57DAAMeaning of electricity lines business [Repealed]
57DAABMeaning of electricity supply business [Repealed]
57DABody that exercises jurisdiction under this Part [Repealed]
57DBTransfer of jurisdiction in respect of Transpower [Repealed]
57DCTransfer of jurisdiction relating to other large electricity lines businesses [Repealed]
57DDProcedure before jurisdiction order can be made [Repealed]
57DELevies during transition in jurisdiction [Repealed]
57DFMinisterial powers [Repealed]
Subpart 1—Controlled goods or services
[Repealed]
57EPurpose [Repealed]
57FCommission, not Minister, may declare that goods or services supplied by large electricity lines businesses are controlled [Repealed]
57GThresholds for declaration of control [Repealed]
57GAIncorporation by reference of material in thresholds [Repealed]
57GBEffect of amendments to, or replacement of, material incorporated by reference in thresholds [Repealed]
57GCAmendments to, or replacement of, material incorporated by reference to be of same general character as original material [Repealed]
57GDProof of material incorporated by reference [Repealed]
57GEEffect of expiry of material incorporated by reference [Repealed]
57GFRequirement to consult [Repealed]
57GGAccess to material incorporated by reference [Repealed]
57HProcess for making decisions on declaration of control [Repealed]
57IProcess before declaration made [Repealed]
57JEffect of declaration of control [Repealed]
57KPriorities [Repealed]
57LMaximum of 5 years for duration of declaration [Repealed]
57MAuthorisations and undertakings [Repealed]
57MAImpact of certain decisions made under Electricity Act 1992 [Repealed]
57NCommission may lift control [Repealed]
Subpart 2—Transpower’s pricing methodology
[Repealed]
57OCommission may be required to authorise Transpower’s pricing methodology [Repealed]
57PAuthorisations in respect of Transpower’s pricing methodology [Repealed]
57QAuthorisations and undertakings [Repealed]
57REnforcement of authorisations [Repealed]
57SRevocation of authorisations [Repealed]
Subpart 3—Information disclosure
[Repealed]
57TInformation disclosure [Repealed]
57UInformation to be supplied to Commerce Commission [Repealed]
57VCommerce Commission to publish summaries [Repealed]
57WReasonable charge may be imposed for providing copies of statements [Repealed]
Subpart 4—Asset valuations
[Repealed]
Recalibration of asset values of large electricity line owners
57XPurpose of recalibrations [Repealed]
57YInterpretation [Repealed]
57ZLarge electricity line owners must supply valuation to Commerce Commission [Repealed]
57ZAComprehensive audit of asset values of large electricity line owners [Repealed]
57ZBProcedure after audit of asset values carried out [Repealed]
57ZCOutcome of audit of asset values [Repealed]
Review of valuation methodologies
57ZDReview of valuation methodologies [Repealed]
57ZEProcess when carrying out review of valuation methodologies [Repealed]
Subpart 5—General provisions
[Repealed]
57ZFPowers of Commission [Repealed]
57ZGPowers of entry and inspection [Repealed]
57ZHAuthorised persons to prove identity [Repealed]
57ZIOffence to obstruct authorised persons [Repealed]
57ZJOther offences [Repealed]
57ZKLevy of electricity lines businesses [Repealed]
Part 5
Authorisations and clearances
Restrictive trade practices
58Commission may grant authorisation for restrictive trade practices
58AEffect of authorisation
58BAdditional provisions relating to authorisations
59Contracts or covenants subject to authorisation not prohibited under certain conditions
59AWhen Commission may grant authorisation
59BContraventions not prevented by granting of authorisation under section 59 or section 59A
60Procedure for applications for authorisation of restrictive trade practices
61Determination of applications for authorisation of restrictive trade practices
62Commission to prepare draft determination in relation to restrictive trade practices
63Commission may grant provisional authorisation [Repealed]
64Procedure at conference
65Commission may vary or revoke authorisations
Business acquisitions
66Commission may give clearances for business acquisitions
67Commission may grant authorisations for business acquisitions
68Provisions applying to applications for clearances and authorisations for business acquisitions
69Effect of clearance or authorisation
69ACommission may accept undertakings
69ABAuthorisation or clearance void if undertaking contravened
69ACVariation of undertaking
69BConferences in relation to business acquisitions
Authorisations in respect of controlled goods or services
[Repealed]
70Authorisations in respect of prices, revenues, and quality standards [Repealed]
70AConsiderations to be observed by Commission [Repealed]
70BProcedure for making authorisations [Repealed]
70CRemedies and penalties if overcharging or quality standards breached [Repealed]
70DTerms of authorisations [Repealed]
70EInvestigations and audits [Repealed]
70FRevocation and amendment of authorisations [Repealed]
71Provisional authorisations [Repealed]
72Alternative undertakings [Repealed]
73Conferences in relation to authorisations about controlled goods or services [Repealed]
74Levies [Repealed]
Part 6
Enforcement, remedies, and appeals
Cease and desist orders
74AACease and desist Commissioners
74ACommissioner may make cease and desist orders
74BInvestigation, notice, and opportunity to be heard
74CProcedure at cease and desist hearing
74DPecuniary penalties for contravention of cease and desist order
Jurisdiction of courts
75Jurisdiction of High Court
76Jurisdiction of District Courts
77Additional lay members of High Court for purposes of appellate jurisdiction in respect of Commission determinations
78Lay members of High Court in certain cases
79Evidence not otherwise admissible
Proceedings for pecuniary penalties
79AProceedings for pecuniary penalties
79BRelationship between pecuniary penalties and criminal liability
Restrictive trade practices
80Pecuniary penalties
80ABody corporate not to indemnify certain persons in respect of pecuniary penalties
80BPecuniary penalties for contravention of section 80A
80CCourt may order certain persons to be excluded from management of body corporate
80DApplication for order under section 80C
80EOffence to act in contravention of order made under section 80C
81Injunctions may be granted by court for contravention of Part 2
82Actions for damages for contravention of Part 2
82AExemplary damages for contravention of Part 2
Business acquisitions
83Pecuniary penalties
84Injunctions may be granted by court for contravention of Part 3 or undertaking
84AActions for damages for contravention of Part 3
85Court may order divestiture of assets or shares in respect of contravention of Part 3
85APecuniary penalties for contravention of undertaking
85BCourt may order divestiture of assets or shares in respect of contravention of undertaking
85CMatters court must not take into account under sections 85A and 85B
Regulated goods or services
86Pecuniary penalty for contravening information disclosure requirement
86AOrder requiring information disclosure requirement to be complied with
86BOffences relating to information disclosure regulation
86COrders where negotiate/arbitrate regulation applies
87Pecuniary penalty for contravening price-quality requirements
87ACompensation for contravention of price-quality requirement
87BOffence relating to price-quality regulation
87CInjunction and other orders relating to price-quality regulation
Injunctions generally
88General provisions relating to granting of injunctions
88AWhen undertaking as to damages not required by Commission
89Other orders
90Conduct by servants or agents
Appeals from determinations of Commission
91Appeals in relation to determinations by Commission
92Persons entitled to appeal
93Determination of appeals
94Court may refer appeals back for reconsideration
95Provisions pending determination of appeal
96Court may order proceedings to be heard in private
97Appeal to Court of Appeal in certain cases
Part 7
Miscellaneous provisions
98Commission may require person to supply information or documents or give evidence
98APower to search
98BPowers conferred by warrant [Repealed]
98CWarrant to be produced [Repealed]
98DOther duties of person who executes a warrant [Repealed]
98EDuty to assist [Repealed]
98FPower to inspect and take copies of documents, etc [Repealed]
98GCommission may exercise powers notwithstanding other proceedings
98HSupply of information and documents in relation to section 36A
99Powers of Commission to take evidence
99ACommission may receive information and documents on behalf of Australian Competition and Consumer Commission
99BPurpose of sections 99C to 99P (which relate to assistance to overseas regulators)
99CDefinitions of terms used in sections 99B to 99P
99DRestrictions on providing compulsorily acquired information and investigative assistance
99EGovernment-to-government co-operation arrangements
99FRegulator-to-regulator co-operation arrangements
99GContent of co-operation arrangements
99HProcedures relating to co-operation arrangements
99IProviding compulsorily acquired information and investigative assistance
99JConditions on providing compulsorily acquired information and investigative assistance
99KNotice to persons affected by provision of information
99LReporting on use of co-operation arrangements
99MSharing of non-compulsorily acquired information not affected
99NInformation provided by consent
99OPart 4 information not to be provided
99PMaintenance of privilege
100Powers of Commission to prohibit disclosure of information, documents, and evidence
100ACommission may state case for opinion of High Court
101Notices
102Service of notices
103Offences
104Determinations of Commission
105Restriction on delegation
106Proceedings privileged
106AJudicial notice
107Annual report [Repealed]
108Regulations
109Commission may prescribe forms
110Repeals, revocations, savings, and consequential amendments
111Transitional provisions in respect of certain contracts, arrangements, or understandings
112Transitional provisions in respect of goods and services subject to price control under Commerce Act 1975 [Repealed]
113Transitional provisions in respect of goods and services subject to price restraint under regulations made under Commerce Act 1975 [Repealed]
114Transitional provisions in respect of milk pricing [Repealed]
115Savings in respect of certain provisions of Commerce Act 1975 [Repealed]
116Winding up of Commerce Commission established under Commerce Act 1975 [Repealed]
117Members of Commerce Commission established under Commerce Act 1975 deemed to be members of Commission [Repealed]
118Lay 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).