Commerce Act 1986

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Version as at 31 August 2023

Commerce Act 1986

Public Act		1986 No 5
Date of assent		28 April 1986
Commencement		see section 1(2)

Note

The Parliamentary Counsel Office has made editorial and format changes to this version using the powers under subpart 2 of Part 3 of the Legislation Act 2019.

Note 4 at the end of this version provides a list of the amendments included in it.

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

	Title [Repealed]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
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 Competition and Consumer Act 2010
6C	Transitional, savings, and related provisions
6C	Application of Evidence Amendment Act 1980 [Repealed]
7	Relationship with law on restraint of trade
	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14	Disclosure of financial interests [Repealed]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18	Officers and employees [Repealed]
18A	Personnel policy [Repealed]
18B	Equal employment opportunities [Repealed]
18C	Choice of procedure [Repealed]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19	Money to be appropriated by Parliament for purposes of this Act [Repealed]
20	Funds of Commission [Repealed]
21	Bank accounts [Repealed]
22	Crown entity [Repealed]
23	Investment of money [Repealed]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
	Contracts, arrangements, understandings, or covenants substantially lessening competition
27	Contracts, arrangements, or understandings substantially lessening competition prohibited
28	Covenants substantially lessening competition prohibited
28A	Certain grocery-related covenants are treated as prohibited and unenforceable
28B	Process for voluntary removal of grocery-related covenant from register of land
28C	Process for designations for purpose of section 28A
28D	Commission may require designated grocery retailer to supply information about contract, etc, to which section 28A may apply
29	Contracts, arrangements, or understandings containing exclusionary provisions prohibited [Repealed]
	Cartel provisions
30	Contracts, arrangements, understandings, or covenants containing cartel provisions prohibited
30A	Meaning of cartel provision and related terms
30B	Additional interpretation relating to cartel provisions
30C	Cartel provisions generally unenforceable
31	Exception for collaborative activity
32	Exception for vertical supply contracts
33	Exception for joint buying and promotion agreements
34	Certain provisions of covenants with respect to prices deemed to substantially lessen competition [Repealed]
	Practices substantially lessening competition conditional upon authorisation [Repealed]
35	Contracts or covenants subject to authorisation not prohibited under certain conditions [Repealed]
	Misuse of market power
36	Misuse of market power
36A	Misuse 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
	Exceptions to Part 2
43	Statutory exceptions
44	Other exceptions
44A	Exceptions in relation to international liner shipping services
44B	Further exception in relation to international liner shipping services (price fixing in relation to space on ship)
45	Exceptions in relation to intellectual property rights [Repealed]
46	Saving in respect of business acquisitions
	Part 3 Business acquisitions
47	Certain acquisitions prohibited
47A	Declaration relating to acquisition by overseas person
47B	Orders against New Zealand bodies corporate following declaration under section 47A
47C	Application by Commission for declaration or order
47D	Revocation and variation of declarations and orders
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 3A Competition studies
48	Interpretation
49	Functions of Commission under this Part
50	Commission may carry out competition study
51	Minister may require Commission to carry out competition study
51A	Competition study terms of reference
51B	Preparation of competition report
51C	Consultation on draft competition report
51D	Publication and status of competition report
51E	Minister must respond to competition report
	Part 4 Regulated goods or services
	Subpart 1—Preliminary provisions
52	Overview of Part
52A	Purpose of Part
52B	Outline of Part
52C	Interpretation
52D	Meaning and application of claw-back
	Subpart 2—Regulating 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 3—Input 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	Status of input methodologies, amendments, and revocations
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 4—Information 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 5—Negotiate/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 6—Default/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 7—Individual price-quality regulation
53ZC	Price-quality path for individual businesses
	Subpart 8—Miscellaneous 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 9—Electricity 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 10—Gas 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 11—Airport services
	Overview and interpretation
56	Overview of subpart
56A	Interpretation
	Specified airport services regulated under this Part
56B	Specified airport services declared to be regulated
56C	Specified airport services subject to information disclosure regulation
56D	Specified airport services subject to additional regulation if imposed by Order in Council
	Duty to supply information to Secretary
56E	Duty to supply information to Secretary
	Commission inquiry into regulation of specified airport services
56F	How inquiry triggered
56G	Commission inquiry
56H	Commission’s recommendations following inquiry
	Order in Council imposing additional type of regulation
56I	Minister must consider Commission’s recommendation
56J	Minister’s decision and recommendation
56K	Order in Council imposing additional type of regulation
56L	Commission determination about how regulation applies
	Declaring services to be specified airport services
56M	Order in Council declaring specified airport services
	Subpart 2 not limited
56N	Subpart 2 not limited
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 1—Controlled 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 2—Transpower’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 3—Information 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 4—Asset valuations [Repealed]
	Recalibration of asset values of large electricity line owners [Repealed]
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 [Repealed]
57ZD	Review of valuation methodologies [Repealed]
57ZE	Process when carrying out review of valuation methodologies [Repealed]
	Subpart 5—General 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
65AAA	Commission may grant interim authorisation
65AA	Applications during epidemic period [Repealed]
65AB	Modifications in relation to application under section 65AA [Repealed]
65AC	Modifications in relation to certain applications made during epidemic period [Repealed]
65AD	Provisional authorisations for certain applications made during epidemic period [Repealed]
65AE	Repeal of sections 65AA to 65AE [Repealed]
65A	Commission may give clearances relating to cartel provisions
65B	Effect of clearance under section 65A
65C	Procedures relating to clearances
65D	Revocation of clearances
	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
	Power to accept undertakings
74AA	Commission may accept undertakings [Repealed]
74A	Commission may accept undertakings
74B	Matters included in undertakings
74C	Enforcement of undertakings
74D	Pecuniary penalties for contravention of cease and desist order [Repealed]
	Jurisdiction of courts
75	Jurisdiction of High Court
76	Jurisdiction of District Court
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 relating to restrictive trade practices
80A	Restriction on indemnities relating to contraventions of section 30
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
82B	Offence relating to cartel prohibition
82C	Defence relating to exceptions to cartel prohibition
82D	Disclosure by defendant in cartel prosecution
82E	Consequences of failure to disclose under section 82D
	Business acquisitions
83	Pecuniary penalties relating to business acquisitions
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 section 47
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 employees, agents, and others
	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
	Powers relating to evidence
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
	Power to share information and documents with public service agencies, statutory entities, Reserve Bank, and New Zealand Police
99AA	Sharing of information and documents with public service agencies, statutory entities, Reserve Bank, and New Zealand Police
99AB	Commission may impose conditions on provision of information or documents
	Assistance to overseas regulators
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
	Offences, regulations, and administrative provisions
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	Cartel prosecutors panel
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 1AA Transitional, savings, and related provisions
	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
	Notes

Title [Repealed]

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

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