There is hereby established a commission to be called the Commerce Commission.

Except as expressly provided otherwise in this or any other Act, the Commission must act independently in performing its statutory functions and duties, and exercising its statutory powers, under—

The Commission is a Crown entity for the purposes of section 7 of the Crown Entities Act 2004.

The Crown Entities Act 2004 applies to the Commission except to the extent that this Act expressly provides otherwise.

Members of the Commission are the board for the purposes of the Crown Entities Act 2004.

The Commission must have no less than 4, and no more than 6, members appointed in accordance with this section, and may also have associate members appointed under section 11(1).

No less than 3, and no more than 5, of the members, of whom at least 1 must be a barrister and solicitor of at least 5 years’ standing, must be appointed by the Governor-General in accordance with section 28(1)(b) of the Crown Entities Act 2004.

One of the members must be appointed by the Governor-General as Telecommunications Commissioner under section 9 of the Telecommunications Act 2001.

The Minister must not recommend a person for appointment as a member under subsection (2) unless,—

Subsections (2) and (4) do not limit section 29 of the Crown Entities Act 2004.

For the purpose of providing a superannuation fund or retiring allowance for members of the Commission, sums by way of subsidy or contribution may from time to time be paid into any retirement scheme (within the meaning of section 6(1) of the Financial Markets Conduct Act 2013).

The Minister may from time to time appoint any person to be an associate member of the Commission.

Subsection (1) applies despite section 28(1)(b) of the Crown Entities Act 2004.

An associate member shall be appointed only in relation to a matter or a class of matters to be specified in that member’s notice of appointment, and for such period, not exceeding 5 years, as is specified in that notice.

Subject to subsection (4), an associate member shall be deemed to be a member of the Commission for the purposes of the performance or exercise of any function, duty, or power of a member of the Commission under this Act or any other Act; and except where this section or the context otherwise requires, a reference in this Act or in any other Act to a member of the Commission must be construed as including a reference to an associate member.

An associate member may attend and vote only at a meeting of the Commission relating to the matter or class of matters specified in that member’s notice of appointment (including a meeting relating to matters incidental to the matter or class of matters so specified).

An associate member may only be appointed in relation to a matter or class of matters arising under an Act under which the Commission is required to act independently under section 8(2).

An associate member may not be appointed as chairperson, deputy chairperson, or a temporary deputy chairperson under clause 5 of Schedule 5 of the Crown Entities Act 2004.

One member appointed under section 9(2) must be appointed by the Governor-General, on the recommendation of the responsible Minister, as chairperson and another must be appointed as deputy chairperson.

The chairperson and deputy chairperson may only be removed from office as chairperson or deputy chairperson for just cause.

In other respects, clauses 1(2) and (3) and 4(2) and (3) of Schedule 5 of the Crown Entities Act 2004 apply to the appointment and removal of the chairperson and deputy chairperson of the Commission.

The Governor-General may remove any member of the Commission appointed by the Governor-General from office under section 39 of the Crown Entities Act 2004.

The Minister may remove any associate member from office on the same grounds and in the same manner as the Governor-General may remove a member under section 39 of the Crown Entities Act 2004.

Subsection (2) applies despite section 39(1) of the Crown Entities Act 2004.

Notwithstanding that the term of office of a member has expired or that a member has resigned that office, that person shall be deemed to continue as a member for the purpose of—

Subsection (4) applies despite sections 32(3) and 45 of the Crown Entities Act 2004.

At any meeting of the Commission the quorum shall be 3 members.

Subsection (4) applies despite clause 9(1) and (2) of Schedule 5 of the Crown Entities Act 2004.

Subject to the provisions of this Act, the chairperson may give directions regarding the procedure to be followed at or in connection with any meeting of the Commission.

The chairperson may, by writing signed by him, direct that the powers of the Commission under this Act or any other Act in relation to any matter or class of matter, shall be exercised by separate Divisions of the Commission.

The powers in subsection (1) are an exception to clause 14 of Schedule 5 of the Crown Entities Act 2004.

Each Division shall consist of such members as are for the time being assigned to that Division by the chairperson.

If the members appointed to any Division do not include either the chairperson or the deputy chairperson, the chairperson shall from time to time nominate the member who is to be chairperson of that Division.

In the absence of the member so nominated from any meeting of the Division, the members present shall appoint one of their number to be the chairperson of the Division for the purposes of that meeting.

For the purpose of the determination of a matter or class of matters specified in a direction given under subsection (1), the Commission shall be deemed to consist of the Division of the Commission specified in the direction; and the powers of any such Division shall not be affected by any changes or vacancies in its membership.

A Division of the Commission may exercise powers of the Commission under this Act or any other Act notwithstanding that another Division of the Commission is exercising powers of the Commission at the same time.

Any direction given under subsection (1) may be revoked or amended by the chairperson by writing signed by him.

A determination in writing signed, or assented to in writing (whether sent by post, delivery, or electronic communication), by all the members of the Commission or, of a Division of the Commission, as the case may be, necessary to constitute a quorum shall be as valid and effectual as if it had been made at a meeting of the Commission or Division duly called and constituted by those members.

This section applies despite clause 13 of Schedule 5 of the Crown Entities Act 2004.

Notwithstanding anything in this Act, any person who, immediately before the commencement of this Act was assisting the Commission by virtue of an appointment under section 18(1) and was a contributor to the Government Superannuation Fund under Part 2 of the Government Superannuation Fund Act 1956 shall be deemed, for the purposes of the Government Superannuation Fund Act 1956, to be employed in the Government service so long as that person continues to be an officer or employee of the Commission; and that Act shall apply to the person in all respects as if service as such an officer or employee were Government service. For the purposes of the Government Superannuation Fund Act 1956, the controlling authority in relation to any such person shall be the Commission.

Subject to the Government Superannuation Fund Act 1956, nothing in subsection (2) shall entitle any person to whom that subsection applies to become a contributor to the Government Superannuation Fund after ceasing to be a contributor to that Fund.

The income of the Commission shall be exempt from income tax.

In addition to the functions conferred on the Commission by this Act, the Commission shall make available or co-operate in making available information with respect to—

In the exercise of its powers under this Act, the Commission shall have regard to the economic policies of the Government as transmitted in writing from time to time to the Commission by the Minister.

The Minister shall cause every statement of economic policy transmitted to the Commission under subsection (1) to be published in the Gazette and laid before Parliament as soon as practicable after so transmitting it.

For the avoidance of doubt, a statement of economic policy transmitted to the Commission under this section is not a direction for the purposes of Part 3 of the Crown Entities Act 2004.

No person shall enter into a contract or arrangement, or arrive at an understanding, containing a provision that has the purpose, or has or is likely to have the effect, of substantially lessening competition in a market.

No person shall give effect to a provision of a contract, arrangement, or understanding that has the purpose, or has or is likely to have the effect, of substantially lessening competition in a market.

Subsection (2) applies in respect of a contract or arrangement entered into, or an understanding arrived at, whether before or after the commencement of this Act.

No provision of a contract, whether made before or after the commencement of this Act, that has the purpose, or has or is likely to have the effect, of substantially lessening competition in a market is enforceable.

No person, either on his own or on behalf of an associated person, shall—

that has the purpose, or has or is likely to have the effect, of substantially lessening competition in a market.

No person, either on his own or on behalf of an associated person, shall carry out or enforce the terms of a covenant that has the purpose, or has or is likely to have the effect, of substantially lessening competition in a market.

Subsection (2) applies to a covenant whether given before or after the commencement of this Act.

No covenant, whether given before or after the commencement of this Act, that has the purpose, or has or is likely to have the effect of substantially lessening competition in a market is enforceable.

No person shall—

Where a person—

that person shall, by issuing that invitation, making that offer, or making that fact known, be deemed to require the giving of the covenant.

For the purposes of this section, 2 persons shall be taken to be associated with each other in relation to a covenant or proposed covenant if, but only if,—

No person may—

See section 80 for liability to a pecuniary penalty, and section 82B for criminal liability, for contravention of this section.

A cartel provision is a provision, contained in a contract, arrangement, or understanding, that has the purpose, effect, or likely effect of 1 or more of the following in relation to the supply or acquisition of goods or services in New Zealand:

In this Act, price fixing means, as between the parties to a contract, arrangement, or understanding, fixing, controlling, or maintaining, or providing for the fixing, controlling, or maintaining of,—

In this Act, restricting output means preventing, restricting, or limiting, or providing for the prevention, restriction, or limitation of,—

In this Act, market allocating means allocating between any 2 or more parties to a contract, arrangement, or understanding, or providing for such an allocation of, either or both of the following:

In this Act, in relation to a cartel provision,—

No cartel provision is enforceable.

However, nothing in subsection (1) affects the enforceability of a cartel provision in any contract to which section 31, 32, 33, 44A(4) or (5), or 44B applies.

Nothing in section 30(1)(a) applies to a person in relation to a cartel provision if, at the time of entering into or arriving at the contract, arrangement, or understanding that contains the provision,—

Nothing in section 30(1)(b) applies to a person in relation to a cartel provision if, at the time of giving effect to the cartel provision,—

Nothing in section 30(1)(b) applies to a person in relation to a cartel provision that constitutes a restraint of trade if—

In this Act, collaborative activity means an enterprise, venture, or other activity, in trade, that—

The purpose referred to in subsection (4)(b) may be inferred from the conduct of any relevant person or from any other relevant circumstance.

Nothing in section 30 applies to a person in relation to a cartel provision in a contract, if—

The purpose referred to in subsection (1)(b)(ii) may be inferred from the conduct of any relevant person or from any other relevant circumstance.

A provision in a contract, arrangement, or understanding does not have the purpose, effect, or likely effect of price fixing if the provision—

Nothing in this section applies to any practice or conduct to which this Part applies that has been authorised under Part 5.

A person that has a substantial degree of power in a market must not take advantage of that power for the purpose of—

For the purposes of this section, a person does not take advantage of a substantial degree of power in a market by reason only that the person seeks to enforce a statutory intellectual property right, within the meaning of section 45(2), in New Zealand.

For the purposes of this section, a reference to a person includes 2 or more persons that are interconnected.

Nothing in this section applies to any practice or conduct to which this Part applies that has been authorised under Part 5.

A person must not, for any of the purposes specified in subsection (3), take advantage of the person’s substantial degree of power (if any)—

The purposes are as follows:

For the purposes of this section, a person does not take advantage of a substantial degree of power in a market by reason only that the person seeks to enforce—

For the purposes of this section, a reference to a person includes 2 or more persons that are interconnected.

The existence of any of the purposes specified in section 36 or section 36A, as the case may be, may be inferred from the conduct of any relevant person or from any other relevant circumstances.

No person shall engage in the practice of resale price maintenance.

For the purposes of this section, a person engages in the practice of resale price maintenance if that person (in this section referred to as the supplier) does any of the acts referred to in subsection (3).

The acts referred to for the purposes of subsection (2) are—

For the purposes of subsection (3),—

For the purposes of this section, sale includes advertise for sale, display for sale, and offer for sale, and sell, selling, and sold have corresponding meanings.

No person (in this section referred to as the third party) shall—

For the purposes of subsection (1),—

For the purposes of this section sale includes advertise for sale, display for sale, and offer for sale, and sell, selling, and sold have corresponding meanings.

For the purposes of section 37(3)(b), a supplier of any goods is not to be taken as inducing, or attempting to induce, another person not to sell those goods at a price less than a price specified by the supplier merely because—

For the purposes of section 37(3)(d) and (e) , the supplier shall be deemed to withhold the supply of goods to another person if—

For the purposes of section 38,—

Where, in proceedings under this Act against a supplier for a contravention of section 37(3)(d) or section 37(3)(e) it is proved that—

it shall be presumed, in the absence of evidence to the contrary, that the supplier so acted on account of that matter.

Nothing in subsection (1) applies in respect of terms imposed by a supplier that are disadvantageous or treatment that is less favourable than the supplier accords other persons if the terms or treatment consists only of a requirement by the supplier as to the time at which, or the form in which, payment was to be made or as to the giving of security to secure payment.

Nothing in this Part applies in respect of any act, matter, or thing that is, or is of a kind, specifically authorised by any enactment or Order in Council made under any Act.

For the purposes of subsection (1), an enactment or Order in Council does not provide specific authority for an act, matter, or thing if it provides in general terms for that act, matter, or thing, notwithstanding that the act, matter, or thing requires or may be subject to approval or authorisation by a Minister of the Crown, statutory body or a person holding any particular office, or, in the case of a rule made or an act, matter, or thing done pursuant to any enactment, approval or authorisation by Order in Council.

No act, matter, or thing authorised under section 7(2)(i) of the Sharebrokers Amendment Act 1981 or section 70(1)(n) of the Real Estate Agents Act 1976 as enacted immediately before the commencement of this Act, shall be taken to be specifically authorised under subsection (1).

Nothing in this Part applies—

Nothing in this Part (except sections 36 and 36A) applies to—

Nothing in section 27(1) applies to a person in relation to a provision of a contract, arrangement, or understanding if, at the time of entering into or arriving at the contract, arrangement, or understanding, the circumstances in subsection (6) apply.

Nothing in section 27(2) applies to a person in relation to a provision of a contract, arrangement, or understanding if, at the time of giving effect to the provision, the circumstances in subsection (6) apply.

Nothing in section 27(4) affects the enforceability of a provision in any contract to which subsection (1) or (2) applies.

Nothing in section 30(1)(a) applies to a person in relation to a cartel provision that has the effect, or likely effect, of restricting output or market allocating if, at the time of entering into or arriving at the contract, arrangement, or understanding that contains the provision, the circumstances in subsection (6) apply.

Nothing in section 30(1)(b) applies to a person in relation to a cartel provision that has the effect, or likely effect, of restricting output or market allocating if, at the time of giving effect to the provision, the circumstances in subsection (6) apply.

The circumstances are that—

For the purposes of subsection (6)(a), parties to the contract, arrangement, or understanding excludes persons who are parties only because section 30B(a) applies.

In this section,—

Nothing in section 30(1)(a) applies to a person in relation to a cartel provision that has the effect, or likely effect, of price fixing if, at the time of entering into or arriving at the contract, arrangement, or understanding that contains the provision, the circumstances in subsection (3) apply.

Nothing in section 30(1)(b) applies to a person in relation to a cartel provision that has the effect, or likely effect, of price fixing if, at the time of giving effect to the provision, the circumstances in subsection (3) apply.

The circumstances are that—

For the purposes of subsection (3)(a), parties to the contract, arrangement, or understanding excludes persons who are parties only because section 30B(a) applies.

Nothing in this Part, except sections 36, 36A, 37, and 38, applies—

For the purposes of subsection (1), a statutory intellectual property right means a right, privilege, or entitlement that is conferred, or acknowledged as valid, by or under—

For the purposes of subsection (2),—

Nothing in this Part applies—

A person must not acquire assets of a business or shares if the acquisition would have, or would be likely to have, the effect of substantially lessening competition in a market.

For the purposes of this section, a reference to a person includes 2 or more persons that are interconnected or associated.

For the purposes of this section, a person is associated with another person if that person is able, whether directly or indirectly, to exert a substantial degree of influence over the activities of the other.

A person is not able to exert a substantial degree of influence over the activities of another person for the purposes of subsection (3) by reason only of the fact that—

The Commission may apply to the High Court for a declaration under this section if an overseas person acquires, whether directly or indirectly, a controlling interest in a New Zealand body corporate through the acquisition outside New Zealand of the assets of a business or shares.

The High Court may make a declaration that it is satisfied that—

A declaration may not be made in respect of an acquisition if—

Nothing in this section limits the Commission’s functions or powers under any other provision of this Act.

In this section and in sections 47B to 47D,—

The Commission may apply to the High Court for an order under this section in respect of a New Zealand body corporate—

If the High Court makes a declaration under section 47A in relation to an overseas person, it may make an order under this section requiring any New Zealand body corporate in which the person has a controlling interest to—

Contravention of an order made under this section is a contravention of this section.

An application for a declaration under section 47A, or for an order under section 47B, may be made only by the Commission.

On making an application under section 47A, the Commission must give notice of the application to the relevant overseas person and New Zealand body corporate.

On making an application under section 47B, the Commission must give notice to any New Zealand body corporate to which the application relates.