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 8, 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 7, 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.

To avoid doubt, a former member who is deemed to continue as a member under subsection (4) is not a member for the purposes of determining the number of members under section 9(1) or (2).

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,—

A covenant to which this section applies must be treated, for the purpose of section 27 or 28 (as the case may be), as having the purpose, or as having or being likely to have the effect, of substantially lessening competition in the relevant market.

This section applies to any of the following in which a designated grocery retailer has an interest:

However, this section does not apply to—

In this section, unless the context otherwise requires,—

A designated grocery retailer has an interest in a covenant—

Subsection (1) does not limit any other provision of this Part.

If this section applies, the reference in section 61(6) to any lessening in competition that would result, or would be likely to result, includes any lessening that this section provides must be treated as resulting.

This section applies if—

The designated grocery retailer may—

The revocation or modification must be effected using the process for the notation of covenants set out in section 116 of the Land Transfer Act 2017.

However, despite section 116(5) of the Land Transfer Act 2017, the relevant covenant instrument or covenant variation instrument may be executed by the designated grocery retailer acting alone.

This section is repealed on the second anniversary of the commencement date.

In this section,—

The Governor-General may, on the recommendation of the Minister, make an Order in Council designating a person as a designated grocery retailer for the purpose of section 28A.

The Minister may recommend to the Governor-General that a person be designated as a designated grocery retailer only after receiving a recommendation from the Commission.

The Commission may recommend to the Minister that a person be designated as a designated grocery retailer only—

The Commission’s recommendation must advise the Minister whether the Commission considers that those criteria are met.

In deciding whether to make a recommendation, the Minister may do any of the following:

The Commission must make the recommendation publicly available as soon as practicable after making it, including a statement of its reasons for making the recommendation.

An order made under this section is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).

For the purpose of assessing compliance with the provisions listed in subsection (2), the Commission may, by written notice, require a designated grocery retailer to—

The provisions are—

Part 7 applies to a notice under subsection (1) as if it were a notice given under section 98.

This section does not limit any of the Commission’s other functions, duties, or powers under this Act or any other legislation.

In this section, designated grocery retailer has the same meaning as in section 28A.

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—