Commerce Amendment Bill

Commerce Amendment Bill

Government Bill

9—1

Explanatory note

General policy statement

This Bill amends the Commerce Act 1986 (the Act) to strengthen the prohibition against misuse of market power (section 36) and make other changes to improve the functioning of the Act.

Section 36 (misuse of market power)

Section 36 of the Act prohibits persons with substantial market power from taking advantage of that power for an anti-competitive purpose. This is New Zealand’s anti-monopolisation prohibition. It is not unlawful in New Zealand to be the sole supplier (or acquirer) in a market for goods or services or to hold substantial market power. Rather, persons that hold substantial market power must not use that power for anticompetitive purposes. Effectively, this prohibition seeks to prevent firms with market power from harming the competitive process by maintaining or extending their market power in a way that limits the ability of other firms to compete, and in turn reduces the benefits to consumers and the economy associated with competition.

Examples of conduct that may be covered by this prohibition include exclusive dealing, refusal to supply, or predatory pricing. When this conduct is carried out by a firm with market power it can lead to higher prices, lower quality goods and services, and weak incentives for investment and innovation.

The Bill is informed by a review that identified 3 main problems with the operation of this prohibition as follows:

  • it has the potential to fail to deter or penalise some forms of anti-competitive conduct:

  • it is costly and complex to enforce, which reduces the incentives for businesses to comply with the law:

  • it creates some unpredictability as to its application to business conduct.

To address these concerns, the Bill amends section 36 to make explicit that conduct by persons with substantial market power that has the purpose, effect, or likely effect of substantially lessening competition in markets is prohibited. This change aligns the prohibition with the equivalent prohibition in Australian competition law, on which the Commerce Act is based. On application, the Commerce Commission is also empowered to grant authorisation for conduct to which section 36 would or might apply if that conduct is in the public interest.

Repeal of safe harbours for intellectual property

The Act contains three provisions that effectively provide safe harbours for certain intellectual property rights from specified prohibitions in the Act. These provisions, which are unclear in scope and untested in the courts, are repealed in the Bill. This amendment reflects an increasing acceptance that intellectual property rights and competition law are generally complementary, with both seeking to encourage innovation and provide long-term benefits for consumers. However, in the unusual circumstance that conduct or arrangements relating to intellectual property rights harm competition, this should be assessed under the Act in the same manner as other property.

Other matters

The Bill also provides for a range of matters to improve the functioning of the Act. These include—

  • providing that cartel provisions in covenants are to be treated the same as those in contracts:

  • clarifying the application of the Act to interests in land:

  • increasing the maximum pecuniary penalties for anti-competitive business acquisitions to align with those relating to anti-competitive agreements:

  • increasing the maximum number of Commerce Commission members from 6 to 8:

  • providing that the Commerce Commission may share information that it holds in relation to its functions under the Act, or any other Act that it enforces, with other public service agencies or statutory entities, subject to safeguards.

Departmental disclosure statement

The Ministry of Business, Innovation, and Employment is required to prepare a disclosure statement to assist with the scrutiny of this Bill. The disclosure statement provides access to information about the policy development of the Bill and identifies any significant or unusual legislative features of the Bill.

Regulatory impact assessment

The Ministry of Business, Innovation, and Employment produced a regulatory impact assessment on 18 February 2020 to help inform the main policy decisions taken by the Government relating to the contents of this Bill.

Clause by clause analysis

Clause 1 is the Title clause.

Clause 2 provides for when the Bill comes into force.

Clauses 4(3), (4), (6), (8), and (9), 7, and 8 come into force 1 month after the Bill receives the Royal assent. These sections are largely administrative provisions and minor clarifications. Clauses 4(1), 17, 18, and 31 to 37, which relate to information sharing by the Commerce Commission, also come into force 1 month after the Bill receives the Royal assent.

Clause 38(1) comes into force 6 months after Royal assent.

The rest of the Act comes into force 12 months after Royal assent.

Clause 3 provides that the Bill amends the Commerce Act 1986 (the Act). In this clause by clause analysis, all references to a section (for example, section 2) refer to a section of the Act unless otherwise stated. All references to a new section (for example, new section 36) refer to a new section inserted into the Act by the Bill.

Part 1Amendments to principal Act

Clause 4 amends section 2, which relates to the interpretation of the Act.

Clause 4(1) inserts definitions of overseas regulator and public service agency into section 3. See the analysis on clauses 18 and 33 for further details about these definitions.

Clause 4(2) inserts a definition of substantial, which is similar in effect to the current section 2(1A) (as repealed by clause 4(10)) but with some changes. The effect is that substantial means “real or of substance” when used in the context of a substantial lessening of competition but not in some other contexts. In particular, the definition does not apply to the phrase “substantial degree of power in a market”.

Clause 4(3), (4), (6), (8), and (9) makes minor amendments to the definitions of acquire, business, price, supply, and trade to reflect the fact that goods and services include interests in land.

Clause 4(5), (11), (12), (14), and (15) makes minor changes to refer to covenants and to include giving effect to covenants.

Clause 4(7) replaces the definition of provision to clarify its meaning in relation to a covenant.

Clause 4(13) inserts new section 2(6)(d) to define a party to a covenant.

Clause 5 extends section 3(7) to apply to new section 36, so that new section 36 is read in the same way as sections 27 and 28.

Clause 6 repeals section 7(2), which provides that the Act does not limit or affect any rule of law relating to breaches of confidence. Section 7(2) potentially excludes the application of the Act to intellectual property rights protected by the common law on breaches of confidence. The Bill also repeals special exceptions for intellectual property under sections 36(3) and 45 (see clauses 14 and 15).

Clause 7 amends section 9 to increase the maximum membership of the Commission from 6 to 8 members.

Clause 8 amends section 13 to clarify that a former member of the Commission who is deemed to continue as a member for a particular purpose under section 13(4) is not counted as a member for the purpose of determining the number of members.

Clauses 9 to 12 amend sections 30 to 30C to extend the prohibition on cartel provisions to provisions contained in covenants.

Clause 13 amends section 31 to extend the exception for collaborative activity to cartel provisions contained in covenants.

Clause 14 replaces section 36, which prohibits a person who has a substantial degree of power in a market from taking advantage of that power for certain purposes, with a new section that is similar to its Australian equivalent. New section 36 prohibits a person with a substantial degree of power in a market from engaging in conduct that has the purpose, or has or is likely to have the effect, of substantially lessening competition in a relevant market. The relevant markets include the market in which the person has the substantial degree of power and any other market in which the person, or an interconnected person, supplies or acquires, or is likely to supply or acquire, goods or services (including indirectly through other persons).

Clause 15 repeals section 45, which provides exceptions from Part 2 for statutory intellectual property rights. New clause 18 of schedule 1AA continues this exception for 3 years for those rights contained in a contract, arrangement, or understanding entered into before the repeal of section 45.

Clause 16 amends section 46, which provides an exception to Part 2 of the Act for provisions of contracts, arrangements, or understandings providing for the acquisition or disposition of assets of a business or shares. The amendment extends the exception to covenants.

Clause 17 repeals the definition of department in section 48.

Clause 18 amends section 51A to replace the term department with public service agency, which has the same meaning. The Bill inserts a definition of public service agency (see clause 4(1)) and the term is also used in new section 99AA.

Clause 19 inserts new section 58(5) to enable the Commerce Commission to authorise a person to engage in conduct to which new section 36 would, or might, apply. New clause 14 of Schedule 1AA allows authorisations to be granted under new section 58(5) before it comes into force. However, the authorisations would not take effect until new section 58(5) is in force.

Clause 20 amends section 58A to provide that new section 36 does not prevent a person from doing anything that has been authorised by the Commerce Commission under section 58. Clause 20 also inserts new section 58A(4A) to provide that a person authorised to engage in conduct to which new section 36 would, or might, apply is not prevented from engaging in that conduct by new section 36 or section 27, 28, 30, 30C, 37, or 38 of the Act.

Clause 21 amends section 58B to provide that authorisations relating to new section 36 apply to other parties to the conduct that are named in the relevant application. This brings authorisations under new section 58(5) into line with other authorisations granted under section 58 of the Act.

Clause 22 amends section 59, which allows a contract to which section 27 applies to be entered into, or a covenant to which section 28 applies to be given, before an authorisation is granted. This is allowed on the condition that the contract or covenant does not take effect until the authorisation is granted. Clause 22 extends section 59 to cover contracts and covenants to which new section 36 applies.

Clause 23 amends section 61, which prescribes a test for determining applications for authorisation of restrictive trade practices. The amendment extends the test to authorisations relating to new section 36. The test prevents the Commission from granting an authorisation unless there is a benefit to the public that would outweigh the lessening in competition that would, or would likely, result from the activity to which the authorisation relates.

Clauses 24 and 25 amend sections 65A and 65B of the Act, which allow the Commission to give clearances for cartel provisions in contracts, arrangements, or understandings. The amendments allow a clearance to be given in the same way for a cartel provision contained in a covenant. Clause 26 also amends section 65B to provide that a person does not contravene new section 36 by—

  • entering into a contract or arrangement, arriving at an understanding or giving, or requiring the giving of, a covenant to which a clearance relates; or

  • giving effect to a contract, arrangement, understanding, or covenant to which a clearance relates.

Clause 26 amends section 69 to provide that new section 36 does not apply to the acquisition of assets of a business or shares made in accordance with a clearance or an authorisation.

Clause 27 amends section 80C, which enables the court to exclude a person who has contravened the prohibition on cartel provisions from management of a body corporate for up to 5 years. The amendment extends the court’s power to cover cartel provisions in covenants.

Clause 28 amends section 83 to increase the maximum pecuniary penalty for contravening section 47 or 47B (which prohibit certain business acquisitions). The new maximum penalty is the same as the penalty relating to restrictive trade practices (see section 80).

Clauses 29 and 30 amend sections 89 and 92, which relate to court orders and appeals respectively. The amendments mean a person has the same rights in relation to a cartel provision in a covenant as they would if the provision were contained in a contract, arrangement, or understanding.

Clause 31 inserts a cross-heading

Clause 32 inserts new sections 99AA and 99AB to empower the Commerce Commission to share information with public service agencies, statutory entities, and the Reserve Bank. The Commission may only share the information if it considers the information may assist in the legislative functions, powers, or duties of the relevant agency or entity. The Commission must also be satisfied that there are appropriate protections for maintaining confidentiality of any information shared and may impose conditions on providing that information. New sections 99AA and 99AB are similar to sections 30 and 33 of the Financial Markets Authority Act 2011, which prescribe information-sharing powers for the Financial Markets Authority. The Privacy Act 2020 applies to any sharing of personal information under new section 99AA.

Clause 33 repeals the definition of overseas regulator in section 99C. Clause 4(1) of the Bill inserts the same definition into section 2 so that it applies to the whole Act. The term is used in new section 99AA.

Clause 34 inserts a cross-heading.

Clause 35 repeals section 48A of the Fair Trading Act 1986, which will be redundant once new sections 99AA and 99AB come into force.

Clause 36 amends section 15B of the Takeovers Act 1993 to refer to new section 99AA instead of section 48A of the Fair Trading Act 1986.

Clause 37 amends section 29 of the Fuel Industry Act 2020 to provide that it does not limit new section 99AA.

Clause 38 inserts a new Part 4 into Schedule 1AA of the Act, which prescribes transitional and savings provisions in relation to this Bill.

Hon Dr David Clark

Commerce Amendment Bill

Government Bill

9—1

Contents

Explanatory note
1Title
2Commencement
3Principal Act
4Section 2 amended (Interpretation)
5Section 3 amended (Certain terms defined in relation to competition)
6Section 7 amended (Law relating to restraint of trade and breaches of confidence not affected)
7Section 9 amended (Membership of Commission)
8Section 13 amended (Termination of appointment of members)
9Section 30 amended (Prohibition on entering into or giving effect to cartel provision)
10Section 30A amended (Meaning of cartel provision and related terms)
11Section 30B amended (Additional interpretation relating to cartel provisions)
12Section 30C amended (Cartel provisions generally unenforceable)
13Section 31 amended (Exception for collaborative activity)
14Section 36 and cross-heading replaced
36Misuse of market power
15Section 45 repealed (Exceptions in relation to intellectual property rights)
16Section 46 amended (Saving in respect of business acquisitions)
17Section 48 amended (Interpretation)
18Section 51A amended (Competition study terms of reference)
19Section 58 amended (Commission may grant authorisation for restrictive trade practices)
20Section 58A amended (Effect of authorisation)
21Section 58B amended (Additional provisions relating to authorisations)
22Section 59 amended (Contracts or covenants subject to authorisation not prohibited under certain conditions)
23Section 61 amended (Determination of applications for authorisation of restrictive trade practices)
24Section 65A amended (Commission may give clearances relating to cartel provisions)
25Section 65B amended (Effect of clearance under section 65A)
26Section 69 amended (Effect of clearance or authorisation)
27Section 80C amended (Court may order certain persons to be excluded from management of body corporate)
28Section 83 amended (Pecuniary penalties relating to business acquisitions)
29Section 89 amended (Other orders)
30Section 92 amended (Persons entitled to appeal)
31New cross-heading above section 98 inserted
32New sections 99AA and 99AB and cross-headings inserted
99AASharing of information and documents with public service agencies, statutory entities, and Reserve Bank
99ABCommission may impose conditions on provision of information or documents
33Section 99C amended (Definitions of terms used in sections 99B to 99P)
34New cross-heading above section 100 inserted
35Consequential amendment to Fair Trading Act 1986
36Consequential amendment to Takeovers Act 1993
37Consequential amendment to Fuel Industry Act 2020
38Schedule 1AA amended

The Parliament of New Zealand enacts as follows:

1 Title

This Act is the Commerce Amendment Act 2021.

2 Commencement

(1)

Sections 4(1), (3), (4), (6), (8), and (9), 7, 8, 17, 18, and 31 to 37 commence 1 month after Royal assent.

(2)

Section 38(1) commences 6 months after Royal assent.

(3)

The rest of this Act commences on the first anniversary of Royal assent.

3 Principal Act

This Act amends the Commerce Act 1986 (the principal Act).

Part 1 Amendments to principal Act

4 Section 2 amended (Interpretation)

(1)

In section 2(1), insert in their appropriate alphabetical order:

overseas regulator means an overseas body that has competition law functions corresponding to those of the Commission under this Act

public service agency means any of the agencies listed in section 10(a) of the Public Service Act 2020

(2)

In section 2(1), insert in its appropriate alphabetical order:

substantial means real or of substance, except in—

(a)

section 36 and 36A when referring to a degree of power in a market; and

(b)

section 47(3) and (4); and

(c)

Part 4

(3)

In section 2(1), definition of acquire, paragraph (c), after “to”, insert “goods or services that are”.

(4)

In section 2(1), definition of business, replace paragraph (b) with:

(b)

in the course of which goods or services are acquired or supplied otherwise than free of charge

(5)

In section 2(1), definition of give effect to, replace “or understanding” with “understanding, or covenant”.

(6)

In section 2(1), definition of price, delete “or the acquisition or disposition of any interest in land”.

(7)

In section 2(1), replace the definition of provision with:

provision

(a)

in relation to a covenant, means a term of the covenant; and

(b)

in relation to an understanding or arrangement, means any matter forming part of or relating to the understanding or arrangement

(8)

In section 2(1), replace the definition of supply with:

supply,—

(a)

in relation to goods, includes supply (or resupply) by way of gift, sale, exchange, lease, hire, or hire purchase; and

(b)

in relation to services, includes provide, grant, or confer; and

(c)

in relation to goods or services that are interests in land, includes disposition

(9)

In section 2(1), definition of trade, delete “or to the disposition or acquisition of any interest in land”.

(10)

Repeal section 2(1A).

(11)

In section 2(2)(a)(iii), after “or the giving of,”, insert “or the giving effect to a provision of,”.

(12)

In section 2(2)(b)(iii), after “or the giving of,”, insert “or the giving effect to a provision of,”.

(13)

After section 2(6)(c), insert:

(d)

a reference to a party to a covenant means a person who—

(i)

is bound by, or entitled to the benefit of, the covenant; or

(ii)

would be bound by, or entitled to the benefit of, the covenant if not for section 28(4) or 30C.

(14)

In section 2(8)(a), after “arrived at”, insert “, or covenant given or required to be given,”.

(15)

In section 2(9), replace “or understanding” with “understanding, or covenant” in each place.

5 Section 3 amended (Certain terms defined in relation to competition)

In section 3(7), replace “and 28” with “, 28, and 36.

6 Section 7 amended (Law relating to restraint of trade and breaches of confidence not affected)

(1)

Replace the heading of section 7 with Relationship with law on restraint of trade.

(2)

Repeal section 7(2).

(3)

In section 7(3), delete “or subsection (2)”.

7 Section 9 amended (Membership of Commission)

(1)

In section 9(1), replace “no more than 6” with “no more than 8”.

(2)

In section 9(2), replace “no more than 5” with “no more than 7”.

8 Section 13 amended (Termination of appointment of members)

After section 13(5), insert:

(6)

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).

9 Section 30 amended (Prohibition on entering into or giving effect to cartel provision)

After section 30(a), insert:

(ab)

give, or require the giving of, a covenant that contains a cartel provision; or

10 Section 30A amended (Meaning of cartel provision and related terms)

In section 30A, replace “or understanding” with “understanding, or covenant” in each place.

11 Section 30B amended (Additional interpretation relating to cartel provisions)

In section 30B(a), replace “or understanding” with “understanding, or covenant” in each place.

12 Section 30C amended (Cartel provisions generally unenforceable)

Replace section 30C(2) with:

(2)

However, nothing in subsection (1) affects the enforceability of a cartel provision in—

(a)

a contract or covenant to which section 33 applies; or

(b)

a contract to which section 31, 32, 44A(4) or (5), or 44B applies.

13 Section 31 amended (Exception for collaborative activity)

(1)

After section 31(1), insert:

(1A)

Nothing in section 30(ab) applies to a person in relation to a cartel provision if, at the time of giving, or requiring the giving of, a covenant that contains the provision,—

(a)

the person and 1 or more other parties to the covenant are involved in a collaborative activity; and

(b)

the cartel provision is reasonably necessary for the purpose of the collaborative activity.

(2)

In section 31(2)(a), replace “or understanding” with “understanding, or covenant”.

(3)

In section 31(3)(a), replace “or understanding” with “understanding, or covenant”.

14 Section 36 and cross-heading replaced

Replace section 36 and the cross-heading above section 36 with:

Misuse of market power

36 Misuse of market power

(1)

A person that has a substantial degree of power in a market must not engage in conduct that has the purpose, or has or is likely to have the effect, of substantially lessening competition in—

(a)

that market; or

(b)

any other market in which the person, or an interconnected person,—

(i)

supplies or acquires, or is likely to supply or acquire, goods or services; or

(ii)

supplies or acquires, or is likely to supply or acquire, goods or services indirectly through 1 or more other persons.

(2)

In this section, a person has a substantial degree of power in a market if—

(a)

the person has a substantial degree of power in the market; or

(b)

the person, together with 1 or more interconnected persons, has a substantial degree of power in the market; or

(c)

1 or more interconnected persons of the person have a substantial degree of power in the market; or

(d)

2 or more interconnected persons together have a substantial degree of power in the market.

Compare: Competition and Consumer Act 2010 s 46 (Aust)

15 Section 45 repealed (Exceptions in relation to intellectual property rights)

Repeal section 45.

16 Section 46 amended (Saving in respect of business acquisitions)

(1)

Replace section 46(a) with:

(a)

to any of the following to the extent that the contract, arrangement, understanding, or covenant provides for the acquisition or disposition of assets of a business or shares:

(i)

entering into a contract or arrangement:

(ii)

arriving at an understanding:

(iii)

giving, or requiring the giving of, a covenant; or

(2)

In section 46(b), replace “or understanding” with “understanding, or covenant”.

17 Section 48 amended (Interpretation)

In section 48, repeal the definition of department.

18 Section 51A amended (Competition study terms of reference)

In section 51A, replace “departments” with “public service agencies” in each place.

19 Section 58 amended (Commission may grant authorisation for restrictive trade practices)

After section 58(4), insert:

(5)

A person who wishes to engage in conduct to which that person considers section 36 would apply, or might apply, may apply to the Commission for an authorisation to do so, and the Commission may grant an authorisation for that person to engage in that conduct.

20 Section 58A amended (Effect of authorisation)

(1)

In section 58A(1) and (2), replace “or 30C” with “30C, or 36.

(2)

In section 58A(3), replace “subsection (3) of section 58 remains in force, nothing in section 28 shall prevent” with “section 58(3) remains in force, nothing in section 28, 30, 30C, or 36 prevents”.

(3)

In section 58A(4), replace “subsection (4) of section 58 remains in force, nothing in section 28 shall prevent” with “section 58(4) remains in force, nothing in section 28, 30, 30C, or 36 prevents”.

(4)

After section 58A(4), insert:

(4A)

While an authorisation under section 58(5) remains in force, nothing in section 27, 28, 30, 30C, 36, 37, or 38 prevents an applicant from engaging in conduct to which the authorisation relates in accordance with the authorisation.

(5)

In section 58A(5), replace “subsection (7) of section 58 remains in force, nothing in section 37 shall prevent” with “section 58(7) remains in force, nothing in section 36 or 37 prevents”.

(6)

In section 58A(6), replace “subsection (8) of section 58 remains in force, nothing in section 38 shall prevent” with “section 58(8) remains in force, nothing in section 36 or 38 prevents”.

21 Section 58B amended (Additional provisions relating to authorisations)

(1)

After section 58B(1)(d), insert:

(da)

engage in conduct to which that person considers section 36 would apply or might apply; or

(2)

In section 58B(1), replace “practice or act” with “conduct, practice, or act”.

22 Section 59 amended (Contracts or covenants subject to authorisation not prohibited under certain conditions)

(1)

In section 59, after “section 27”, insert “or 36 in each place.

(2)

In section 59, after “section 28”, insert “or 36 in each place.

23 Section 61 amended (Determination of applications for authorisation of restrictive trade practices)

(1)

In section 61(6), replace “(4)” with “(5)”.

(2)

In section 61(6)(d), replace “covenant— ” with “covenant; or”.

(3)

After section 61(6)(d), insert:

(e)

engaging in the conduct—

24 Section 65A amended (Commission may give clearances relating to cartel provisions)

(1)

Replace section 65A(1) with:

(1)

A person who proposes to do any of the following may apply to the Commission for a clearance under this section:

(a)

enter into a contract or arrangement that contains, or may contain, a cartel provision:

(b)

arrive at an understanding that contains, or may contain, a cartel provision:

(c)

give, or require the giving of, a covenant that contains, or may contain, a cartel provision.

(2)

In section 65A(2)(a) and (b), replace “or understanding” with “understanding, or covenant”.

(3)

Replace section 65A(2)(c) with:

(c)

the following will not have, or would not be likely to have, the effect of substantially lessening competition in a market:

(i)

entering into the contract or arrangement:

(ii)

arriving at the understanding:

(iii)

giving, or requiring the giving of, the covenant:

(iv)

giving effect to any provision of the contract, arrangement, understanding, or covenant.

25 Section 65B amended (Effect of clearance under section 65A)

(1)

In section 65B, replace “or understanding” with “understanding, or covenant” in each place.

(2)

In section 65B, replace “or 30” with “30, or 36 in each place.

(3)

In section 65B(a), after “the understanding”, insert “, or giving, or requiring the giving of, the covenant”.

26 Section 69 amended (Effect of clearance or authorisation)

In section 69, after “27,”, insert 36,”.

27 Section 80C amended (Court may order certain persons to be excluded from management of body corporate)

(1)

After section 80C(a), insert:

(ab)

given, or required the giving of, a covenant that contains a cartel provision; or

(2)

In section 80C(b), replace “or understanding” with “understanding, or covenant”.

28 Section 83 amended (Pecuniary penalties relating to business acquisitions)

(1)

Repeal section 83(1A).

(2)

In section 83(2), replace “shall” with “must”.

(3)

After section 83(2), insert:

(3)

The amount of any pecuniary penalty must not, in respect of each act or omission, exceed,—

(a)

in the case of an individual, $500,000; or

(b)

in any other case, the greater of the following:

(i)

$10 million:

(ii)

either,—

(A)

if it can be readily ascertained and if the court is satisfied that the contravention occurred in the course of producing a commercial gain, 3 times the value of any commercial gain resulting from the contravention; or

(B)

if the commercial gain cannot readily be ascertained, 10% of the turnover of the person and all its interconnected bodies corporate (if any) in each accounting period in which the contravention occurred.

29 Section 89 amended (Other orders)

In section 89(3), replace “person who, but for section 28(4) would be bound by or entitled to the benefit of” with “party to” in each place.

30 Section 92 amended (Persons entitled to appeal)

In section 92(ba)(ii), replace “or understanding” with “understanding, or covenant”.

31 New cross-heading above section 98 inserted

Before section 98, insert:

Powers relating to evidence

32 New sections 99AA and 99AB and cross-headings inserted

After section 99, insert:

Power to share information and documents with public service agencies, statutory entities, and Reserve Bank

99AA Sharing of information and documents with public service agencies, statutory entities, and Reserve Bank

(1)

The Commission may provide to a public service agency, a statutory entity, or the Reserve Bank of New Zealand any information, or a copy of any document, that the Commission—

(a)

holds in relation to the performance or exercise of the Commission’s functions, powers, or duties under this Act or any other legislation; and

(b)

considers may assist the public service agency, statutory entity, or Reserve Bank in the performance or exercise of its functions, powers, or duties under this Act or any other legislation.

(2)

The Commission may provide information, or a copy of a document, under this section only if the Commission is satisfied that—

(a)

doing so will not substantially affect the performance of its other functions; and

(b)

appropriate protections are or will be in place for the purpose of maintaining the confidentiality of anything provided (in particular, information that is personal information within the meaning of the Privacy Act 2020).

(3)

The Commission may use any information, or a copy of any document, in the Commission’s performance or exercise of its functions, powers, or duties under any legislation if the information or copy is provided to the Commission—

(a)

by a public service agency or statutory entity, or the Reserve Bank, under any legislation; or

(b)

by an overseas regulator.

(4)

In this section, statutory entity means an entity or office named in Schedule 1 of the Crown Entities Act 2004.

(5)

This section applies despite anything to the contrary in any contract, deed, or document.

(6)

Nothing in this section limits the Privacy Act 2020 or section 29 of the Fuel Industry Act 2020.

99AB Commission may impose conditions on provision of information or documents

(1)

The Commission may impose any conditions in relation to providing information, or a copy of a document, to a public service agency or a statutory entity (whether in compliance with a request or otherwise).

(2)

The Commission must, in considering what conditions to impose, have regard to whether conditions are necessary or desirable in order to protect the privacy of any individual.

(3)

The conditions may include, without limitation, conditions relating to—

(a)

maintaining the confidentiality of anything provided (in particular, information that is personal information within the meaning of the Privacy Act 2020):

(b)

the storing of, the use of, or access to anything provided:

(c)

the copying, returning, or disposing of copies of documents provided:

(d)

payment of the costs incurred by the Commission in providing anything or in generally complying with a request.

(4)

This section does not limit section 100.

Assistance to overseas regulators

33 Section 99C amended (Definitions of terms used in sections 99B to 99P)

In section 99C, repeal the definition of overseas regulator.

34 New cross-heading above section 100 inserted

After section 99P, insert:

Offences, regulations, and administrative provisions

Part 2 Transitional, related, and consequential amendments

35 Consequential amendment to Fair Trading Act 1986

(1)

This section amends the Fair Trading Act 1986.

(2)

Repeal section 48A.

36 Consequential amendment to Takeovers Act 1993

(1)

This section amends the Takeovers Act 1993.

(2)

In section 15B(2), replace “section 48A of the Fair Trading Act 1986” with section 99AA of the Commerce Act 1986”.

37 Consequential amendment to Fuel Industry Act 2020

(1)

This section amends the Fuel Industry Act 2020.

(2)

In section 29(5), after “Privacy Act 2020”, insert “or section 99AA of the Commerce Act 1986”.

38 Schedule 1AA amended

(1)

In Schedule 1AA, after Part 3, insert the Part 4 set out in Part 1 of the Schedule of this Act.

(2)

In Schedule 1AA, after clause 14 (as inserted by subsection (1)), insert the clauses 15 to 23 set out in Part 2 of the Schedule of this Act.

Schedule New Part 4 inserted into Schedule 1AA

s 38

Part 1 Transitional provisions that come into force 6 months after Royal assent

Part 4 Provisions relating to Commerce Amendment Act 2021

13 Interpretation

(1)

In this Part,—

3-year transitional period means the period that starts on the commencement date and ends at the close of the third anniversary of the commencement date

Amendment Act means the Commerce Amendment Act 2021

commencement date means the first anniversary of Royal assent for the Amendment Act.

(2)

In this Part,—

(a)

a reference to a section or Part (for example, section 36) is a reference to that section as in force on and from the commencement date; and

(b)

a reference to a former section or Part (for example, former Part 2) is a reference to that section or Part as in force immediately before the commencement date.

14 Authorisation under new section 58(5) may be granted before that section comes into force

(1)

This clause applies—

(a)

before the commencement date; but

(b)

as if sections 36, 58(5), 58B, 59, and 61 were in force.

(2)

A person may apply to the Commission under section 58(5) for an authorisation relating to section 36.

(3)

The Commission may grant the authorisation.

(4)

Sections 58B, 59 and 61 apply in relation to an application made under this clause.

(5)

An authorisation granted under this clause may only take effect on or after the commencement date.

Part 2 Transitional provisions that come into force on first anniversary of Royal assent

15 Application of cartel prohibition to covenants in force before commencement date

During the 3-year transitional period, nothing in section 30(b) applies in relation to a covenant that is given, or required to be given, before the commencement date.

16 Application of section 36 to contracts, arrangements, understandings, and covenants in force before commencement date

Section 36 applies to conduct that gives effect to a contract, arrangement, understanding, or covenant whether—

(a)

the contract or arrangement was entered into before, on, or after the commencement date; or

(b)

the understanding was arrived at before, on, or after the commencement date; or

(c)

the covenant was given, or required to be given, before, on, or after the commencement date.

17 Conduct authorised before section 36 replaced continues to be authorised

(1)

Nothing in section 36 applies to any conduct—

(a)

to which former Part 2 applied; and

(b)

that, before the commencement date, was authorised under the former Part 5.

(2)

Nothing in section 36 applies to any conduct—

(a)

to which former Part 2 applied; and

(b)

in respect of which an application for an authorisation under the former Part 5 was—

(i)

made before the commencement date; and

(ii)

approved on or after the commencement date.

(3)

See former section 36(1).

18 Application of former section 45 to existing statutory intellectual property rights

Despite its repeal, former section 45(1)(b) continues to apply during the 3-year transitional period in relation to a contract, arrangement, or understanding that was—

(a)

described in former section 45(1)(a); and

(b)

entered into, or arrived at, before the commencement date.

19 Sections 58A, 58B, and 59 apply to existing authorisations

Sections 58A, 58B, and 59 apply to an authorisation granted by the Commission under former section 58 before the commencement date.

21 Section 65B applies to existing clearances

Section 65B applies to a clearance given by the Commission under former section 65A before the commencement date.

22 Section 69 applies to existing clearances and authorisations

Section 69 applies in relation to a clearance or an authorisation whether the clearance was given, or the authorisation was granted, before, on, or after the commencement date.

23 Court may make order in relation to covenant only if given on or after commencement date

Section 80C applies to a covenant only if the covenant is given, or required to be given, on or after the commencement date.