Reprint as at 1 October 2010
| Commerce Act 1986 | ||
|---|---|---|
| Public Act 1986 No 5 | ||
| Date of assent 28 April 1986 | ||
| Commencement see section 1(2) | ||
| Contents | ||
| Page | ||
| Title[Repealed] | 16 | |
| 1 | Short Title and commencement | 16 |
| 1A | Purpose | 16 |
| 2 | Interpretation | 16 |
| 3 | Certain terms defined in relation to competition | 26 |
| 3A | Commission to consider efficiency | 28 |
| 4 | Application of Act to conduct outside New Zealand | 28 |
| 5 | Application of Act to the Crown | 29 |
| 6 | Application of Act to Crown corporations | 29 |
| 6A | Special provisions relating to application of Act to the | 30 |
| Crown in right of Australia and to Australian Crown | ||
| corporations | ||
| 6B | Crown and Crown corporations not immune from | 30 |
| jurisdiction in relation to certain provisions of Trade | ||
| Practices Act 1974 | ||
| 6C | Application of Evidence Amendment Act 1980 | 31 |
| 7 | Law relating to restraint of trade and breaches of | 31 |
| confidence not affected | ||
Note
Changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in this reprint.
Ageneraloutlineofthesechangesissetoutinthenotesattheendofthisreprint,togetherwith other explanatory material about this reprint.
This Act is administered by the Ministry of Economic Development.
Part 1 The Commerce Commission
8 Establishment of Commission 31 8A Application of Crown Entities Act 2004 32 9 Membership of Commission 32 10 Terms and conditions of appointment 33 11 Associate members 33 12 Chairperson and deputy chairperson 35 13 Termination of appointment of members 35 14 Disclosure of financial interests[Repealed] 36 15 Meetings of Commission 36 16 Chairperson may direct Commission to sit in Divisions 37 17 Assent to determination 38 18 Officers and employees[Repealed] 38 18A Personnel policy[Repealed] 38 18B Equal employment opportunities[Repealed] 39 18C Choice of procedure[Repealed] 39 18D Superannuation and retiring allowances 39 19 Money to be appropriated by Parliament for purposes of 40
this Act[Repealed] 20 Funds of Commission[Repealed] 40 21 Bank accounts[Repealed] 40 22 Crown entity[Repealed] 40 23 Investment of money[Repealed] 40 24 Exemption from income tax 40 25 Functions of Commission in relation to dissemination of 40
information 26 Commission to have regard to economic policies of 41
Part 2 Restrictive trade practices
Practices substantially lessening competition
27 Contracts, arrangements, or understandings substantially 41
lessening competition prohibited 28 Covenants substantially lessening competition prohibited 42 29 Contracts, arrangements, or understandings containing 43
exclusionary provisions prohibited
30 Certain provisions of contracts, etc, with respect to prices 45 deemed to substantially lessen competition
31 Joint venture pricing exempt from application of 45 section 30 32 Certain recommendations as to prices for goods and 47 services exempt from application of section 30 33 Joint buying and promotion arrangements exempt from 47 application of section 30 34 Certain provisions of covenants with respect to prices 47 deemed to substantially lessen competition
Practices substantially lessening competition conditional upon authorisation
35 Contracts or covenants subject to authorisation not 48 prohibited under certain conditions[Repealed]
Taking advantage of market power
36 Taking advantage of market power 48 36A Taking advantage of market power in trans-Tasman 49 markets 36B Purposes may be inferred 50
37 Resale price maintenance by suppliers prohibited 50 38 Resale price maintenance by others prohibited 52 39 Recommended prices 53 40 Withholding the supply of goods 54 41 Preventing the supply of goods 54 42 Special evidentiary provisions in respect of certain resale 55 price maintenance practices 43 Statutory exceptions 55 44 Other exceptions 56 45 Exceptions in relation to intellectual property rights 58 46 Saving in respect of business acquisitions 59
47 Certain acquisitions prohibited 60 48 Baretransferofmarketdominanceexcluded[Repealed] 60 49 Application to building societies[Repealed] 61 50 Certain merger or takeover proposals require clearance 61 or authorisation[Repealed] 51 Contracts subject to condition of clearance or 61 authorisation[Repealed]
Part 4 Regulated goods or services
Subpart 1—Preliminary provisions 52 Overview of Part 61 52A Purpose of Part 61 52B Outline of Part 62 52C Interpretation 63 52D Meaning and application of claw-back 64
Subpart 2—Regulating particular goods or services 52E Overview of process if regulation imposed on goods or 65 services 52F Effect of goods or services being subject to regulation 66 52G When goods or services may be regulated 66
52H How inquiry triggered 67 52I Commission inquiry into particular goods or services 67 52J Process of inquiry 68 52K Commission’s recommendation following inquiry 69
Order in Council imposing regulation
52L Minister’s consideration 70 52M Minister’s decision and recommendation 70 52N Order in Council imposing regulation 71 52O Revocation or amendment of Order in Council 72
Commission determination about how regulation applies
52P Determinations by Commission under this section 72 52Q Amendment of section 52P determination 74
Subpart 3—Input methodologies 52R Purpose of input methodologies 74 52S How published input methodologies apply 75 52T Matters covered by input methodologies 75 52U When input methodologies must be determined 76 52V Commissionprocessfordetermininginputmethodologies 77 52W Publication of input methodologies 77 52X Amendment of input methodologies 78 52Y Review and date of publication of input methodologies 78
Appeals against input methodology determinations
52Z Appeals against input methodology determinations 79 52ZA Process for appeals 80
4
53 Input methodology applies pending outcome of appeal 80
Subpart 4—Information disclosure regulation 53A Purpose of information disclosure regulation 81 53B Effect of being subject to information disclosure 81 regulation 53C Section 52P determination to set out information 82 disclosure requirements 53D Consolidated information may also be required 83 53E Charge for providing copies to public 84 53F Limited exception to obligation to apply input 84 methodologies
Subpart 5—Negotiate/arbitrate regulation 53G Purpose of negotiate/arbitrate regulation 85 53H Overview of negotiate/arbitrate regulation 85 53I Section 52P determination to set out requirements for 86 application of negotiate/arbitrate regulation 53J Compulsory arbitration 87
Subpart 6—Default/customised price-quality regulation 53K Purpose of default/customised price-quality regulation 88 53L Overviewofdefault/customisedprice-qualityregulation 88 53M Content and timing of price-quality paths 88 53N Monitoring compliance with price-quality paths 90
53O Section 52P determination to set out requirements of 90 default price-quality paths 53P Resetting starting prices, rates of change, and quality 91 standards
Customised price-quality paths
53Q Supplier may propose customised price-quality path 93 53R Effect of making proposal for customised price-quality 93 path 53S Preliminary assessment of proposal 94 53T Process and timing for assessing proposal 94 53U Extension of time frames 95 53V Determination setting customised price-quality path 95 53W Term of customised price-quality paths 95 53X What happens when customised price-quality path ends 95 53Y Commission’s costs relating to assessing, setting, and 96 reconsidering customised price-quality path
53Z Prioritisation by Commission 97 53ZA What happens if Commission does not make decision 97 within time frame
What happens to price-quality paths if input methodologies change
53ZB Whathappenstoprice-qualitypathsifinputmethodologies 98 change
Subpart 7—Individual price-quality regulation 53ZC Price-quality path for individual businesses 98
Subpart 8—Miscellaneous provisions 53ZD Powers of Commission under this Part 99 53ZE Levies 100 53ZF Material may be incorporated by reference 102 53ZG Power to exempt disclosure of commercially sensitive 102 information
Subpart 9—Electricity lines services
Application, overview, and interpretation
54 Overview of how subpart applies 103 54A Overview of when subpart applies 103 54B Interpretation for subpart 103 54C Meaning of electricity lines services 104 54D Definition of consumer-owned 106
Imposition of regulation under this Part
54E Electricity lines services declared to be regulated 109 54F All electricity lines services are subject to information 110 disclosure regulation 54G Certain electricity lines services are also subject to 110 default/customised price-quality regulation
54H How exempt status can be lost and default/customised 110 price-qualityregulationcanbeappliedtoconsumer-owned suppliers
54I Commission must make section 52P determination 112 specifying how subpart applies 54J Section 52P determinations setting out default 112 price-quality paths applying from 1 April 2009 54K Section 52P determinations setting out default 113 price-quality paths applying from 1 April 2010
54L Administrative settlements made before 1 April 2009 113 (other than with Transpower)
54M Administrative settlements with Transpower made before 114 1 April 2009
54N Breaches of thresholds and default price-quality paths 115 before 1 April 2010
54O Breachesofcontrolimposed,oradministrativesettlements 116 entered into, after 1 April 2009
54P Proposals for customised price-quality paths 116
Transpower grid upgrade plans and capital expenditure proposals
54R Approval of Transpower’s grid upgrade plans 117
54S Commission to prepare input methodology for capital 119 expenditure proposals
54T Procedure before jurisdiction order can be 119 made[Repealed]
54U Levies during transition in jurisdiction[Repealed] 120
Interface with Electricity Industry Act 2010
54V Impact of certain decisions made under Electricity 120 Industry Act 2010
54W Savings provision relating to existing information 121 disclosure requirements
54X Savings provision for existing levy regulations for 122 electricity lines businesses
Subpart 10—Gas pipeline services
55 Overview of subpart 122 55A Meaning of gas pipeline services 123
Imposition of regulation under this Part
55B Gas pipeline services declared to be regulated 124
55C All gas pipeline services are subject to information 124 disclosure regulation
55D All gas pipeline services are subject to price-quality 125 regulation
55E Commission must make section 52P determination 125 specifying how subpart applies 55F Section 52P determinations setting out first default 125 price-quality paths
Services controlled by virtue of Commerce (Control of Natural Gas Services) Order 2005
55G Existing order, authorisations, and undertakings continue 126 to apply until 1 July 2012 (or earlier expiry) 55H How price-quality regulation under this Part applies after 127 1 July 2012 (or earlier expiry)
55I Impact of certain decisions made under Gas Act 1992 128
55J SavingsprovisionuntilCommissionpublishesinformation 129 disclosure requirements
55K Savings provision for existing levy regulations for 129 services controlled under Commerce (Control of Natural Gas Services) Order 2005
56 Overview of subpart 130 56A Meaning of specified airport services 130
Imposition of regulation under this Part
56B Specified airport services declared to be regulated 131 56C Specified airport services are subject to information 131
disclosure regulation 56D Duty to also disclose to Secretary of Transport 132 56E Commission must make determination specifying how 132
How information disclosure regulation applies
56F Transitional provision until Commission publishes 132 information disclosure requirements 56G Transitional provision requiring review after new prices 133
set 57 Commission process[Repealed] 133 57A Technical provisions relating to declaration of 133
control[Repealed] 57B Records to be kept for control purposes[Repealed] 133
57C OtherActsrelatingtopricecontrolnotaffected[Repealed] 133 57CA Impact of certain decisions made under Gas Act 134 1992 [Repealed]
Part 4A Provisions applicable to electricity industry
[Repealed] 57D Interpretation[Repealed] 134 57DAA Meaning of electricity lines business[Repealed] 134 57DAAB Meaning of electricity supply business[Repealed] 134 57DA BodythatexercisesjurisdictionunderthisPart[Repealed] 134 57DB Transfer of jurisdiction in respect of 135 Transpower[Repealed] 57DC Transfer of jurisdiction relating to other large electricity 135 lines businesses[Repealed] 57DD Procedure before jurisdiction order can be 135 made[Repealed] 57DE Levies during transition in jurisdiction[Repealed] 135 57DF Ministerial powers[Repealed] 135
Subpart 1—Controlled goods or services
[Repealed] 57E Purpose[Repealed] 136 57F Commission, not Minister, may declare that goods or 136 services supplied by large electricity lines businesses are controlled[Repealed] 57G Thresholds for declaration of control[Repealed] 136 57GA Incorporation by reference of material in 136 thresholds[Repealed] 57GB Effect of amendments to, or replacement of, material 137 incorporated by reference in thresholds[Repealed] 57GC Amendments to, or replacement of, material incorporated 137 by reference to be of same general character as original material[Repealed] 57GD Proof of material incorporated by reference[Repealed] 137 57GE Effect of expiry of material incorporated by 137 reference[Repealed] 57GF Requirement to consult[Repealed] 137 57GG Accesstomaterialincorporatedbyreference[Repealed] 138 57H Process for making decisions on declaration of 138 control[Repealed] 57I Process before declaration made[Repealed] 138 57J Effect of declaration of control[Repealed] 138
9
57K Priorities[Repealed] 138 57L Maximumof5yearsfordurationofdeclaration[Repealed] 138 57M Authorisations and undertakings[Repealed] 139 57MA Impact of certain decisions made under Electricity Act 139
1992[Repealed] 57N Commission may lift control[Repealed] 139
Subpart 2—Transpower’s pricing methodology
57O Commission may be required to authorise Transpower’s 139 pricing methodology[Repealed] 57P Authorisations in respect of Transpower’s pricing 140
methodology[Repealed] 57Q Authorisations and undertakings[Repealed] 140 57R Enforcement of authorisations[Repealed] 140 57S Revocation of authorisations[Repealed] 140
Subpart 3—Information disclosure
[Repealed] 57T Information disclosure[Repealed] 140 57U Information to be supplied to Commerce 140
Commission[Repealed] 57V CommerceCommissiontopublishsummaries[Repealed] 141 57W Reasonable charge may be imposed for providing copies 141
Recalibration of asset values of large electricity line owners [Repealed] 57X Purpose of recalibrations[Repealed] 141 57Y Interpretation[Repealed] 141 57Z Large electricity line owners must supply valuation to 142
Commerce Commission[Repealed] 57ZA Comprehensive audit of asset values of large electricity 142
line owners[Repealed] 57ZB Procedureafterauditofassetvaluescarriedout[Repealed] 142 57ZC Outcome of audit of asset values[Repealed] 142
Review of valuation methodologies [Repealed] 57ZD Review of valuation methodologies[Repealed] 142
57ZE Process when carrying out review of valuation 142 methodologies[Repealed]
[Repealed] 57ZF Powers of Commission[Repealed] 143 57ZG Powers of entry and inspection[Repealed] 143 57ZH Authorised persons to prove identity[Repealed] 143 57ZI Offence to obstruct authorised persons[Repealed] 143 57ZJ Other offences[Repealed] 144 57ZK Levy of electricity lines businesses[Repealed] 144
Part 5 Authorisations and clearances
58 Commission may grant authorisation for restrictive trade 144 practices 58A Effect of authorisation 145 58B Additional provisions relating to authorisations 147 59 Contracts or covenants subject to authorisation not 148 prohibited under certain conditions 59A When Commission may grant authorisation 148 59B Contraventions not prevented by granting of authorisation 149 under section 59 or section 59A 60 Procedure for applications for authorisation of restrictive 149 trade practices 61 Determination of applications for authorisation of 151 restrictive trade practices 62 Commission to prepare draft determination in relation to 153 restrictive trade practices 63 Commission may grant provisional 154 authorisation[Repealed] 64 Procedure at conference 154 65 Commission may vary or revoke authorisations 155
66 Commissionmaygiveclearancesforbusinessacquisitions 156 67 Commission may grant authorisations for business 157 acquisitions 68 Provisions applying to applications for clearances and 159 authorisations for business acquisitions 69 Effect of clearance or authorisation 159 69A Commission may accept undertakings 160
11
69AB Authorisation or clearance void if undertaking 160 contravened 69AC Variation of undertaking 160 69B Conferences in relation to business acquisitions 161
Authorisations in respect of controlled goods or services [Repealed]
70 Authorisations in respect of prices, revenues, and quality 162 standards[Repealed] 70A ConsiderationstobeobservedbyCommission[Repealed] 162 70B Procedure for making authorisations[Repealed] 162 70C Remedies and penalties if overcharging or quality 162 standards breached[Repealed] 70D Terms of authorisations[Repealed] 163 70E Investigations and audits[Repealed] 163 70F Revocation and amendment of authorisations[Repealed] 163 71 Provisional authorisations[Repealed] 163 72 Alternative undertakings[Repealed] 163 73 Conferences in relation to authorisations about controlled 163 goods or services[Repealed] 74 Levies[Repealed] 163
Part 6 Enforcement, remedies, and appeals
74AA Cease and desist Commissioners 164 74A Commissioner may make cease and desist orders 165 74B Investigation, notice, and opportunity to be heard 165 74C Procedure at cease and desist hearing 166 74D Pecuniary penalties for contravention of cease and desist 167 order
75 Jurisdiction of High Court 167 76 Jurisdiction of District Courts 169 77 Additional lay members of High Court for purposes 169 of appellate jurisdiction in respect of Commission determinations 78 Lay members of High Court in certain cases 171 79 Evidence not otherwise admissible 173
Proceedings for pecuniary penalties
79A Proceedings for pecuniary penalties 173
79B Relationship between pecuniary penalties and criminal 174 liability
80 Pecuniary penalties 174 80A Bodycorporatenottoindemnifycertainpersonsinrespect 176 of pecuniary penalties 80B Pecuniary penalties for contravention of section 80A 176 80C Court may order certain persons to be excluded from 177 management of body corporate 80D Application for order under section 80C 178 80E Offence to act in contravention of order made under 178 section 80C 81 Injunctions may be granted by court for contravention of 179 Part 2 82 Actions for damages for contravention of Part 2 179 82A Exemplary damages for contravention of Part 2 180
83 Pecuniary penalties 180 84 Injunctions may be granted by court for contravention of 181 Part 3 or undertaking 84A Actions for damages for contravention of Part 3 183 85 Court may order divestiture of assets or shares in respect 184 of contravention of Part 3 85A Pecuniary penalties for contravention of undertaking 184 85B Court may order divestiture of assets or shares in respect 186 of contravention of undertaking 85C Matters court must not take into account under 186 sections 85A and 85B
86 Pecuniarypenaltyforcontraveninginformationdisclosure 187 requirement 86A Order requiring information disclosure requirement to be 188 complied with 86B Offences relating to information disclosure regulation 188 86C Orders where negotiate/arbitrate regulation applies 189 87 Pecuniary penalty for contravening price-quality 189 requirements 87A Compensation for contravention of price-quality 191 requirement 87B Offence relating to price-quality regulation 191
87C Injunction and other orders relating to price-quality 192 regulation
88 General provisions relating to granting of injunctions 192 88A When undertaking as to damages not required by 193 Commission 89 Other orders 194 90 Conduct by servants or agents 195
Appeals from determinations of Commission
91 Appeals in relation to determinations by Commission 196 92 Persons entitled to appeal 197 93 Determination of appeals 198 94 Court may refer appeals back for reconsideration 199 95 Provisions pending determination of appeal 199 96 Court may order proceedings to be heard in private 199 97 Appeal to Court of Appeal in certain cases 200
Part 7 Miscellaneous provisions
98 Commission may require person to supply information or 201 documents or give evidence 98A Power to search 201 98B Powers conferred by warrant 202 98C Warrant to be produced 203 98D Other duties of person who executes a warrant 203 98E Duty to assist 204 98F Power to inspect and take copies of documents, etc 204 98G Commission may exercise powers notwithstanding other 205 proceedings 98H Supply of information and documents in relation to 205 section 36A 99 Powers of Commission to take evidence 206 99A Commission may receive information and documents 207 on behalf of Australian Competition and Consumer Commission 100 Powers of Commission to prohibit disclosure of 207 information, documents, and evidence 100A Commission may state case for opinion of High Court 208 101 Notices 209 102 Service of notices 209 103 Offences 210 104 Determinations of Commission 211
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105 Restriction on delegation 211 106 Proceedings privileged 212 106A Judicial notice 214 107 Annual report[Repealed] 215 108 Regulations 215 109 Commission may prescribe forms 216 110 Repeals, revocations, savings, and consequential 216
amendments 111 Transitional provisions in respect of certain contracts, 217 arrangements, or understandings
112 Transitional provisions in respect of goods and 218 services subject to price control under Commerce Act 1975[Repealed]
113 Transitional provisions in respect of goods and services 218 subject to price restraint under regulations made under Commerce Act 1975[Repealed]
114 Transitional provisions in respect of milk 218 pricing[Repealed] 115 Savings in respect of certain provisions of Commerce 218 Act 1975[Repealed] 116 Winding up of Commerce Commission established under 218 Commerce Act 1975[Repealed]
117 Members of Commerce Commission established 218 under Commerce Act 1975 deemed to be members of Commission[Repealed]
118 Lay members of High Court appointed pursuant to 219 Commerce Act 1975 deemed to be lay members of High Court appointed under this Act[Repealed]
Schedule 1 219 Classes of merger or takeover proposals requiring prior clearance or authorisation by the Commission
Schedule 2 220 Enactments amended
Schedule 3 221 Enactments repealed
Schedule 4 222 Orders and notices revoked
Schedule 5 224 Material incorporated by reference Schedule 6 228 Exemptions from Part 4 in respect of specific pipelines
Title [Repealed]
Title: repealed, on 26 May 2001, by section 3 of the Commerce Amendment Act 2001 (2001 No 32).
[Repealed]
1 Short Title and commencement
- (1)
- This Act may be cited as the Commerce Act 1986.
- (2)
- This Act shall come into force on 1 May 1986.
1A Purpose
The purpose of this Act is to promote competition in markets for the long-term benefit of consumers within New Zealand. Section 1A: inserted, on 26 May 2001, by section 4 of the Commerce
Amendment Act 2001 (2001 No 32).
2 Interpretation
(1) In this Act, unless the context otherwise requires,— accountingperiodhasthesamemeaningasin section2(1) of
theFinancialReportingAct1993,exceptthateveryreference to an entity is a reference to a body corporate acquire,—
- (a)
- inrelationtogoods,includesobtainbywayofgift,purchase, or exchange; and also includes take on lease, hire, or hire purchase:
- (b)
- in relation to services, includes accept:
- (c)
- in relation to interests in land, includes obtain by way
of gift, purchase, exchange, lease or licence arriveat, in relation toan understanding, includes reach,and enter into
assets includes intangible assets associate member means a member appointed under section 11(1)
authorisationmeansanauthorisationgrantedbytheCommissionunder Part5 ,orbythecourtonappealunder Part6 against a determination of the Commission
Authority means the Electricity Authority established under the Electricity Industry Act 2010 business means any undertaking—
- (a)
- that is carried on for gain or reward; or
- (b)
- in the course of which—
- (i)
- goods or services are acquired or supplied; or
- (ii)
- any interest in land is acquired or disposed of— otherwise than free of charge
chairperson means the chairperson of the Commission clearance means a clearance givenby the Commission under Part 5, or by the court on appeal under Part 6 against a deter mination of the Commission
Commission—
- (a)
- means the Commerce Commission established under Part 1; or
- (b)
- for the purposes of determining any matter or class of matter specified in a direction under section 16(1), means the Division of the Commission specified in the direction in accordance with section 16(5)
Commissioner means a Commissioner appointed under sec tion 74AA(1)
court means the High Court of New Zealand covenant means a convenant (including a promise not under seal) annexed to or running with an estate or interest in land (whetheratlaworinequityandwhetherornotforthebenefit of other land); and proposed covenant has a corresponding meaning
credit instrument means any agreement (whether in writing or not) acknowledging an obligation to pay a sum or sums of money on demand or at any future time or times
deputy chairperson means the deputy chairperson of the Commission document means a document in any form whether signed or initialled or otherwise authenticated by its maker or not; and includes—
- (a)
- any writing on any material:
- (b)
- anyinformationrecordedorstoredbymeansofanytape recorder, computer, or other device; and any material subsequently derived from information so recorded or stored:
- (c)
- any label, marking, or other writing that identifies or describes any thing of which it forms part, or to which it is attached by any means:
- (d)
- any book, map, plan, graph, or drawing:
- (e)
- any photograph, film, negative, tape, or other device in which 1 or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced giveeffectto,inrelationtoaprovisionofacontract,arrangement, or understanding, includes—
- (a)
- doanactorthinginpursuanceoforinaccordancewith that provision:
- (b)
- enforce or purport to enforce that provision goods—
- (a)
- means personal property of every kind (whether tangible or intangible); and
- (b)
- includes—
- (i)
- ships, aircraft, and vehicles:
- (ii)
- animals, including fish:
- (v)
- to avoid doubt, water and computer software local authority includes every local authority andevery pub licbodyorotherauthoritycreatedbyorpursuanttoanypublic Act or local Act member of the Commission—
- (a)
- means a member appointed under section 9(2); and
- (b)
- means the Telecommunications Commissioner appointedunder section9 oftheTelecommunicationsAct 2001; and
- (c)
- in the circumstances in section 11(3), includes an asso
ciate member Minister meanstheMinisteroftheCrownwho,undertheauthority of anywarrantorwith the authorityofthe PrimeMinister,isforthetimebeingresponsiblefortheadministrationof this Act
person,includesalocalauthority,andanyassociation ofper
sons whether incorporated or not place includesanypremises,building,aircraft,ship,carriage, vehicle, or receptacle
prescribed meansprescribedbyregulationsunderthisActor
by the Commission price, includes valuable consideration in any form, whether directorindirect;andincludesanyconsiderationthatineffect relates to the acquisition or supply of goods or services or the acquisition or disposition of any interest in land, although ostensibly relating to any other matter or thing
provision, in relation to an understanding or arrangement, means any matter forming part of or relating to the understanding or arrangement
servicesincludesanyrights(includingrightsinrelationto,and interests in, real or personal property), benefits, privileges, or facilities that are or are to be provided, granted, or conferred intrade;and,without limiting the generalityoftheforegoing, also includes the rights, benefits, privileges, or facilities that are or are to be provided, granted, or conferred under any of the following classes of contract:
- (a)
- a contract for, or in relation to,—
- (i)
- the performance of work (including work of a professionalnature),whetherwithorwithoutthe supply of goods; or
- (ii)
- theprovisionof,ortheuseorenjoymentoffacilitiesfor,accommodation,amusement,thecareof persons or animals or things, entertainment, instruction, parking, or recreation; or
- (b)
- acontractofinsurance,includinglifeassurance,andlife reassurance:
- (c)
- a contract between a bank and a customer of the bank:
- (d)
- any contract for or in relation to the lending of money orgrantingofcredit,orthemakingofarrangementsfor thelendingofmoneyorgrantingofcredit,orthebuying ordiscounting of a creditinstrument,orthe acceptance of deposits;—
but does not include rights or benefits in the form of the supply of goods or the performance of work under a contract of service
sharemeansashareinthesharecapitalofacompanyorother body corporate, whether or not it carries the right to vote at general meetings; and includes—
- (a)
- a beneficial interest in any such share:
- (b)
- apowertoexercise,orcontroltheexerciseof,arightto voteattachingtoanysuchsharethatcarriestherightto vote at meetings of the company:
- (c)
- apowertoacquireordisposeof,orcontroltheacquisition or disposition of, any such share:
- (d)
- a perpetual debenture and perpetual debenture stock supply,—
- (a)
- in relation to goods, includes supply (or resupply) by wayofgift,sale,exchange,lease,hire,orhirepurchase; and
- (b)
- in relation to services, includes provide, grant, or con
fer;— and supply as a noun, supplied, and supplier have corresponding meanings
trade means any trade, business, industry, profession, occupation, activity of commerce, or undertaking relating to the supplyoracquisitionofgoodsorservicesortothedisposition or acquisition of any interest in land
turnovermeansthetotalgrossrevenues(exclusiveofanytax requiredtobecollected)receivedorreceivablebyabodycor
porate in an accounting period as a result of trading by that body corporate within New Zealand working day means any day of the week other than—
- (a)
- Saturday,Sunday,GoodFriday,EasterMonday,Anzac Day, Labour Day, the Sovereign’s birthday, and Waitangi Day; and
- (b)
- a day in the period commencing with 25 December in any year and ending with 15 January in the following year.
(1A) In this Act (except sections 36, 36A, and 47(3) and (4)) substantial means real or of substance.
(2) In this Act,—
- (a)
- a reference to engaging in conduct shall be read as a referencetodoingorrefusingtodoanyact,including—
- (i)
- the entering into, or the giving effect to a provision of, a contract or arrangement; or
- (ii)
- thearrivingat,orthegivingeffecttoaprovision of, an understanding; or
- (b)
- areferenceto conduct,whenthatexpressionisusedas a noun otherwise than as mentioned in paragraph (a), shallbereadasareferencetothedoingof,ortherefusing to do, any act, including—
- (i)
- the entering into, or the giving effect to a provision of, a contract or arrangement; or
- (ii)
- thearrivingat,orthegivingeffecttoaprovision of, an understanding; or
- (c)
- areferencetorefusingtodoanactincludesareference to—
- (i)
- refraining (otherwise than inadvertently) from doing that act; or
- (ii)
- making it known that that act will not be done:
- (d)
- areferencetoapersonofferingtodoanact,ortodoan act on a particular condition, includes a reference to the person making it known that the person will accept applications, offers, or proposals for the person to do
that act or to do that act on that condition, as the case may be.
- (3)
- WhereanyprovisionofthisActisexpressedtorenderaprovisionofacontractoracovenantunenforceableiftheprovision of the contract or the covenant has or is likely to have a particular effect, that provision of this Act applies in relation to theprovisionofthecontractorthecovenantatanytimewhen theprovisionofthecontractorthecovenanthasorislikelyto have that effect, notwithstanding that—
- (a)
- at an earlier time the provision of the contract or the covenantdidnothavethateffectorwasnotregardedas likely to have that effect; or
- (b)
- theprovisionofthecontractorthecovenantwillnotor may not have that effect at a later time.
- (4)
- In this Act—
- (a)
- a reference to the acquisition of goods includes a reference to the acquisition of property in, or rights in relation to, goods in pursuance of a supply of the goods:
- (b)
- a reference to the supply or acquisition of goods or services includes a reference to agreeing to supply or acquire goods or services:
- (c)
- a reference to the supply or acquisition of goods includesareferencetothesupplyoracquisitionofgoods together with other property or services or both:
- (d)
- areferencetothe supplyoracquisitionofservices includes a reference to the supply or acquisition of services together with property or other services or both:
- (e)
- a reference to the resupply of goods acquired from a person includes a reference to—
- (i)
- a supply of the goods to another person in an altered form or condition; and
- (ii)
- a supply to another person of other goods in which the goods have been incorporated.
- (5)
- For the purposes of this Act—
- (a)
- aprovisionofacontract,arrangementorunderstanding, or a covenant shall be deemed to have had, or to have, a particular purpose if—
- (i)
- the provision was or is included in the contract, arrangement or understanding, or the covenant was or is required to be given, for that purpose orpurposesthatincludedorincludethatpurpose; and
- (ii)
- that purpose was or is a substantial purpose:
- (b)
- apersonshallbedeemedtohaveengaged,ortoengage, inconductforaparticularpurposeoraparticularreason if—
- (i)
- that person engaged or engages in that conduct forthatpurposeorreasonorforpurposesorreasonsthatincludedorincludethatpurposeorreason; and
- (ii)
- thatpurposeorreasonwasorisasubstantialpurpose or reason.
- (6)
- In this Act—
- (a)
- areferencetoacontractshallbeconstruedasincluding a reference to a lease of, or a licence in respect of, any land or a building or part of a building, and shall be so construednotwithstandinganyexpressreferenceinthis Act to any such lease or licence:
- (b)
- a reference to making or entering into a contract, in relation to such a lease or licence, shall be read as a reference to granting or taking the lease or licence:
- (c)
- areferencetoapartytoacontract,inrelationtosucha lease or licence, shall be read as including a reference toanypersonboundby,orentitledtothebenefitof,any provision contained in the lease or licence.
- (7)
- For the purposes of this Act, any 2 bodies corporate are to be treated as interconnected if—
- (a)
- one of them is a body corporate of which the other is a subsidiary (within the meaning of sections 158 and 158AoftheCompaniesAct1955or sections5 and 6 of the Companies Act 1993, as the case may be); or
- (b)
- both of them are subsidiaries (within the meaning of those sections) of the same body corporate; or (ba) both of them are entities referred to by any of the paragraphs (other than paragraph (e)) of the definition of transferor in section 2(1) of the Health Sector (Trans fers) Act 1993; or
- (c)
- both of them are interconnected with bodies corporate that,inaccordancewithparagraph(a)orparagraph(b), are interconnected—
and interconnected bodies corporate has a corresponding meaning.
(7A) For the purposes of subsection (7)(a) and (b), no body corporate shall be regarded as a subsidiary (within the meaning of sections158and158AoftheCompaniesAct1955or sections 5 and 6 oftheCompaniesAct1993,asthecasemaybe)ofthe Crown.
- (8)
- For the purposes of this Act—
- (a)
- anycontractorarrangemententeredinto,orunderstandingarrivedatbyanassociationorbodyofpersons,shall be deemed to have been entered into or arrived at by all the persons who are members of the association or body:
- (b)
- any recommendation made by an association or body of persons to its members or to any class of its members shall, notwithstanding anything to the contrary in the constitution or rules of the association or body of persons, be deemed to be an arrangement made between those members or the members of that class and between the association or body of persons and those members or the members of that class.
- (9)
- Nothing in subsection (8) applies to—
- (a)
- any member of an association or body of persons who expressly notifies the association or body in writing thathedisassociateshimselffromthecontract,arrangement, or understanding or any provision thereof and who does so disassociate himself:
- (b)
- to any member of an association or body of persons whoestablishesthathehadnoknowledgeandcouldnot reasonably have been expected to have had knowledge of the contract, arrangement, or understanding.
Compare: 1975No113ss2(1),67A(3);1976No67ss22,23(3);1979No140 s 2; 1983 No 144 s 26; Trade Practices Act 1974 ss 4, 4C, 4F, 4H (Aust)
Section2(1) accountingperiod : inserted,on26May2001,bysection5ofthe Commerce Amendment Act 2001 (2001 No 32).
Section 2(1) assets : inserted, on 1 January 1991, by section 2(1) of the Commerce Amendment Act 1990 (1990 No 41).
Section 2(1) associate member : inserted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section 2(1) Authority : inserted, on 1 November 2010, by section 146(1) of the Electricity Industry Act 2010 (2010 No 116).
Section 2(1) chairman : repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section 2(1) chairperson : inserted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section 2(1) Commission : substituted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section 2(1) Commissioner : substituted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section 2(1) deputy chairman : repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section2(1)deputychairperson : inserted,on25January2005,bysection200 of the Crown Entities Act 2004 (2004 No 115).
Section 2(1) Electricity Commission: repealed, on 1 November 2010, by section 146(2) of the Electricity Industry Act 2010 (2010 No 116).
Section 2(1) goods: substituted, on 8 July 2003, by section 3(1) of the Commerce Amendment Act 2003 (2003 No 32).
Section2(1)memberoftheCommission: substituted,on25January2005,by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section 2(1) Minister : substituted, on 26 May 2001, by section 5 of the Commerce Amendment Act 2001 (2001 No 32).
Section 2(1) officer of the Commission: repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section 2(1) place : inserted, on 1 July 1990, by section 2(2) of the Commerce Amendment Act 1990 (1990 No 41).
Section2(1) services paragraph (a)(iv): added, on 8 July 2003,by section 3(2) of the Commerce Amendment Act 2003 (2003 No 32).
Section 2(1) share : inserted, on 1 January 1991, by section 2(3) of the Commerce Amendment Act 1990 (1990 No 41).
Section2(1) share paragraph(b): amended,on1July1994,bysection2ofthe Company Law Reform (Transitional Provisions) Act 1994 (1994 No 16).
Section 2(1) substantial : repealed, on 1 January 1991, by section 2(4) of the Commerce Amendment Act 1990 (1990 No 41).
Section2(1)turnover : inserted,on26May2001,bysection5oftheCommerce Amendment Act 2001 (2001 No 32).
Section 2(1A): inserted, on 1 January 1991, by section 2(5) of the Commerce Amendment Act 1990 (1990 No 41).
Section 2(1A): amended, on 26 May 2001, by section 9(2) of the Commerce Amendment Act 2001 (2001 No 32).
Section2(7): substituted, on 1 January 1991, by section 2(6) oftheCommerce Amendment Act 1990 (1990 No 41).
Section2(7)(a): substituted,on 1 July 1994, by section2oftheCompany Law Reform (Transitional Provisions) Act 1994 (1994 No 16).
Section 2(7)(b): amended, on 1 July 1994, by section 2 of the Company Law Reform (Transitional Provisions) Act 1994 (1994 No 16).
Section 2(7)(ba): inserted, on 1 January 2001, by section 107(1) of the New Zealand Public Health and Disability Act 2000 (2000 No 91).
Section2(7A):inserted,on9December1994,bysection2(1)oftheCommerce Amendment Act 1994 (1994 No 135).
Section 2(7A): amended, on 1 January 2001, by section 107(2) of the New Zealand Public Health and Disability Act 2000 (2000 No 91).
3 Certain terms defined in relation to competition
(1) In this Act competition means workable or effective competition.
(1A) Every reference in this Act, except the reference in sec tion 36A(2)(b) and (c), to the term market is a reference to a market in New Zealand for goods or services as well as other goods or services that, as a matter of fact and commercial common sense, are substitutable for them.
(1B) The reference in section 36A(2)(b) to the term market, in relation to a market in Australia, is a reference to a market in Australia for goods or services as well as other goods or services that, as a matter of fact and commercial common sense, are substitutable for them.
(1C) Thereferenceinsection36A(2)(c)totheterm marketinrelation to a market in New Zealand and Australia, is a reference toamarketinNewZealandandAustraliaforgoodsorservices as well as other goods or services that, as a matter of fact and commercial common sense, are substitutable for them.
- (2)
- In this Act, unless the context otherwise requires, references tothe lessening of competition include references tothe hindering or preventing of competition.
- (3)
- ForthepurposesofthisAct,theeffectoncompetitioninamarket shall be determined by reference to all factors that affect competition in that market including competition from goods or services supplied or likely to be supplied by persons not resident or not carrying on business in New Zealand.
- (4)
- In sections 27 and 28, a reference to a market in relation to the purpose or effect in respect of competition of a provision
ofacontract,arrangement,orunderstanding,orofacovenant, or of conduct, shall be read as including a reference to—
- (a)
- a market in which a person who is a party to the contract, arrangement, or understanding, or any interconnected body corporate, or, as the case may be, the person or any associated person (within the meaning of section 28(7)) who requires the giving of, or gives the covenant, supplies or acquires or is likely to supply or acquire, or would, but for that provision, covenant, or conduct, supply or acquire or be likely to supply or acquire goods or services; and
- (b)
- anyothermarketinwhichthosegoodsorservicesmay be supplied or acquired.
(5) For the purposes of section 27, a provision of a contract, ar rangement, or understandingshallbedeemed tohaveortobe likelytohavetheeffectofsubstantiallylesseningcompetition in a market if that provision and—
- (a)
- the other provisions of that contract, arrangement, or understanding; or
- (b)
- the provisions of any other contract, arrangement, or understanding to which that person or any interconnected body corporate is a party—
takentogether,haveorarelikelytohavetheeffectofsubstantially lessening competition in that market.
(6) Forthepurposesof section28 ,acovenantshallbedeemedto haveortobelikelytohavetheeffectofsubstantiallylessening competition in a market if—
- (a)
- that covenant; and
- (b)
- any other covenant to the benefit of which that person or an associated person (within the meaning of section 28(7)) is entitled or would be entitled if the covenant were enforceable—
takentogether,haveorarelikelytohavetheeffectofsubstantially lessening competition in that market.
- (7)
- Forthepurposesof sections27 and 28 ,theengaginginconduct shall be deemed to have or to be likely to have the effect of substantially lessening competition in a market if— (a) the engaging in that conduct; and
- (2)
- Without limiting subsection (1), section 36A extends to the engaginginconductoutsideNewZealandbyanypersonresidentorcarryingonbusinessinAustraliatotheextentthatsuch conduct affects a market, not being a market exclusively for services, in New Zealand.
- (3)
- Without limiting subsection (1), section 47 extends to the ac- quisitionoutsideNewZealandbyaperson(whetherornotthe person is resident or carries on business in New Zealand) of theassetsofabusinessorsharestotheextentthattheacquisition affects a market in New Zealand. Section 4: substituted, on 1 July 1990, by section 5 of the Commerce
Amendment Act 1990 (1990 No 41).
Section 4(3): added, on 2 September 1996, by section 2 of the Commerce Amendment Act 1996 (1996 No 113).
5 Application of Act to the Crown
- (1)
- Subject to this section, this Act shall bind the Crown in so far as the Crown engages in trade.
- (2)
- TheCrownshallnotbeliabletopayapecuniarypenaltyunder section 80.
- (3)
- The Crown shall not be liable to be prosecuted for an offence against this Act.
- (4)
- WhereitisallegedthattheCrownhascontravenedanyprovision of this Act and that contravention constitutes an offence, the Commission or the person directly affected by the contraventionmayapplytothecourtforadeclarationthattheCrown hascontravenedthatprovision;and,ifthecourtissatisfiedbeyond a reasonable doubt that the Crown has contravened that provision, it may make a declaration accordingly. Compare: 1975 No 113 s 20B; 1979 No 140 s 12; Trade Practices Act 1974
s 2A (Aust)
6 Application of Act to Crown corporations
- (1)
- ThisActappliestoeverybodycorporatethatisaninstrument of the Crown in respect of the Government of New Zealand engaged in trade.
- (2)
- Notwithstanding any enactment or rule of law, proceedings under Part6 maybebroughtagainstabodycorporatereferred to in subsection (1). Compare: 1975 No 113 s 20A; 1979 No 140 s 11
6A Special provisions relating to application of Act to the Crown in right of Australia and to Australian Crown corporations Section 36A, and Parts 6 and 7, in so far as they relate to a contravention of, or confer powers that may be exercised in relation to, that section, apply to—
- (a)
- the Crown in right of the Commonwealth of Australia, each of the States of the Commonwealth of Australia, and the Northern Territory and the Australian Capital Territory, in so far as the Crown engages in trade; and
- (b)
- every body corporate that is an authority of the CommonwealthofAustraliawithinthemeaningofsection4 oftheTradePracticesAct1974oftheParliamentofthe Commonwealth of Australia in so far as it engages in trade; and
- (c)
- every body corporate established for a purpose of a State of the Commonwealth of Australia by or under a law of that State in so far as it engages in trade; and
- (d)
- everybodycorporateinwhichaStateoftheCommonwealth of Australia or in which a body corporate referred to in paragraph (c) has a controlling interest in so far as it engages in trade.
Section6A:inserted,on1July1990,by section6 oftheCommerceAmendment Act 1990 (1990 No 41).
Section 6A(b): amended, on 2 September 1996, by section 13(2) of the Commerce Amendment Act 1996 (1996 No 113).
6B Crown and Crown corporations not immune from jurisdiction in relation to certain provisions of Trade Practices Act 1974 Neither the Crown nor a body corporate that is an instrument of the Crown in respect of the Government of New Zealand is immune, and neither the Crown nor such a body corporate may claim immunity, from the jurisdiction of the courts of New Zealand and Australia in relation to a contravention of section46AoftheTradePracticesAct1974oftheParliament of the Commonwealth of Australia and in relation to Parts VI and XII of that Act in so far as they relate to a contravention of that section. Section6B:inserted,on1July1990,by section6 oftheCommerceAmendment
Act 1990 (1990 No 41).
6C Application of Evidence Amendment Act 1980 Nothing in the Evidence Amendment Act 1980 applies in relation to the application of section 46A of the Trade Practices Act1974oftheParliamentoftheCommonwealthofAustralia or Parts VI and XII of that Act in so far as they relate to a contravention of that section. Section6C:inserted,on1July1990,by section6 oftheCommerceAmendment
Act 1990 (1990 No 41).
7 Law relating to restraint of trade and breaches of confidence not affected
- (1)
- NothinginthisActlimitsoraffectsanyruleoflawrelatingto restraintoftradenotinconsistentwithanyoftheprovisionsof this Act.
- (2)
- NothinginthisActlimitsoraffectsanyruleoflawrelatingto breaches of confidence.
- (3)
- No rule of law referred to in subsection (1) or subsection (2) affects the interpretation of anyof the provisions of this Act. Compare: Trade Practices Act 1974 s 4M (Aust)
Part 1 The Commerce Commission 8 Establishment of Commission
- (1)
- There is hereby established a commission to be called the Commerce Commission.
- (2)
- 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—
- (a)
- this Act; and
- (b)
- anyotherActthatexpresslyprovidesforthefunctions, powers, or duties of the Commission (other than the Crown Entities Act 2004).
- (3)
- [Repealed]
- (4)
- [Repealed]
Section 8(2): substituted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section8(3): repealed,on25January2005,bysection200oftheCrownEntities Act 2004 (2004 No 115).
Section8(4): repealed, on 1 July1990, by section 7 of the CommerceAmend ment Act 1990 (1990 No 41).
8A Application of Crown Entities Act 2004
- (1)
- The Commission is a Crown entity for the purposes of sec tion 7 of the Crown Entities Act 2004.
- (2)
- The Crown Entities Act 2004 applies to the Commission ex cept to the extent that this Act expressly provides otherwise.
- (3)
- MembersoftheCommissionaretheboardforthepurposesof the Crown Entities Act 2004. Section8A:inserted,on25January2005,by section200 oftheCrownEntities
Act 2004 (2004 No 115).
9 Membership of Commission
- (1)
- TheCommissionmusthavenolessthan4,andnomorethan6, members appointed in accordance with this section, and may also have associate members appointed under section 11(1).
- (2)
- Nolessthan3,andnomorethan5,ofthemembers,ofwhom at least 1 must be a barrister and solicitor of at least 5 years’ standing, must be appointed by the Governor-General in accordancewith section28(1)(b) oftheCrownEntitiesAct2004.
- (3)
- OneofthemembersmustbeappointedbytheGovernor-GeneralasTelecommunicationsCommissionerunder section9 of the Telecommunications Act 2001.
- (4)
- The Minister must not recommend a person for appointment as a member under subsection (2) unless,—
- (a)
- in the opinion of the Minister, that person is qualified for appointment, having regard to the functions of the Commission,byvirtueofthatperson’sknowledgeofor experience in industry, commerce, economics, law, ac countancy, public administration, or consumer affairs; and
- (b)
- in the case of a member who is a barrister or solicitor, the Minister has first consulted with the Attorney-General.
- (5)
- Subsections (2) and (4) do not limit section 29 of the Crown Entities Act 2004. Section9: substituted,on25January2005,bysection200oftheCrownEntities
Act 2004 (2004 No 115).
10 Terms and conditions of appointment
- (1)
- [Repealed]
- (2)
- [Repealed]
- (3)
- [Repealed]
- (4)
- [Repealed]
(5) For the purpose of providing a superannuation fund or retiring allowance for members of the Commission, sums by way ofsubsidyorcontributionmayfromtimetotimebepaid intoanysuperannuation schemewhich isregisteredunder the Superannuation Schemes Act 1989.
(6) [Repealed] Compare: 1975 No 113 ss 4(1), 10, 17B; 1979 No 140 s 9(1) Section 10(1): repealed, on 25 January 2005, by section 200 of the Crown En tities Act 2004 (2004 No 115).
Section 10(2): repealed, on 25 January 2005, by section 200 of the Crown En tities Act 2004 (2004 No 115).
Section 10(3): repealed, on 25 January 2005, by section 200 of the Crown En tities Act 2004 (2004 No 115).
Section 10(4): repealed, on 25 January 2005, by section 200 of the Crown En tities Act 2004 (2004 No 115).
Section10(5): substituted,on1April1991,bysection80oftheNationalProvi dent Fund Restructuring Act 1990 (1990 No 126).
Section 10(6): repealed, on 25 January 2005, by section 200 of the Crown En tities Act 2004 (2004 No 115).
11 Associate members
- (1)
- The Minister may from time to time appoint any person to be an associate member of the Commission. (1A) Subsection (1) applies despite section 28(1)(b) of the Crown Entities Act 2004.
- (2)
- 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 instrument.
- (3)
- Subject to subsection (4), an associate member shall be deemed to be a member of the Commission for the purposes oftheperformanceorexerciseofanyfunction,duty,orpower 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.
- (4)
- An associate member may attend and vote only at a meeting of the Commission relating to the matter or class of matters specifiedin thatmember’s notice ofappointment(includinga meeting relatingtomatters incidental to the matter orclass of matters so specified).
- (5)
- 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 sec tion 8(2).
(6) 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. Compare: 1975 No 113 s 3B; 1979 No 140 s 5; 1983 No 144 s 3 Section 11(1A): inserted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section 11(2): amended, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section11(3): amended,on15April2004,bysection3(1)(a)oftheCommerce Amendment Act 2004 (2004 No 23).
Section11(3): amended,on15April2004,bysection3(1)(b)oftheCommerce Amendment Act 2004 (2004 No 23).
Section 11(4): amended, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section11(5): added,on25January2005,bysection200oftheCrownEntities Act 2004 (2004 No 115).
Section11(6): added,on25January2005,bysection200oftheCrownEntities Act 2004 (2004 No 115).
12 Chairperson and deputy chairperson
- (1)
- 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.
- (2)
- Thechairpersonanddeputychairpersonmayonlyberemoved fromofficeaschairpersonordeputychairpersonforjustcause.
- (3)
- 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. Section 12: substituted, on 25 January 2005, by section 200 of the Crown En
tities Act 2004 (2004 No 115).
13 Termination of appointment of members
- (1)
- TheGovernor-GeneralmayremoveanymemberoftheCommissionappointedbytheGovernor-Generalfromofficeunder section 39 of the Crown Entities Act 2004.
- (2)
- The Minister may remove any associate member from office onthesamegroundsandinthesamemannerastheGovernorGeneralmayremoveamemberunder section39 oftheCrown Entities Act 2004.
- (3)
- Subsection(2)appliesdespite section39(1) oftheCrownEntities Act 2004.
- (4)
- Notwithstanding that the term of office of a member has expired or that a member has resigned that office, that person shallbedeemedtocontinueasamemberforthepurposeof—
- (a)
- completing the determination of any matter before that person,asamember,whichwascommencedbeforethe expirationofthetermofofficeorbeforetheresignation took effect, as the case may be:
- (b)
- giving reconsideration to any matter following a direc tion of the court under Part 6.
(5) Subsection (4) applies despite sections 32(3) and 45 of the Crown Entities Act 2004. Compare: 1975 No 113 s 4(2), (3); 1976 No 67 s 23(3); 1979 No 140 s 6 Section 13(1): substituted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section 13(2): substituted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section 13(3): substituted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section13(5): added,on25January2005,bysection200oftheCrownEntities Act 2004 (2004 No 115).
14 Disclosure of financial interests
[Repealed]
Section14: repealed,on25January2005,bysection200oftheCrownEntities Act 2004 (2004 No 115).
15 Meetings of Commission
- (1)
- [Repealed]
- (2)
- [Repealed] (2A) [Repealed]
- (3)
- [Repealed]
- (4)
- At any meeting of the Commission the quorum shall be 3 members.
- (5)
- Subsection (4) applies despite clause 9(1) and (2) of Sched ule 5 of the Crown Entities Act 2004.
(6) [Repealed]
(7) SubjecttotheprovisionsofthisAct,thechairpersonmaygive directionsregardingtheproceduretobefollowedatorinconnection with any meeting of the Commission. Compare: 1975 No 113 s 6; 1983 No 144 s 5(1), (2) Section 15(1): repealed, on 25 January 2005, by section 200 of the Crown En tities Act 2004 (2004 No 115).
Section 15(2): repealed, on 25 January 2005, by section 200 of the Crown En tities Act 2004 (2004 No 115).
Section 15(2A): repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section 15(3): repealed, on 25 January 2005, by section 200 of the Crown En tities Act 2004 (2004 No 115).
Section 15(4): amended, on 15 April 2004, by section 4(3) of the Commerce Amendment Act 2004 (2004 No 23).
Section 15(5): substituted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section 15(6): repealed, on 25 January 2005, by section 200 of the Crown En tities Act 2004 (2004 No 115).
Section 15(7): amended, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
16 Chairperson may direct Commission to sit in Divisions
- (1)
- Thechairpersonmay,bywritingsignedbyhim,directthatthe 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. (1A) The powers in subsection (1) are an exception to clause 14 of Schedule 5 of the Crown Entities Act 2004.
- (2)
- EachDivisionshallconsistofsuchmembersasareforthetime being assigned to that Division by the chairperson.
- (3)
- IfthemembersappointedtoanyDivisiondonotincludeeither the chairperson or the deputy chairperson, the chairperson shall from time to time nominate the member who is to be chairperson of that Division.
- (4)
- Intheabsenceofthemembersonominatedfromanymeeting oftheDivision,thememberspresentshallappointoneoftheir number to be thechairperson of the Division forthe purposes of that meeting.
- (5)
- For the purpose of the determination of a matter or class of mattersspecifiedinadirectiongivenundersubsection(1),the Commission shall be deemed to consist of the Divisionof 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.
- (6)
- A Division of the Commission may exercise powers of the Commission under this Act or any other Act notwithstanding thatanotherDivisionoftheCommissionisexercisingpowers of the Commission at the same time.
(7) Any direction given under subsection (1) may be revoked or amended by the chairperson by writing signed by him. Compare: 1975 No 113 s 7; 1976 No 67 s 7 Section16heading: amended,on25January2005,bysection200oftheCrown Entities Act 2004 (2004 No 115).
Section 16(1): amended, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section 16(1): amended, on 15 April 2004, by section 5(1) of the Commerce Amendment Act 2004 (2004 No 23).
18A Personnel policy
[Repealed]
Section18A:repealed,on25January2005,by section200 oftheCrownEntities Act 2004 (2004 No 115).
18B Equal employment opportunities
[Repealed]
Section18B:repealed,on25January2005,by section200 oftheCrownEntities Act 2004 (2004 No 115).
18C Choice of procedure
[Repealed]
Section18C:repealed, on 1December 2004,bysection72of theEmployment Relations Amendment Act (No 2) 2004 (2004 No 86).
18D Superannuation and retiring allowances
(1) [Repealed]
- (2)
- Notwithstanding anything in this Act, any person who, immediately before the commencement of this Act was assist ing the Commission by virtue of an appointment under sec tion 18(1) and was a contributor to the Government Super annuation Fund under Part 2 of the Government Superannu ation Fund Act 1956 shall be deemed, for the purposes of the Government Superannuation Fund Act 1956, to be employed inthe 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 anofficeroremployeewereGovernmentservice. Forthepurposes of the Government Superannuation Fund Act 1956, the controllingauthorityinrelationtoanysuchpersonshallbethe Commission.
- (3)
- Subject to the Government Superannuation Fund Act 1956, nothinginsubsection(2)shallentitleanypersontowhomthat subsectionappliestobecomeacontributortotheGovernment Superannuation Fund after ceasing to be a contributor to that Fund. Section18D:inserted,on1July1990,by section10 oftheCommerceAmend
ment Act 1990 (1990 No 41).
Section 18D(1): repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
19 Money to be appropriated by Parliament for purposes of this Act [Repealed] Section19: repealed,on25January2005,bysection200oftheCrownEntities Act 2004 (2004 No 115).
20 Funds of Commission
[Repealed]
Section20: repealed,on25January2005,bysection200oftheCrownEntities Act 2004 (2004 No 115).
21 Bank accounts
[Repealed]
Section21: repealed,on25January2005,bysection200oftheCrownEntities Act 2004 (2004 No 115).
22 Crown entity
[Repealed]
Section22: repealed,on25January2005,bysection200oftheCrownEntities Act 2004 (2004 No 115).
23 Investment of money
[Repealed]
Section23: repealed,on25January2005,bysection200oftheCrownEntities Act 2004 (2004 No 115).
24 Exemption from income tax The income of the Commission shall be exempt from income tax. Compare: 1975 No 113 s 19F; 1983 No 144 s 12
25 Functions of Commission in relation to dissemination of information 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—
- (a)
- thecarryingoutofthefunctionsandtheexerciseofthe powers of the Commission under this Act; and
- (b)
- the purposes and provisions of this Act.
Compare: 1975 No 113 s 11(1A); 1983 No 144 s 7; Trade Practices Act 1974 s 28(1)(a) (Aust)
26 Commission to have regard to economic policies of Government
- (1)
- In the exercise of its powers under this Act, the Commission shallhaveregardtotheeconomicpolicies of theGovernment astransmittedinwritingfromtimetotimetotheCommission by the Minister.
- (2)
- The Minister shall cause every statement of economic policy transmittedtotheCommissionundersubsection(1)tobepublished in the Gazette and laid before Parliament as soon as practicable after so transmitting it.
- (3)
- For the avoidance of doubt, a statement of economic policy transmitted to the Commission under this section is not a di rection for the purposes of Part 3 of the Crown Entities Act 2004. Compare: 1975 No 113 s 2A(1)(e); 1976 No 67 s 3; Trade Practices Act 1974
s 29 (Aust)
Section 26(1): amended, on 1 July 1990, by section 12 of the Commerce Amendment Act 1990 (1990 No 41).
Section26(3): added,on25January2005,bysection200oftheCrownEntities Act 2004 (2004 No 115).
Part 2 Restrictive trade practices
Practices substantially lessening competition
27 Contracts,arrangements,orunderstandingssubstantially lessening competition prohibited
- (1)
- 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.
- (2)
- No person shall give effect to a provision of a contract, arrangement, orunderstanding that hasthe purpose, or has or is likelytohavetheeffect,ofsubstantiallylesseningcompetition in a market.
- (3)
- Subsection (2) applies in respect of a contract or arrangement enteredinto,oranunderstandingarrivedat,whetherbeforeor after the commencement of this Act.
- (4)
- No provision of a contract, whether made before or after the commencement of this Act, that has the purpose, or has or is likelytohavetheeffect,ofsubstantiallylesseningcompetition in a market is enforceable. Compare: Trade Practices Act 1974 s 45(1), (2) (Aust)
28 Covenants substantially lessening competition prohibited
- (1)
- No person, either on his own or on behalf of an associated person, shall—
- (a)
- require the giving of a covenant; or
- (b)
- give a covenant— that has the purpose, or has or is likely to have the effect, of substantially lessening competition in a market.
- (2)
- Noperson,eitheronhisownoronbehalfofanassociatedperson,shallcarryoutorenforcethetermsofacovenantthathas the purpose, or has or is likely to have the effect, of substantially lessening competition in a market.
- (3)
- Subsection (2) applies to a covenant whether given before or after the commencement of this Act.
- (4)
- No covenant, whether given before or after the commencementofthisAct,thathasthepurpose,orhasorislikelytohave theeffectofsubstantiallylesseningcompetitioninamarketis enforceable.
- (5)
- No person shall—
- (a)
- threatentoengageinparticularconductifapersonwho, but for subsection (4), would be bound by a covenant, does not comply with the terms of the covenant; or
- (b)
- engageinparticularconductbecauseapersonwho,but for subsection (4), would be bound by a covenant, has failedtocomply,orproposesorthreatenstofailtocomply, with the terms of the covenant.
- (6)
- Where a person—
- (a)
- issues an invitation to another person to enter into a contract containing a covenant; or
- (b)
- makesanoffertoanotherpersontoenterintoacontract containing a covenant; or
- (c)
- makes it known that the person will not enter into a contractofaparticularkindunlessthecontractcontains acovenantofaparticularkindorinparticularterms,—
thatperson shall, by issuingthatinvitation, makingthatoffer, ormakingthatfactknown,bedeemedtorequirethegivingof the covenant.
(7) For the purposes of this section, 2 persons shall be taken to beassociatedwitheach other in relation to a covenantorproposed covenant if, but only if,—
- (a)
- onepersonisunderanobligation(otherwisethaninpursuanceofthecovenantorproposedcovenant),whether formal or informal, to act in accordance with the directions, instructions, or wishes of the other person in relation to the covenant or proposed covenant; or
- (b)
- the persons are interconnected bodies corporate. Compare: Trade Practices Act 1974 s 45B(1)–(3), (7) (Aust)
29 Contracts, arrangements, or understandings containing exclusionary provisions prohibited
(1) Subjecttosubsection(1A),forthepurposesofthisAct,aprovision of a contract, arrangement, or understanding is an exclusionary provision if—
- (a)
- it is a provision of a contract or arrangement entered into, or understanding arrived at, between persons of whomany2ormoreareincompetitionwitheachother; and
- (b)
- it has the purpose of preventing, restricting, or limiting the supply of goods or services to, or the acquisition of goodsorservicesfrom,anyparticularpersonorclassof persons, either generally or in particular circumstances or on particular conditions, by all or any of the parties to the contract, arrangement, or understanding, or if a party is a body corporate, by a body corporate that is interconnected with that party; and
- (c)
- theparticularpersonortheclassofpersonstowhichthe provisionrelatesisincompetitionwith1ormoreofthe partiestothecontract,arrangementorunderstandingin
43
relation to the supply or acquisition of those goods or services.
(1A) Aprovisionofacontract,anarrangement,oranunderstanding that would, but for this subsection, be an exclusionary provisionundersubsection(1)isnotanexclusionaryprovisionifit isprovedthattheprovisiondoesnothavethepurpose,ordoes nothaveorisnotlikelytohavetheeffect,ofsubstantiallylessening competition in a market.
- (2)
- For the purposes of subsection (1)(a) and (c), a person is in competition with another person if that person or any interconnected body corporate is, or is likely to be, or, but for the relevantprovision,wouldbeorwouldbelikelytobe,incompetitionwiththeotherperson,orwithaninterconnectedbody corporate, in relation to the supply or acquisitionof all orany of the goods or services to which that relevant provision relates.
- (3)
- Nopersonshallenterintoacontract,orarrangement,orarrive at an understanding, that containsan exclusionary provision.
- (4)
- No person shall give effect to an exclusionary provision of a contract, arrangement, or understanding.
- (5)
- Subsection (4) applies to an exclusionary provision of a contract or arrangement made, or understanding arrived at, whether before or after the commencement of this Act.
(6) Noexclusionaryprovisionofacontract,whethermadebefore or after the commencement of this Act, is enforceable. Compare: Trade Practices Act 1974 ss 4D, 45(1)–(3) (Aust) Section 29(1): substituted, on 1 July 1990, by section 13 of the Commerce Amendment Act 1990 (1990 No 41).
Section 29(1): amended, on 26 May 2001, by section 7(1) of the Commerce Amendment Act 2001 (2001 No 32).
Section 29(1A): inserted, on 26 May 2001, by section 7(2) of the Commerce Amendment Act 2001 (2001 No 32).
Section 29(2): amended, on 26 May 2001, by section 7(3) of the Commerce Amendment Act 2001 (2001 No 32).
Price fixing
30 Certain provisions of contracts, etc, with respect to prices deemed to substantially lessen competition
- (1)
- Without limiting the generality of section 27, a provision of a contract, arrangement, or understanding shall be deemed for the purposes of that section to have the purpose, or to have or to be likely to have the effect, of substantially lessening competition in a marketifthe provision has the purpose, or has or is likely to have the effect of fixing, controlling, or maintaining,orprovidingforthefixing,controlling,ormaintaining,of thepriceforgoodsorservices,oranydiscount,allowance,rebate, or credit in relation to goods or services, that are—
- (a)
- supplied or acquired by the parties to the contract, arrangement, or understanding, or by any of them, or by any bodies corporate that are interconnected with any of them, in competition with each other; or
- (b)
- resupplied by persons to whom the goods are supplied by the parties to the contract, arrangement, or understanding,orbyanyofthem,orbyanybodiescorporate thatareinterconnectedwithanyofthemincompetition with each other.
- (2)
- Thereferenceinsubsection(1)(a)tothesupplyoracquisition ofgoodsorservicesbypersonsincompetitionwitheachother includes a reference to the supply or acquisition of goods or services by persons who, but for a provision of any contract, arrangement, or understanding would be, or would be likely to be, in competition with each other in relation to the supply or acquisition of the goods or services. Compare: Trade Practices Act 1974 s 45A(1), (7), (8) (Aust)
31 Joint venture pricing exempt from application of section 30
(1) For the purposes of this section—
(a) joint venture means an activity in trade—
- (i)
- carried on by 2 or more persons, whether or not in partnership; or
- (ii)
- carriedonbyabodycorporateforthepurposeof enabling2ormorepersonstocarryonthatactivity jointly by means of their joint control, or by
45
meansoftheirownershipofsharesinthecapital, ofthatbodycorporateoraninterconnectedbody corporate:
(b) areferencetoacontractorarrangemententeredinto,or an understanding arrived at for the purposes of a joint venture shall, in relation to a joint venture by way of an activity carried on by a body corporate in terms of paragraph(a)(ii),bereadasincludingareferencetothe memorandumandarticlesofassociation,rules,orother document that constitute or constitutes, or is or are to constitute, that body corporate.
(2) Nothing in section 30 applies to a provision of a contract or arrangement entered into, or an understanding arrived at for thepurposesofajointventure,totheextentthattheprovision relates to—
- (a)
- thejointsupplybythepartiestothejointventure,orthe supplybythepartiestothejointventureinproportionto their respective interests in the joint venture, of goods jointly produced by those parties in pursuance of the joint venture; or
- (b)
- the joint supply by the parties to the joint venture of servicesinpursuanceofthejointventure,orthesupply by the parties to the joint venture in proportion to their respective interests in the joint venture, of services in pursuanceof,andmadeavailableasaresultof,thejoint venture; or
- (c)
- in the case of a joint venture carried on by a body corporate in terms of subsection (1)(a)(ii),—
- (i)
- the supply by that body corporate of goods producedby it in pursuance of the joint venture; or
- (ii)
- the supply by that body corporate of services in pursuanceofthejointventure,notbeingservices supplied on behalf of the body corporate by a person who is the owner of shares in the capital ofthebodycorporate,orabodycorporatethatis interconnected with such a person.
Compare: Trade Practices Act 1974 ss 4J, 45A(2) (Aust)
32 Certain recommendations as to prices for goods and services exempt from application of section 30
Nothing in section 30 applies to a provision of a contract, ar rangement, or understanding, to the extent that the provision recommends or provides for the recommending of the price for, or a discount, allowance, rebate or credit in relation to goodsorserviceswherethepartiestothecontract,orarrangement, orunderstandingincludenotlessthan50 persons (bodiescorporatethatareinterconnectedbeingcountedasasingle person) who supply or acquire, in trade, goods or services to which the provision applies. Compare: Trade Practices Act 1974 s 45A(3) (Aust)
33 Joint buying and promotion arrangements exempt from application of section 30
Nothing in section 30 applies to a provision of a contract, ar rangement, or understanding that—
- (a)
- relates to the price for goods or services to be collectivelyacquired,whetherdirectlyorindirectly,byparties to the contract, arrangement, or understanding; or
- (b)
- providesforjointadvertisingofthepricefortheresup
ply of goods so acquired. Compare: Trade Practices Act 1974 s 45A(4) (Aust)
34 Certain provisions of covenants with respect to prices deemed to substantially lessen competition
- (1)
- Withoutlimitingthegeneralityof section28 ,acovenantshall be deemed for the purposes of that section to have the purpose, or to have or to be likely to have the effect, of substantiallylesseningcompetitioninamarketifthecovenanthasthe purposeorhasorislikelytohavetheeffectoffixing,controlling,ormaintaining,orprovidingforthefixing,controllingor maintainingofthepriceforgoodsorservices,oranydiscount, allowance, rebate, or credit in relation to goods or services, that are—
- (a)
- suppliedoracquiredbythepersonsgivingthecovenant orthepersonsentitledtothebenefitofthecovenant,or by any of them, or by bodies corporate that are inter connected with any of them, in competition with each other; or
- (b)
- resupplied by persons to whom the goods are supplied by the persons giving the covenant or the persons entitled to the benefit of the covenant, or by any of them, orbybodiescorporatethatareinterconnected withany of them, in competition with each other.
- (2)
- Thereferenceinsubsection(1)(a)tothesupplyoracquisition ofgoodsorservicesbypersonsincompetitionwitheachother includes a reference to the supply or acquisition of goods or services by persons who, but for the covenant, would be in competitionwitheachotherinrelationtothesupplyoracquisition of the goods or services. Compare: Trade Practices Act 1974 s 45C (Aust)
Practices substantially lessening competitionconditional upon authorisation
35 Contracts or covenants subject to authorisation not prohibited under certain conditions [Repealed] Section35: repealed, on 26 May2001, by section 8 of the CommerceAmend ment Act 2001 (2001 No 32).
Taking advantage of market power
Heading: substituted, on 26 May 2001, by section 9(1) of the Commerce Amendment Act 2001 (2001 No 32).
36 Taking advantage of market power
- (1)
- Nothing in this section applies to any practice or conduct to which this Part applies that has been authorised under Part 5.
- (2)
- A person that has a substantial degree of power in a market must not take advantage of that power for the purpose of—
- (a)
- restricting the entry of a person into that or any other market; or
- (b)
- preventingordeterringapersonfromengagingincompetitive conduct in that or any other market; or
- (c)
- eliminating a person from that or any other market.
- (3)
- Forthepurposesofthissection,apersondoesnottakeadvantage 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.
- (4)
- For the purposes of this section, a reference to a person includes 2 or more persons that are interconnected. Section 36: substituted, on 26 May 2001, by section 9(1) of the Commerce
Amendment Act 2001 (2001 No 32).
36A Taking advantage of market power in trans-Tasman markets
- (1)
- Nothing in this section applies to any practice or conduct to which this Part applies that has been authorised under Part 5.
- (2)
- 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)—
- (a)
- in a market; or
- (b)
- in a market in Australia; or
- (c)
- in a market in New Zealand and Australia.
- (3)
- The purposes are as follows:
- (a)
- restrictingtheentryofapersonintoamarketthatisnot a market exclusively for services:
- (b)
- preventingordeterringapersonfromengagingincompetitive conduct in a market that is not a market exclusively for services:
- (c)
- eliminating a person from a market that is not a market exclusively for services.
- (4)
- Forthepurposesofthissection,apersondoesnottakeadvantage of a substantial degree of power in a market by reason only that the person seeks to enforce—
- (a)
- a statutory intellectual property right, within the mean ing of section 45(2), in New Zealand:
- (b)
- a statutory intellectual property right in Australia.
- (5)
- For the purposes of this section, a reference to a person includes 2 or more persons that are interconnected. Section 36A: substituted, on 26 May 2001, by section 9(1) of the Commerce
Amendment Act 2001 (2001 No 32).
36B Purposes may be inferred
The existence of any of the purposes specified in section 36 or section 36A, as the case may be, may be inferred from the conductofanyrelevantpersonorfromanyotherrelevantcircumstances. Section 36B: inserted, on 26 May 2001, by section 9(1) of the Commerce
Amendment Act 2001 (2001 No 32).
Resale price maintenance
37 Resale price maintenance by suppliers prohibited
- (1)
- Nopersonshallengageinthepracticeofresalepricemaintenance.
- (2)
- For the purposes of this section a person engages in the practiceofresalepricemaintenanceifthatperson(inthissection referred to as the supplier) does any of the acts referred to in subsection (3).
- (3)
- The acts referred to for the purposes of subsection (2) are—
- (a)
- thesuppliermakingitknowntoanotherpersonthatthe supplierwillnotsupplygoodstotheotherpersonunless theotherpersonagreesnottosellthosegoodsataprice less than a price specified by the supplier:
- (b)
- the supplier inducing, or attempting to induce, another personnottosell,atapricelessthanapricespecifiedby the supplier, goods supplied to the other person by the supplierorbyathirdpersonwho,directlyorindirectly, has obtained the goods from the supplier:
- (c)
- the supplier entering or offering to enter into an agreement, for the supply of goods to another person, where oneofthetermsisorwouldbethattheotherpersonwill not sell the goods at a price less than a price specified, or that would be specified, by the supplier:
- (d)
- thesupplierwithholdingthesupplyofgoodstoanother person for the reason that the other person—
- (i)
- has not agreed to the condition mentioned in paragraph (a); or
- (ii)
- has sold, or is likely to sell, goods supplied to him by the supplier, or goods supplied to him by a third person who, directly or indirectly, has
obtained the goods from the supplier, at a price less than a price specified by the supplier as the price below which the goods are not to be sold:
(e) thesupplierwithholdingthesupplyofgoodstoanother person for the reason that a third person who, directly or indirectly, has obtained, or wishes to obtain, goods from the other person—
- (i)
- has not agreed not to sell those goods at a price less than a price specified by the supplier; or
- (ii)
- has sold or is likely to sell goods supplied or to be supplied to that third person, by the other person, at a price less than a price specified by the supplier as the price below which the goods are not to be sold.
- (4)
- For the purposes of subsection (3),—
- (a)
- where the supplier makes it known, in respect of any goods,thatthepricebelowwhichthosegoodsarenotto besoldisapricespecifiedby anotherpersoninrespect of those goods, orin respect of goods ofa like description, that price shall be deemed to have been specified, inrespectofthefirst-mentionedgoods,bythesupplier:
- (b)
- whereasetform,method,orformulaisspecifiedbyor onbehalfofthesupplierandapricemaybeascertained by calculation from, or by reference to, that set form, method, or formula, that price shall be deemed to have been specified by the supplier:
- (c)
- where the supplier makes it known, in respect of any goods,thatthepricebelowwhichthosegoodsarenotto be sold is a price ascertained by calculation from or by referencetoasetform,method,orformulaspecifiedby another person in respect of those goods, or in respect ofgoodsofalikedescription,thatpriceshallbedeemed tohavebeenspecified,inrespectofthefirst-mentioned goods, by the supplier:
- (d)
- wherethesuppliermakesastatementtoanotherperson ofapricethatislikelytobeunderstoodbythatpersonas thepricebelowwhichgoodsarenottobesold,thatprice shall be deemed to have been specified by the supplier as the price below which the goods are not to be sold:
- (e)
- anything done by a person acting on behalf of, or by arrangementwith,thesuppliershallbedeemedtohave been done by the supplier.
- (5)
- 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.
38 Resale price maintenance by others prohibited
- (1)
- Noperson(inthissectionreferredtoasthethirdparty)shall—
- (a)
- makeitknowntoanotherpersonthatthethirdpartyproposestoengageinconduct,whetheraloneorinconcert with any other person, that will hinder or prevent the supply of any goods to, or the acquisition of any goods from, that person unless that person agrees not to sell those goods at a price less than the price specified by the third party; or
- (b)
- engage in conduct, whether alone or in concert with any other person,thatwill hinder or prevent the supply of goods to, or the acquisition of goods from, another person for the purpose of inducing that person not to sell those goods at a price lessthanaprice specified by the third party.
- (2)
- For the purposes of subsection (1),—
- (a)
- wherethethirdpartymakesitknown,inrespectofany goods,thatthepricebelowwhichthosegoodsarenotto besoldisapricespecifiedby anotherpersoninrespect of those goods, orin respect of goods ofa like description,thatpriceshallbedeemedtohavebeenspecifiedin respectofthefirst-mentionedgoods,bythethirdparty:
- (b)
- whereasetform,method,orformulaisspecifiedbyor on behalf of the third party and a price may be ascertained by calculation from, or by reference to, that set form,method,orformula,thatpriceshallbedeemedto have been specified by the third party:
- (c)
- wherethethirdpartymakesitknown,inrespectofany goods,thatthepricebelowwhichthosegoodsarenotto be sold is a price ascertained by calculation from or by referencetoasetform,method,orformulaspecifiedby another person in respect of those goods, or in respect ofgoodsofalikedescription,thatpriceshallbedeemed tohavebeenspecified,inrespectofthefirst-mentioned goods, by the third party:
- (d)
- wherethethirdpartymakesastatementtoanotherpersonofapricethatislikelytobeunderstoodbythatperson as the price below which goods are not to be sold, thatpriceshallbedeemedtohavebeenspecifiedbythe third party as the price below which the goods are not to be sold:
- (e)
- anything done by a person acting on behalf of, or by arrangement with, the third party shall be deemed to have been done by the third party.
- (3)
- Forthepurposesofthissectionsaleincludesadvertiseforsale, display for sale, and offer for sale, and sell, selling, and sold have corresponding meanings.
39 Recommended prices For the purposes of section 37(3)(b), a supplier of any goods isnottobetakenasinducing,orattemptingtoinduce,another person not to sell those goods at a price less than a price specified by the supplier merely because—
- (a)
- astatementofapriceisappliedorusedinrelationtothe goodsor is applied to a covering, label, reel,or thing if the statement is preceded by the words “recommended price”; or
- (b)
- thesupplierhasgivennotificationinwritingtotheother person (not being a notification in the form of a statementappliedtothegoodsortoanycovering,label,reel, orthingasmentionedinparagraph(a))ofthepricethat the supplier recommends as appropriate for the sale of those goods, if the notification, and each writing that refers,whether expresslyorby implication, tothenotification,includesastatementtotheeffectthattheprice is a recommended price only and there is no obligation to comply with the recommendation.
Compare: Trade Practices Act 1974 s 97 (Aust)
40 Withholding the supply of goods Forthepurposesof section37(3)(d)and(e) ,thesuppliershall be deemed to withhold the supply of goods to another person if—
- (a)
- thesupplierrefusesorfailstosupplythosegoodsto,or as requested by, the other person; or
- (b)
- the supplier refuses to supply those goods except on terms that are disadvantageous to the other person; or
- (c)
- in supplying those goods to the other person, the supplier treats that person less favourably, whether in respectoftime,method,orplaceofdelivery,orotherwise, than the supplier treats other persons to whom the supplier supplies the same or similar goods; or
- (d)
- the supplier causes or procures a person to act in relation to the supply of goods in the manner specified in paragraphs (a), (b), or (c), as the case may be.
Compare: Trade Practices Act 1974 s 98 (Aust)
41 Preventing the supply of goods
For the purposes of section 38,—
- (a)
- the supply of goods shall be deemed to be prevented if—
- (i)
- the supply of those goods is refused except on terms that are disadvantageous to the person acquiring the goods; or
- (ii)
- the supply of those goods is on terms which are less favourable, whether in respect of time, method, or place of delivery, or otherwise, than the person who supplies the goods treats other persons to whom the same or similar goods are supplied:
- (b)
- theacquisitionofgoodsshallbedeemedtobeprevented if—
- (i)
- the acquisition of those goods is refused except on terms that are disadvantageous to the person supplying the goods; or
- (ii)
- the acquisition of those goods is on terms which are less favourable, whether in respect of time, method, or place of delivery, or otherwise, than
the person who acquires the goods treats other persons from whom the same or similar goods are acquired.
42 Special evidentiary provisions in respect of certain resale price maintenance practices
(1) 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—
- (a)
- the supplier has acted in a manner referred to in sec tion 40; and
- (b)
- duringaperiodendingimmediatelybeforethesupplier so acted, the supplier had been supplying goods of the kind withheld either to—
- (i)
- the person in respect of whom the contravention is alleged; or
- (ii)
- a person carrying on a similar business to that person; and
- (c)
- duringaperiodof6monthsimmediatelybeforethesuppliersoacted,thesupplierbecameawareofamatteror circumstance capable of constituting a reason referred to in section 37(3)(d) or (e)—
itshallbepresumed,intheabsenceofevidencetothecontrary, that the supplier so acted on account of that matter.
(2) Nothing in subsection (1) applies in respect of terms imposed byasupplierthataredisadvantageousortreatmentthatisless favourablethanthesupplieraccordsotherpersonsiftheterms or treatment consists only of a requirement by the supplier as tothe time atwhich,or the form in which, paymentwastobe made or as to the giving of security to secure payment. Compare: Trade Practices Act 1974 s 100(1), (2) (Aust)
43 Statutory exceptions
- (1)
- 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.
- (2)
- 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
55
thing,notwithstandingthattheact,matter,orthingrequiresor may be subject to approval or authorisation by a Minister of the Crown, statutory body or a person holding any particular office, or, inthe case of a rulemade or an act, matter, or thing done pursuant to any enactment, approval or authorisation by Order in Council.
(3) Noact,matter,orthingauthorisedundersection7(2)(i)ofthe SharebrokersAmendmentAct1981or section70(1)(n) ofthe Real Estate Agents Act 1976 as enacted immediately before thecommencementofthisAct,shallbetakentobespecifically authorised under subsection (1). Compare: 1975 No 113 ss 22(7), 27(3)(c); 1976 No 67 ss 15(1), 20(2)(b)
44 Other exceptions
(1) Nothing in this Part applies—
(a) to the entering into of a contract, or arrangement, or arriving at an understanding between partners none of whomisabodycorporateinsofarasitcontainsaprovisioninrelationtothetermsofthepartnershiportheconductofthepartnershipbusinessorinrelationtocompetition between the partnership and a party to the contract,arrangement,orunderstandingwhilethatpartyis, or after that party ceases to be, a partner:
(b) [Repealed]
- (c)
- totheenteringintoofacontractofserviceoracontract fortheprovisionofservicesinsofarasitcontainsaprovision by which a person, not being a body corporate, agrees to accept restrictions as to the work, whether as anemployeeorotherwise,inwhichthatpersonmayengage during, or after the termination of, the contract:
- (d)
- to the entering into of a contract for, or the giving or requiring the giving of a covenant in connection with, the sale of a business or shares in the capital of a body corporate carrying on a business in so far as it contains a provision that is solely for the protection of the purchaser in respect of the goodwill of the business:
- (e)
- to the entering into of a contract, or arrangement, or arriving at an understanding in so far as it contains a provision obligating a person to comply with or apply standardsofdimension,design,quality,orperformance prepared or approved by the Standards Association of New Zealand or by any association or body prescribed for the purpose of this paragraph by regulations made under this Act:
- (f)
- to the entering into of a contract, or arrangement, or arriving at an understanding in so far as it contains a provisionthatrelatestotheremuneration,conditionsof employment, hours of work, or working conditions of employees:
- (g)
- to the entering into of a contract, or arrangement, or arriving at an understanding in so far as it contains a provisionthatrelatesexclusivelytotheexportofgoods from New Zealand or exclusively to the supply of services wholly outside New Zealand, if full and accurate particularsoftheprovision(notincludingparticularsof pricesforgoodsorservicesbutincludingparticularsof any method of fixing, controlling, or maintaining such prices)werefurnishedtotheCommissionbeforetheexpiration of 15 working days after the date onwhich the contractorarrangementwasmadeortheunderstanding wasarrivedat,or60workingdaysafterthecommencement of this Act, whichever is the later:
- (h)
- to any act done, otherwise than in trade, in concert by usersofgoodsorservicesagainstthesuppliersofthose goods or services:
- (i)
- to any act done to give effect to a provision of a contract, arrangement, or understanding, or to a covenant referred to in paragraphs (a) to (g).
(1A) NothinginthisPart(exceptsections36and36A)appliesto—
- (a)
- the entering into of a contract or arrangement, or arriving at an understanding, or the giving or requiring the giving of a covenant, if the only parties, or (in the case of a covenant or proposed covenant) the only persons who are or would be respectively bound by, or entitled to the benefit of, the covenant or proposed covenant, are, or would be, interconnected bodies corporate:
- (b)
- any act done to give effect to a provision of a contract, arrangement, or understanding, or to a covenant referred to in paragraph (a).
(2) Nothing in this Part applies—
- (a)
- to the entering into of a contract, or arrangement, or arriving at an understanding in so far as it contains a provision exclusively for the carriage of goods by sea from a place in New Zealand to a place outside New ZealandorfromaplaceoutsideNewZealandtoaplace in New Zealand; or
- (b)
- to any act done to give effect to a provision of a contract,arrangement,orunderstandingreferredtoinparagraph (a).
(3) For the purposes of subsection (2), a provision of a contract, arrangement, or understanding is not a provision exclusively for the carriage of goods by sea if it relates to the carriage of goods to or from a ship or the loading or unloading of a ship. Compare: Trade Practices Act 1974 s 51(2), (2A) (Aust) Section44(1)(b): repealed,on26May2001,bysection10(1)oftheCommerce Amendment Act 2001 (2001 No 32). Section 44(1A): inserted, on 26 May 2001, by section 10(2) of the Commerce Amendment Act 2001 (2001 No 32).
Section 44(3): added, on 31 August 1990, by section 11(1) of the Port Companies Amendment Act 1990 (1990 No 120).
45 Exceptions in relation to intellectual property rights
- (1)
- Nothing in this Part, except sections 36, 36A, 37, and 38, ap plies—
- (a)
- totheenteringintoofacontractorarrangementorarriving at an understanding in so far as it contains a provisionauthorisinganyactthatwouldotherwisebeprohibitedbyreasonoftheexistenceofastatutoryintellectual property right; or
- (b)
- toanyactdonetogiveeffecttoaprovisionofacontract, arrangement, or understanding referred to in paragraph (a).
- (2)
- 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—
- (3)
- For the purposes of subsection (2),—
- (a)
- apersonwhohasappliedforapatentinaccordancewith th e Patents Act 1953 and filed the complete specifica tion in relation to the application shall, until the application is determined, be deemed to have been granted the patent to which the application relates:
- (b)
- a person who has made an application for the registrationofadesigninaccordancewith section7 oftheDesignsAct1953shall,untiltheapplicationisdetermined, bedeemedtobetheregisteredproprietorofthedesign:
- (c)
- a person who has made an application in accordance with section 32 of the Trade Marks Act 2002 for regis trationofatrade mark shall,until theapplicationisdetermined, be deemed to be the registered proprietor of the trade mark:
- (d)
- a person who has made an application in accordance with section5 ofthePlantVarietyRightsAct1987shall, until the application is determined, be deemed to have beengrantedtheplantvarietyrightstowhichtheapplication relates.
Section45: substituted, on 1 January1995, bysection 42(1) of the LayoutDe signs Act 1994 (1994 No 116).
Section 45(2)(c): substituted, on 20 August 2003, by section 201 of the Trade Marks Act 2002 (2002 No 49).
Section45(2)(d): substituted,on1January1995,bysection236(1)oftheCopy right Act 1994 (1994 No 143).
Section 45(3)(c): amended, on 20 August 2003, by section 201 of the Trade Marks Act 2002 (2002 No 49).
46 Saving in respect of business acquisitions
Nothing in this Part applies—
(a) to the entering into of a contract or arrangement or the arrivingatofanunderstandinginsofarasthecontract, arrangement,orunderstandingcontainsaprovisionthat
59
providesfortheacquisitionordispositionofassetsofa business or shares; or
(b) to any act done to give effect to a provision of a contract, arrangement, or understanding that provides for the acquisition or disposition of assets of a business or shares.
Section 46: substituted, on 2 September 1996, by section 3 of the Commerce Amendment Act 1996 (1996 No 113).
Part 3 Business acquisitions
Part3: substituted,on1January1991,bysection18oftheCommerceAmend ment Act 1990 (1990 No 41).
47 Certain acquisitions prohibited
- (1)
- Apersonmustnotacquireassetsofabusinessorsharesifthe acquisition would have, or would be likely to have, the effect of substantially lessening competition in a market.
- (2)
- For the purposes of this section, a reference to a person includes2ormorepersonsthatareinterconnectedorassociated.
- (3)
- For the purposes of this section, a person is associated with another person if that person is able, whether directly or indirectly,toexertasubstantialdegreeofinfluenceovertheactivities of the other.
- (4)
- 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—
- (a)
- thosepersonsareincompetitioninthesamemarket;or
- (b)
- one of them supplies goods or services to the other. Compare: Trade Practices Act 1974 s 50 (Aust)
Section 47: substituted, on 26 May 2001, by section 11(1) of the Commerce Amendment Act 2001 (2001 No 32).
48 Bare transfer of market dominance excluded
[Repealed]
Section 48: repealed, on 26 May 2001, by section 11(3) of the Commerce Amendment Act 2001 (2001 No 32).
49 Application to building societies
[Repealed]
Section 49: repealed, on 1 January 1991, by section 18 of the Commerce Amendment Act 1990 (1990 No 41).
50 Certain merger or takeover proposals require clearance or authorisation
[Repealed]
Section 50: repealed, on 1 January 1991, by section 18 of the Commerce Amendment Act 1990 (1990 No 41).
51 Contracts subject to condition of clearance or authorisation
[Repealed]
Section 51: repealed, on 1 January 1991, by section 18 of the Commerce Amendment Act 1990 (1990 No 41).
Part 4 Regulated goods or services
Part4: substituted,on14October2008,bysection4oftheCommerceAmend ment Act 2008 (2008 No 70).
Subpart 1—Preliminary provisions
Subpart1heading: inserted,on14October2008,bysection4oftheCommerce Amendment Act 2008 (2008 No 70).
52 Overview of Part
This Part provides for the regulation of the price and quality ofgoodsorservicesinmarketswherethereislittleornocompetition and little or no likelihood of a substantial increase in competition. Section 52: substituted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
52A Purpose of Part
(1) The purpose of this Part is to promote the long-term benefit of consumers in markets referred to in section 52 by promot ing outcomes that are consistent with outcomes produced in competitive markets such that suppliersof regulated goods or services—
- (a)
- have incentives to innovate and to invest, including in replacement, upgraded, and new assets; and
- (b)
- have incentives to improve efficiency and provide services at a quality that reflects consumer demands; and
- (c)
- sharewithconsumersthebenefitsofefficiencygainsin thesupplyoftheregulatedgoodsorservices,including through lower prices; and
- (d)
- are limited in their ability to extract excessive profits.
(2) In this Part, the purpose set out in subsection (1) applies in place of the purpose set out in section 1A. Section 52A: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
52B Outline of Part
- (1)
- This Part provides—
- (a)
- genericprovisionsforimposingany1ormoreof3types of regulation ongoodsor services (see subpart 2); and
- (b)
- for the Commission to determine input methodologies applying to the supply of goods or services regulated under this Part (see subpart 3).
- (2)
- ThedifferenttypesofregulationunderthisPartareasfollows:
- (a)
- information disclosure regulation, under which regulated suppliers are required to disclose information in accordance with requirements determined by the Commission (see subpart 4):
- (b)
- negotiate/arbitrate regulation, under which regulated suppliersarerequiredtonegotiatewithotherpartieson prices and quality, and, if negotiation is unsuccessful, to enter into binding arbitration (see subpart 5):
- (c)
- price-quality regulation, of which there are 2 types:
- (i)
- default/customised price-quality regulation, under which default price-quality paths are set for regulated suppliers, but individual suppliers mayseekacustomisedprice-qualitypathinstead (see subpart 6); and
- (ii)
- individual price-quality regulation, under which the Commission sets a price-quality path for an individual regulated supplier (see subpart 7).
- (4)
- This section is only a guide.
Section 52B: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
52C Interpretation
In this Part, unless the context otherwise requires,— claw-back has the meaning given to it by section 52D consumer(otherthanin sections54C , 54D ,and 55A )meansa
person that consumesor acquires regulated goods orservices information disclosure requirement means a requirement that applies to a supplier of goods or services that are subject
toinformation disclosure regulation, and is specifiedina sec tion 52P determination inputmethodology meansadescriptionofanymethodology,
process, rule, or matter that includes any of the matters listed in section52T andthatispublishedbytheCommissionunder section 52W; and, in relation to particular goods or services, meansanyinputmethodology,orallinputmethodologies,that relate tothesupply, orto suppliers, ofthosegoodsorservices
inquiry means an inquiry by the Commission carried out in accordance with sections 52H to 52J price—
- (a)
- means any 1 or more of individual prices, aggregate prices, or revenues (whether in the form of specific numbers, or in the form of formulas by which specific numbers are derived); and
- (b)
- includes any related terms of payment
pricing methodologies means methodologies for setting the prices of individual goods or services, or classes of goods or services, and includes methodologies for setting different
prices for different customer groups publiclyavailable,inrelationtomakingadocumentorinformation available, means that—
- (a)
- thedocumentorinformationisavailableforinspection, freeofcharge,onanInternetsitethatispubliclyaccessible at all reasonable times; and
- (b)
- a copy of the document or information is available for inspection atall reasonable times, free of charge, at the headofficeofthepersonthatisrequiredtomakeitpublicly available or, if the person is the Minister, at the headofficeofthedepartmentresponsiblefortheadministration of this Act; and
- (c)
- copiesofthedocumentmaybepurchasedbyanyperson
at a reasonable price publiclydisclose,inrelationtoinformationrequiredtobedisclosed under information disclosure regulation, means to disclose information to the public in the manner required by a section 52P determination
regulated means regulated under this Part regulatedgoodsorservices meansgoodsorservicesthatare declared to be regulated—
regulatedsuppliermeansapersontowhoma section52P determination applies in relation to particular goods or services section 52P determination means a determination by the
Commission under section 52P that sets out how each type of regulation that applies to particular regulated goods or services applies to a supplier of those goods or services; and, inrelationtoparticulargoodsorservices,meanseverysection 52P determination relevant to the regulation of those goods or services. Section 52C: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
52D Meaning and application of claw-back
- (1)
- AreferencetotheCommissionapplyingclaw-backisareference to the Commission doing either of the following:
- (a)
- requiring a supplier to lower its prices on a temporary basis in order to compensate consumers for some or all of any over-recovery that occurred under the prices previously charged by the supplier:
- (b)
- allowingasuppliertorecoversomeorallofanyshortfallinitsrevenuesthatoccurredunderthepricespreviously charged by the supplier.
- (2)
- If the Commission requires a supplier to lower its prices, it must also require that the lowering of prices must be spread overtimeinordertominimiseunduefinancialhardshiptothe supplier.
- (3)
- If the Commission allows a supplier to recover any shortfall, it must require that any recovery must be spread over time in order to minimise price shocks to consumers. Section 52D: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
Subpart 2—Regulating particular goods or services
Subpart2: inserted,on14October2008,bysection4oftheCommerceAmend ment Act 2008 (2008 No 70).
52E Overview of process if regulation imposed on goods or services
(1) Theprocessforimposingregulationunderthissubpartonparticular goods or services involves the following steps:
- (a)
- theCommissionholdsaninquiryintowhether,andifso how, to regulate the goods or services, and then makes a recommendation to the Minister under section 52K:
- (b)
- theMinisterconsiderstheCommission’srecommendation and decides whether or not to recommend to the Governor-Generalthatregulationbeimposedand,ifso, which type or types of regulation:
- (c)
- if the Minister decides to recommend regulation, an Order in Council may be made under section 52N that makes the goods or services subject to regulation and identifies the type or types of regulation that apply:
- (d)
- for each type of regulated goods or services, the Com mission makes a section 52P determination specifying
how the applicable type or types of regulation apply to a supplier of the regulated goods or services.
(2) This section is only a guide.
Section 52E: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
52F Effect of goods or services being subject to regulation
- (1)
- If goods or services are subject to regulation of a particular type,everyregulatedsupplierofthosegoodsorservicesmust comply with—
- (a)
- the requirements of this Part relating to that type of regulation; and
- (b)
- every section 52P determination applying to the sup plier.
- (2)
- Sections86to87C (whichrelatetooffencesandcivilproceedingsrelatingtocontraventionsofthisPart)applytoaregulated supplieronandfromthedateonwhichthesupplierisobliged to comply with a relevant section 52P determination.
- (3)
- TheCommissionisentitledtoexerciseanyofitspowersunder thisActforthepurposeofmonitoringcompliancebyregulated suppliers with regulation under this Part. Section 52F: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
52G When goods or services may be regulated
- (1)
- GoodsorservicesmayberegulatedunderthisPartonlyif—
- (a)
- the goods or services are supplied in a market where there is both—
- (i)
- little or no competition; and
- (ii)
- little or no likelihood of a substantial increase in competition; and
- (b)
- there is scope for the exercise of substantial market power in relation to the goods or services, taking into account the effectiveness of existing regulation or arrangements (including ownership arrangements); and
- (c)
- thebenefitsofregulatingthegoodsorservicesinmeeting the purpose of this Part materially exceed the costs of regulation.
- (2)
- In any consideration of this test, the part of the test in subsection (1)(c) need not be considered unless the parts of the test in subsection (1)(a) and (b) are satisfied. Section 52G: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
Commission inquiry
Heading: inserted,on14October2008,bysection4oftheCommerceAmend ment Act 2008 (2008 No 70).
52H How inquiry triggered
- (1)
- The Commission—
- (a)
- mustholdaninquiryifrequiredtodosobytheMinister; and
- (b)
- may hold an inquiry on its own initiative.
- (2)
- Any requirement by the Minister must—
- (a)
- be in writing; and
- (b)
- specify the date by which the Commission must make a recommendation under section 52K to the Minister.
Section 52H: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
52I Commission inquiry into particular goods or services
- (1)
- Inconductinganinquiryintoparticulargoodsorservices,the Commission must consider—
- (a)
- whetherthetestin section52G issatisfiedinrelationto the goods or services; and
- (b)
- if that test is satisfied, whether the goods or services should be regulated; and
- (c)
- if so, how the goods or services should be regulated, including—
- (i)
- howthegoodsorservicesshouldbedefined;and
- (ii)
- which type or types of regulation (as set out in section 52B(2)) the goods or services should be subject to; and
- (2)
- As part of an inquiry into particular goods or services, the Commission—
- (a)
- must determine (and then apply) input methodologies for the supply of the goods or services, in accordance with subpart 3; and
- (b)
- must, when carrying out the analysis required by sec tion 52G(1)(c), undertake a qualitative analysis of all materiallong-termefficiencyanddistributionalconsiderations.
- (3)
- As part of that qualitative analysis, the Commission must, as far as practicable,—
- (a)
- quantify material effects on allocative, productive, and dynamic efficiency; and
- (b)
- quantify material distributional and welfare consequences on suppliers and consumers; and
- (c)
- assessthedirectandindirectcostsandrisksofanytype of regulation considered, including administrative and compliance costs, transaction costs, and spill-over effects.
- (4)
- Aspartofaninquiry,theCommissionmust,whenconsidering which type of regulation might be imposed,—
- (a)
- assessthebenefitsofimposingdifferenttypesofregulationinmeetingthepurposeofthisPartagainstthecosts of imposing those types of regulation; and
- (b)
- consider what would be the most cost-effective type or types of regulation in the circumstances.
- (5)
- During an inquiry, the Commission may have regard to any other matters it considers necessary or desirable for the purpose of the inquiry. Section 52I: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
52J Process of inquiry
- (1)
- Atthestartofaninquiry,theCommissionmustpublishinthe Gazette a notice setting out,—
- (a)
- in the case of an inquiry required by the Minister, the Minister’s requirements; and
- (b)
- in the case of an inquiry on the initiative of the Commission, the terms of reference for the inquiry.
- (2)
- The notice must set out indicative time frames and key steps.
- (3)
- During the course of an inquiry, the Commission—
- (a)
- may publish, in whatever way it considers appropriate, further notices, consultation documents,or papers;and
- (b)
- must give interested persons a reasonable opportunity to give their views; and
- (c)
- may hold 1 or more conferences; and
- (d)
- musthaveregardtoanyviewsreceivedfrominterested persons within any time frames set.
- (4)
- Before the end of an inquiry, the Commission must publish a proposed recommendation for consultation. Section 52J: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
52K Commission’s recommendation following inquiry
- (1)
- Attheendofaninquiry,havingconsideredthemattersin sec tion 52I, the Commission must make a recommendation to the Minister on whether, in its opinion, the goods or services should be regulated.
- (2)
- If the recommendation is that particular goods or services should be regulated, the recommendation must state the following:
- (a)
- how the goods or services should be specified:
- (b)
- which type or types of regulation should apply to the goods or services:
- (c)
- what input methodologies apply:
- (d)
- if information disclosure regulation is recommended, thematerialprovisionsoftheinformationdisclosurerequirements:
- (e)
- if negotiate/arbitrate regulation is recommended, the material provisions of the negotiation process and arbitration process:
- (f)
- ifdefault/customisedprice-qualityregulationisrecommended, the default price path and quality standards:
- (g)
- if individual price-quality regulation is recommended, the material provisions to apply.
- (3)
- The Minister must publish the Commission’s recommendation, and may do so in whatever way he or she considers appropriate.
- (4)
- To avoid doubt, a recommendation by the Commission is not a determination of the Commission.
Section 52K: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
Order in Council imposing regulation
Heading: inserted,on14October2008,bysection4oftheCommerceAmend ment Act 2008 (2008 No 70).
52L Minister’s consideration
- (1)
- TheMinistermustconsideranyrecommendationoftheCom mission made under section 52K.
- (2)
- As part of that consideration, the Minister—
- (a)
- must consult with the relevant sector Minister (such as the Minister of Energy or the Minister of Transport); and
- (b)
- may request further information or advice from the Commission.
- (3)
- If the Minister proposes, contrary to the recommendation of the Commission, that the goods or services should be regulated, or that they should be subject to a type of regulation not recommended by the Commission, the Minister must ask theCommissionforwrittenadviceonwhatthematerialprovisionsoftherelevant section52P determinationwouldbelikely tobeifthe goodsorservices weresubjecttothetypeortypes of regulation proposed by the Minister.
- (4)
- Any request by the Minister under subsection (3), and the Commission’s advice given following that request, must be made publicly available.
- (5)
- If the Commission receives a request under subsection (3), it may, at its discretion,—
- (a)
- consult with interested parties; or
- (b)
- reopen its inquiry, in which case section 52J applies with all necessary modifications.
Section 52L: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
52M Minister’s decision and recommendation
- (1)
- Having considered the Commission’s recommendation in ac cordance with section 52L and any advice given following a request under section 52L(3), the Minister must—
- (a)
- decidewhether,intheopinionoftheMinister,thegoods or services should be regulated; and
- (b)
- ifthegoodsorservicesaretoberegulated,decidewhich type or types of regulation are to apply; and
- (c)
- make a recommendation to that effect, if the goods or services are to be regulated.
- (2)
- TheMinister’sdecisionmaybethesameas,ordifferentfrom, the Commission’s recommendation under section 52K.
- (3)
- If the Minister’s decision is different from the Commission’s recommendation,theMinistermustsetoutthereasonsforthe decision and make the decision, with the reasons, publicly available. Section 52M: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
52N Order in Council imposing regulation
- (1)
- The Governor-General may, on the recommendation of the Minister made under section 52M, make an Order in Coun cil imposing regulation on particular goods or services.
- (2)
- The order must—
- (a)
- declare that the goods or services are regulated; and
- (b)
- statewhichtypeortypesofregulationthegoodsorservices are subject to.
- (3)
- The order may identify the goods or services it relates to by reference to goods or (with all necessary modifications) services—
- (a)
- supplied in or for delivery within specified regions, areas, or localities in New Zealand; or
- (b)
- supplied in different quantities, qualities, grades, or classes; or
- (c)
- supplied by or to or for the use of different persons or classes of persons; or
- (d)
- any or all of paragraphs (a) to (c).
- (4)
- Subsection (3) applies so that any part or element of goods or services can be dealt with separately.
- (5)
- The order must include an expiry date, which must be a date not later than 20 years after its date of commencement.
- (6)
- The order is a regulation within the meaning of the Regula tions (Disallowance) Act 1989 and the Acts and Regulations Publication Act 1989. Section 52N: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
52O Revocation or amendment of Order in Council
- (1)
- AnOrderinCouncilmadeunder section52N inrespectofparticular goods or services may not be revoked or significantly amended unless the Commission has held an inquiry into the goods or services.
- (2)
- In subsection (1), significantly amended means amended in a way that—
- (a)
- alters the type or types of regulation applying to the goods or services; or
- (b)
- materiallyaltersthegoodsorservicestowhichtheregulation applies, so that either—
- (i)
- the goods or services, or any of them, are no longer regulated; or
- (ii)
- goods or services that were not identified in the original order are now subject to regulation.
- (3)
- AnOrderinCouncilmadeunder section52N maybeamended inanyothermaterialwayonlyaftertheCommissionhasconsulted with interested parties, but may be amended in a nonmaterial way without prior consultation. Section 52O: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
Commission determination about how regulation applies
Heading: inserted,on14October2008,bysection4oftheCommerceAmend ment Act 2008 (2008 No 70).
52P Determinations by Commission under this section
- (1)
- TheCommissionmustmakedeterminationsunderthissection specifying how the relevant forms of regulation apply to suppliers of regulated goods or services.
- (2)
- Determinations must be made,—
- (a)
- inthecaseofgoodsorservicesdeclaredtoberegulated by an Order in Council under section 52N, as soon as practicable after the Order in Council is made; and
- (b)
- inthecaseofgoodsorservicesdeclaredtoberegulated under any of subparts 9 to 11, in accordance with sec tions 54I, 54J, 54K, 55E, and 56E.
- (3)
- Determinations must—
- (a)
- set out, for each type of regulation to which the goods or services are subject, the requirements that apply to each regulated supplier; and
- (b)
- set out any time frames (including the regulatory periods) that must be met or that apply; and
- (c)
- specify the input methodologies that apply; and
- (d)
- be consistent with this Part.
- (4)
- It is not necessary for a single determination to address all matters relating to particular regulated goods or services, or toasupplierofregulatedgoodsorservices,anddifferentparts of any determination may come intoeffect at different times.
- (5)
- If a determination under this section is made following an in quiry and a recommendation under section 52K, the require ments referred to in subsection (3)(a) must not differ in any material respect from the recommendation, or (if applicable) from any advice given to the Minister under section 52L(3).
- (6)
- A determination under this section may require a supplier to comply with the requirements set out in any other determinationthathasbeenmadeunderthissectioninrespectofregulated goods or services of the same type.
- (7)
- The Commission must, as soon as practicable after making a determination under this section,—
- (a)
- give a copy of the determination to each supplier to whom the determination relates; and
- (b)
- publish a summary of it in the Gazette; and
- (c)
- make the whole determination publicly available.
- (8)
- Eachsuppliertowhomthedeterminationrelatesmustcomply with the requirements imposed by the determination. Section 52P: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
52Q Amendment of section 52P determination
- (1)
- A section 52P determination may be amended in a material way only after the Commission has consulted with interested parties, but may be amended in a non-material way without prior consultation.
- (2)
- However, the Commission is not required to conduct an inquiry before amending a determination.
- (3)
- An amendment forms part of the determination it amends.
- (4)
- An amendment comes into force on the date specified in the amendment, which must be (except in the case of an amendment relating to a customised price-quality path that takes effectunder section53ZA(3) )adateonorafterthedateonwhich it, or a summary of it, is published in the Gazette.
- (5)
- TheCommissionmust,assoonaspracticableaftermakingan amendment,—
- (a)
- giveacopyoftheamendmenttoeachsuppliertowhom the determination relates; and
- (b)
- publish the amendment, or a summary of the amendment, in the Gazette; and
- (c)
- make a copy of the determination, as amended by the amendment, publicly available.
Section 52Q: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
Subpart 3—Input methodologies
Subpart3heading: inserted,on14October2008,bysection4oftheCommerce Amendment Act 2008 (2008 No 70).
52R Purpose of input methodologies
Thepurposeofinputmethodologiesistopromotecertaintyfor suppliersandconsumersinrelationtotherules,requirements, and processes applying to the regulation, or proposed regulation, of goods or services under this Part. Section 52R: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
52S How published input methodologies apply Everyrelevantinputmethodologyrelatingtothesupplyofpar ticular goods or services that is published under section 52W must be applied,—
- (a)
- ifthegoodsorservicesareregulated,byeveryregulated supplierofthegoodsorservicesinaccordancewiththe relevant section 52P determination; and
- (b)
- in all cases, by every person entitled or required under this Act to recommend, decide, or determine—
- (i)
- whetherorhowregulationunderthisPartshould apply to the goods or services; or
- (ii)
- the prices or quality standards applying to the goods or services.
Section 52S: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
52T Matters covered by input methodologies
- (1)
- The input methodologies relating to particular goods or servicesmustinclude,totheextentapplicabletothetypeofregulation under consideration,—
- (a)
- methodologies for evaluating or determining the following matters in respect of the supply of the goods or services:
- (i)
- cost of capital:
- (ii)
- valuation of assets, including depreciation, and treatment of revaluations:
- (b)
- pricing methodologies, except where another industry regulator (such as the Electricity Authority) has the power to set pricing methodologies in relation to particular goods or services; and
- (c)
- regulatory processes and rules, such as—
- (i)
- the specification and definition of prices, including identifying any costs that can be passed through to prices (which may not include the legal costs of any appeals against input method ology determinations under this Part or of any appeals under section 91 or section 97); and
- (ii)
- identifyingcircumstancesinwhichprice-quality paths may be reconsidered within a regulatory period; and
- (d)
- mattersrelatingtoproposalsbyaregulatedsupplierfor a customised price-quality path, including—
- (i)
- requirements that must be met by the regulated supplier, including the scope and specificity of information required, the extent of independent verification and audit, and the extent of consultation and agreement with consumers; and
- (ii)
- thecriteriathattheCommissionwillusetoevaluate any proposal.
- (2)
- Every input methodology must, as far as is reasonably practicable,—
- (a)
- set out the matters listed in subsection (1) in sufficient detail so that each affected supplier is reasonably able to estimate the material effects of the methodology on the supplier; and
- (b)
- set out how the Commission intends to apply the input methodology to particular types of goods or services; and
- (c)
- be consistent with the other input methodologies that relate to the same type of goods or services.
- (3)
- Any methodologies referred to in subsection (1)(a)(iii) must not unduly deter investment by a supplier of regulated goods or services in the provision of other goods or services. Section 52T: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
Section52T(1)(b): amended,on1November2010,bysection147oftheElec tricity Industry Act 2010 (2010 No 116).
52U When input methodologies must be determined
- (1)
- TheCommissionmustdetermineinputmethodologiesforthe goodsorservicesregulatedunder subparts9to11 nolaterthan 30 June 2010.
- (2)
- The Minister may, on the written request of the Commission, extend the deadline referred to in subsection (1) once, by a periodofupto6months,inwhichcasenoticeoftheextension must be given in the Gazette.
- (3)
- TheCommissionmustdetermineinputmethodologiesforany goods or services that are the subject of an inquiry as soon as practicable after the Commission is satisfied that the parts of the test for the regulation of goods or services set out in paragraphs (a) and (b) of section 52G(1) are satisfied. Section 52U: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
52V Commissionprocessfordetermininginputmethodologies
- (1)
- WhentheCommissionbeginsworkonaninputmethodology, it must publish a notice of intention to do so that—
- (a)
- outlines the process that will be followed; and
- (b)
- sets out the proposed time frames.
- (2)
- During the course of its work on an input methodology, the Commission—
- (a)
- must publish a draft methodology; and
- (b)
- must give interested persons a reasonable opportunity to give their views on that draft methodology; and
- (c)
- may hold 1 or more conferences; and
- (d)
- musthaveregardtoanyviewsreceivedfrominterested persons within any time frames set.
- (3)
- Despitesubsections(1)and(2),anyworkdoneoractiontaken (including any consultation) by the Commission on input methodologies before the commencement of this section may be treated by the Commission and any person consulted as work done or action taken under this section.
- (4)
- The Commission must consult with interested parties before decidingtotreatearlierworkoractionasworkoractiondone under this section. Section 52V: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
52W Publication of input methodologies
- (1)
- The Commission must publish every input methodology, and every amendment to an input methodology,—
- (a)
- within 10 working days after the Commission determines the input methodology or amendment; and
- (b)
- if the input methodology or an amendment is determined by the HighCourt on appeal, within 10 working days after the Commission receives a copy of the decision of the High Court.
- (2)
- The publication must be by way of a notice in the Gazette setting out—
- (a)
- abriefdescriptionofthenatureofthemethodologyand the goods or services to which it applies; and
- (b)
- the reasons for determining that methodology; and
- (c)
- how it is publicly available.
- (3)
- The Commission must make every input methodology, and everyamendedinputmethodology,publiclyavailableassoon as the input methodology or amendment is published. Section 52W: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
52X Amendment of input methodologies
If the Commission proposes to amend an input methodology by making a material change, section 52V applies as if the amendment were a new input methodology. Section 52X: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
52Y Review and date of publication of input methodologies
- (1)
- TheCommissionmustrevieweachinputmethodologynolater than7yearsafteritsdateofpublicationand,afterthat,atintervals of no more than 7 years.
- (2)
- The date of publication of an input methodology is the date on which it is published under section 52W(1)(a) or, if it is subsequently published under section 52W(1)(b), the date of that later publication.
- (3)
- Section52V applies,withallnecessarymodifications,asifthe review were a new input methodology.
- (4)
- Section 52W applies if, following a review, an input method ology is replaced or amended. Section 52Y: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
Appeals against input methodologydeterminations
Heading: inserted,on14October2008,bysection4oftheCommerceAmend ment Act 2008 (2008 No 70).
52Z Appeals against input methodology determinations
- (1)
- Any person who gave views on an input methodology deter mination to the Commission as part of the process under sec tion52V ,andwho,intheopinionofthecourt,hasasignificant interestinthematter,mayappealtotheHighCourtagainstthe determination.
- (2)
- In this section and section 52ZA, input methodology determination means any of the following:
- (a)
- the initial determination of an input methodology:
- (b)
- any determination by the Commission that amends the input methodology:
- (c)
- anydeterminationbytheCommissionofaninputmethodology following a review of the input methodology.
- (3)
- Indetermininganappealagainstaninputmethodologydetermination, the court may do any of the following:
- (a)
- decline the appeal and confirm the input methodology set out in the determination:
- (b)
- allow the appeal by—
- (i)
- amending the input methodology; or
- (ii)
- revokingtheinputmethodologyandsubstituting a new one; or
- (4)
- Thecourtmayonlyexerciseitspowersundersubsection(3)(b) if it is satisfied that the amended or substituted input methodology is (or will be, in the case of subsection (3)(b)(iii)) materially better in meeting the purpose of this Part, the purpose in section 52R, or both.
- (5)
- Ifthecourtallowsanappeal,theCommissionmayseekclarificationfromthecourtonanymatterforthepurposeofimplementing the court’s decision.
- (6)
- There is a right of appeal under section 97 to the Court of Appeal from any decision or order of the High Court under this section on a point of law only. Section 52Z: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
52ZA Process for appeals
- (1)
- Any appeal under section 52Z must be brought within 20 working days after the date on which the input methodology determination is published.
- (2)
- The appeal must be by way of rehearing and must be conductedsolelyonthebasisofthedocumentaryinformationand viewsthatwerebeforetheCommissionwhenitmadeitsdetermination,andnopartymayintroduceanynewmaterialduring the appeal.
- (3)
- TheHighCourtmustsitwith2laymembers(unlessthecourt considers that only 1 is required).
- (4)
- Eachofthelaymembersmusthaverelevantexperienceandbe appointedfromthepoolofpeopleappointedunder section77 to be members of the court for the purpose of hearing the appeal.
- (5)
- Section 77 applies, and section 77(14) is not limited by sub section (3) of this section. Section 52ZA: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
53 Input methodology applies pending outcome of appeal
- (1)
- The High Court may not stay the application of section 52S with respect to any input methodology published under sec tion 52W until any appeal against it is finally determined.
- (2)
- Section 52S continues to apply with respect to every input methodology published under section 52W until any appeal against the input methodology is finally determined. Section 53: substituted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
Subpart 4—Information disclosure regulation
Subpart4: inserted,on14October2008,bysection4oftheCommerceAmend ment Act 2008 (2008 No 70).
53A Purpose of information disclosure regulation The purpose of information disclosure regulation is to ensure thatsufficientinformationisreadilyavailabletointerestedpersons to assess whether the purpose of this Part is being met. Section 53A: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
53B Effect of being subject to information disclosure regulation
- (1)
- Every supplier of goods or services that are subject to information disclosure regulation must—
- (a)
- publiclydiscloseinformationinaccordancewiththeinformation disclosure requirements set out in the rele vant section 52P determination; and
- (b)
- supply to the Commission a copy of all information disclosedinaccordance withthesection52Pdetermin ation,within5workingdaysaftertheinformationisfirst made publicly available; and
- (c)
- supplytotheCommission,inaccordancewithawritten notice by the Commission, any further statements, reports, agreements, particulars, or other information requiredforthepurposeofmonitoringthesupplier’scom pliance with the section 52P determination.
- (2)
- Ifasupplierofgoodsorservicesissubjecttoinformationdisclosure regulation, the Commission—
- (a)
- may monitor and analyse all information disclosed in accordance with the information disclosure requirements; and
- (b)
- must, as soon as practicable after any information is publicly disclosed, publish a summary and analysis of that information for the purpose of promoting greater understanding of the performance of individual regulated suppliers, their relative performance, and the changes in performance over time.
Section 53B: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
53C Section 52P determination to set out information disclosure requirements
- (1)
- A section52P determinationrelatingtogoodsorservicesthat are subject to information disclosure regulation must—
- (a)
- specify the goods or services to which it applies; and
- (b)
- specify the suppliers to which it applies; and
- (c)
- specify the information to be disclosed; and
- (d)
- specify the manner in which the information is to be disclosed; and
- (e)
- specify the form of disclosure; and
- (f)
- specify when, and for how long, information must be disclosed; and
- (g)
- specify the input methodologies that apply; and
- (h)
- specifyanyothermethodologiesthatarerequiredinthe preparation or compilation of the information.
- (2)
- Information required to be disclosed may include (without limitation) any or all of the following:
- (a)
- financialstatements(includingprojectedfinancialstatements):
- (b)
- asset values and valuation reports:
- (c)
- prices,termsandconditionsrelatingtoprices,andpricing methodologies:
- (d)
- contracts:
- (e)
- transactions with related parties:
- (f)
- financial and non-financial performance measures:
- (g)
- plansandforecasts,including(withoutlimitation)plans and forecasts about demand, investments, prices, revenues, quality and service levels, capacity and spare capacity, and efficiency improvements:
- (h)
- asset management plans:
- (i)
- quality performance measures and statistics:
- (j)
- assumptions, policies, and methodologies used or applied in these or other areas:
- (k)
- consolidated information that includes information about unregulated goods or services, in which case section 53D applies.
- (3)
- The section 52P determination may do all or any of the fol lowing:
- (a)
- require disclosed information, or information from which disclosed information is derived (in whole or in part), to be verified by statutory declaration:
- (b)
- require independent audits of disclosed information:
- (c)
- require the retention of data on which disclosed information is based, and associated documentation:
- (d)
- exemptanypersonorclassofpersons,orprovideforexemptions, from any requirements of the determination, and provide for the revocation of exemptions:
- (e)
- provide for transitional provisions:
- (f)
- impose any other requirements that the Commission considersnecessaryordesirabletopromotethepurpose of information disclosure regulation.
- (4)
- The section 52P determination may not require a supplier to publicly disclose any provision of an existing contract that, immediatelybeforethegoodsorservicesbecamesubjecttoinformation disclosure regulation, was not required by or under Part 4A (as defined in section 54B) or any other enactment to be publicly disclosed. Section 53C: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
53D Consolidated information may also be required
- (1)
- The purpose of this section is to enable the Commission to monitor compliance with information disclosure regulation applying to regulated goods or services.
- (2)
- A section52P determinationmayrequireinformationreferred toinsubsection(3)tobedisclosedonlytotheextentrequired to enable the purpose in subsection (1) to be met.
- (3)
- If a regulated supplier provides goods or services that are not subject to regulation under this Part (unregulated goods or services), the supplier may be required to disclose—
- (a)
- consolidated financial statements, and any other informationreferredtoin section53C ,forallbusinesses(includingthoserelatedtothesupplyofunregulatedgoods or services) undertaken by that supplier; and
- (b)
- consolidated financial statements, and any other infor mation referred to in section 53C, for the supply of all unregulated goods or services in aggregate; and
- (c)
- reconciliation between information provided under paragraphs (a) and (b) with information disclosed in accordance with information disclosure requirements applying to the regulated goods or services.
- (4)
- If a supplier supplies more than 1 kind of regulated goods or services, the Commission may require the supplier to provide consolidated information and performance measures relating to all, or any combination of, the regulated goods or services. Section 53D: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
53E Charge for providing copies to public
- (1)
- A person who is required, by a section 52P determination, to provide copies of statements and information to the public on request may charge for providing those copies.
- (2)
- The charge must be no more than is reasonably required to recover the costs of providing those copies. Section 53E: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
53F Limited exception to obligation to apply input methodologies
- (1)
- Despite section52S ,suppliersthataresubjectonlytoinformation disclosure regulation do not have to apply the following input methodologies in accordance with that section:
- (a)
- pricing methodologies:
- (b)
- methodologiesforevaluatingordeterminingthecostof capital.
- (2)
- However, to avoid doubt, subsection (1) does not affect anything else in this subpart, and in particular does not affect—
- (a)
- section53B(2) (whichmeanstheCommissionmayuse theinputmethodologiesreferredtoinsubsection (1)to monitor and analyse information); and
- (b)
- section53C(2) (whichmeansthatsuppliersmaystillbe requiredtodiscloseinformationaboutthepricingmeth
odologies, and methodologies for evaluation or determining the cost of capital, that they do in fact use). Section 53F: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
Subpart 5—Negotiate/arbitrate regulation
Subpart5: inserted,on14October2008,bysection4oftheCommerceAmend ment Act 2008 (2008 No 70).
53G Purpose of negotiate/arbitrate regulation
Thepurposeofnegotiate/arbitrateregulationistoencouragea supplier and its customers to reach agreement, through negotiation, on the supplier’spricesand qualitystandardsduringa specifiedregulatoryperiod,andtoprovideforbindingarbitration if negotiation is unsuccessful. Section 53G: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
53H Overview of negotiate/arbitrate regulation
- (1)
- If a regulated supplier is subject to negotiate/arbitrate regulation,—
- (a)
- the supplier must enter into negotiations with parties identified by the Commission in order to reach agreement on the matters identified by the Commission (being the prices and quality standards associated with regulated goods or services) that will apply for the regulatory period specified by the Commission; and
- (b)
- if the negotiations fail to reach a settlement of all the matters within the time frames set by the Commission, thepartiesmustenterintoarbitrationtoresolvetheoutstanding matters; and
- (c)
- the terms of the arbitration are set by the Commission, andthearbitralawardisbindingonthepartiesunlessor until they agree to vary it.
- (2)
- This section is only a guide.
Section 53H: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
53I Section 52P determination to set out requirements for application of negotiate/arbitrate regulation
- (1)
- If negotiate/arbitrate regulation applies to regulated goods or services, the section 52P determination must set out the fol lowing:
- (a)
- the parties to the negotiation or arbitration:
- (b)
- the matters (including the prices and quality standards associatedwiththeregulatedgoodsorservices)thatthe partiesmustagreetobynegotiation,orareboundtoby arbitral award:
- (c)
- the period or periods for which any negotiated settlement or arbitral award applies:
- (d)
- a reference to the input methodologies that apply:
- (e)
- theinformationthatthepartiesmustprovidetotheother parties and, if necessary, the arbitrator, and the time frames for that provision:
- (f)
- the processes for negotiations, including the form of involvement by the parties, and the form, scope, and coverage of any negotiated settlement:
- (g)
- thetimeframesforthenegotiations(includingstagesin negotiations)and,inparticular,thedatebywhich,ifnegotiations are not complete, the parties must enter into arbitration to settle any remaining unresolved matters:
- (h)
- thetermsofanycompulsoryarbitrationthattakesplace under section 53J, including its form, procedures, the allocation of costs, and powers of the arbitrator:
- (i)
- the date by which the arbitral award must be made:
- (j)
- the manner in which the parties must make publicly available any negotiated settlement, arbitral award, or both.
- (2)
- The Commission may include in the determination any other mattersitconsidersnecessaryordesirabletopromotethepurpose of negotiate/arbitrate regulation.
- (3)
- If the parties to a negotiation agree to arbitration, the arbitrationmaybeonwhatevertermstheyagreeto,butmustbecompleted within the time frames set for the negotiation.
- (4)
- TheCommissionmayextendanytimeframessetoutina sec tion 52P determination.
- (5)
- The terms of arbitration set by the Commission must—
- (a)
- allow the parties a reasonable period within which to agree on an arbitrator but, if agreement is not reached within that period (or any extended period allowed under subsection (4)), the terms must provide that the Commission must appoint the arbitrator (and may not appoint itself as the arbitrator); and
- (b)
- include provisions enabling the parties to enforce the arbitral award; and
- (c)
- includearightofappealtotheHighCourt,exercisable by any party to the arbitration, on a point of law only.
Section 53I: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
53J Compulsory arbitration
- (1)
- Ifasettlementisnotreached(whetherbynegotiationorvoluntaryarbitration)withinthetimeframesetbytheCommission, thepartiesmustenterintoarbitrationunderthissectiononthe terms set out in the section 52P determination.
- (2)
- The Arbitration Act 1996 does not apply to arbitration under this section,but the Commissionmay,insettingouttheterms of the arbitration in the section 52P determination, apply any provisions of that Act to the arbitration.
- (3)
- Thearbitrator’sroleistomakeanarbitralawardthatpromotes the purpose of this Part.
- (4)
- If final consumers of regulated goods or services are not directly represented as parties in the arbitration, the arbitrator musthaveparticularregardtotheeffectoftheoutcomeofthe arbitration on those final consumers.
- (5)
- The arbitral award is binding on the parties to the arbitration unless or until the parties agree to vary it. Section 53J: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
Subpart6—Default/customisedprice-quality regulation
Subpart6: inserted,on14October2008,bysection4oftheCommerceAmend ment Act 2008 (2008 No 70).
53K Purpose of default/customised price-quality regulation The purpose of default/customised price-quality regulation is to provide a relatively low-cost way of setting price-quality pathsforsuppliersofregulatedgoodsorservices,whileallowing the opportunity for individual regulated suppliers to have alternative price-quality paths that better meet their particular circumstances. Section 53K: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
53L Overview of default/customised price-quality regulation
- (1)
- If goods or services are subject to default/customised price-quality regulation,—
- (a)
- the Commission sets default price-quality paths that apply for a regulatory period, and all regulated suppliers must apply those default price-quality paths; but
- (b)
- individual suppliers may make a proposal to the Commission for a customised price-quality path; and
- (c)
- the Commission may set a customised price-quality path for the supplier, and that then applies for a set period instead of aspecified default price-quality path.
- (2)
- This section is only a guide.
Section 53L: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
53M Content and timing of price-quality paths
- (1)
- Every price-quality path (whether a default price-quality path or a customised price-quality path under this subpart, or an individualprice-qualitypathunder subpart7 )mustspecify,—
- (a)
- inrelationtoprices,eitherorbothofthefollowingwith respect to a specified regulatory period:
- (i)
- themaximumpriceorpricesthatmaybecharged by a regulated supplier:
- (ii)
- themaximumrevenuesthatmayberecoveredby a regulated supplier; and
- (b)
- the quality standards that must be met by the regulated supplier; and
- (c)
- the regulatory period.
- (2)
- A price-quality path may include incentives for an individual suppliertomaintainorimproveitsqualityofsupply,andthose incentivesmayinclude(withoutlimitation)anyofthefollowing:
- (a)
- penalties by way of a reduction in the supplier’s maximum prices or revenues based on whether, or by what amount, the supplier fails to meet the required quality standards:
- (b)
- rewards by way of an increase in the supplier’s maximum prices or revenue based on whether, or by what amount,thesuppliermeetsorexceedstherequiredquality standards:
- (c)
- consumer compensation schemes that set minimum standards of performance and require the supplier to pay prescribed amounts of compensation to consumers if it fails to meet those standards:
- (d)
- reporting requirements, including special reporting requirements in asset management plans, if the supplier fails to meet the quality standards.
- (3)
- QualitystandardsmaybeprescribedinanywaytheCommission considers appropriate (such as targets, bands, or formulae) and may include (without limitation)—
- (a)
- responsiveness to consumers; and
- (b)
- inrelationtoelectricitylinesservices,reliabilityofsupply, reduction in energy losses, and voltage stability or other technical requirements.
- (4)
- A regulatory period must be 5 years.
- (5)
- However, the Commission may set a shorter period than 5yearsifitconsidersthatitwouldbettermeetthepurposesof thisPart,butinanyeventmaynotsetatermlessthan4years.
- (6)
- Subsections (4) and (5) are subject to section 53W.
- (7)
- No default price-quality path applies to a supplier until the datespecifiedintherelevant section52P determination,which
must be a date atleast 4 months aftera summary of thedetermination is published in the Gazette under section 52P(7)(b). Section 53M: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
53N Monitoring compliance with price-quality paths For the purpose of monitoring compliance with a price-quality path (whether a default price-quality path or a customised price-quality path under this subpart, or an individual price- quality path under subpart 7), the Commission may, in add itiontoexercisingitspowersunder section98 , issueawritten noticetoaregulatedsupplierrequiringittoprovideanyorall of the following:
- (a)
- a written statement that states whether or not the supplier has complied with the price-quality path applying to that supplier:
- (b)
- a report on the written statement referred to in paragraph(a)thatissignedbyanauditorinaccordancewith any form specified by the Commission:
- (c)
- sufficient information to enable the Commission to properlydeterminewhetherallapplicableprice-quality paths have been complied with:
- (d)
- a certificate, in the form specified by the Commission andsignedbyatleast1directorofthesupplier,confirming the truth and accuracy of any information provided under this section.
Section 53N: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
Default price-quality path
Heading: inserted,on14October2008,bysection4oftheCommerceAmend ment Act 2008 (2008 No 70).
53O Section 52P determination to set out requirements of default price-quality paths Ifdefaultprice-qualityregulationappliestoregulatedgoodsor services, the section 52P determination must set out a default price-quality path that includes—
- (a)
- the starting prices that apply to the supply of the goods or services during the first regulatory period; and
- (b)
- therateorratesofchangeinprices,relativetotheConsumer Price Index, allowed during the first regulatory period; and
- (c)
- the quality standards that apply during the first regulatory period; and
- (d)
- thedateordatesonwhichthedefaultprice-qualitypath (or any part of it) takes effect; and
- (e)
- theannualdatebywhichanyproposalforacustomised price-quality path must be received; and
- (f)
- the annual date by which compliance must be demon strated in accordance with section 53N.
Section 53O: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
53P Resetting starting prices, rates of change, and quality standards
- (1)
- Before the end of the first and every subsequent regulatory period, the Commission must amend the section 52P deter minationbysettingoutthestartingprices(asreferredtoin sec tion53O(a) ),ratesofchange(asreferredtoinsection53O(b)), and quality standards (as referred to in section 53O(c)) that apply for the following regulatory period.
- (2)
- Inresettingstartingprices,ratesofchange,andqualitystandards, the Commission must consult with interested parties.
- (3)
- The starting prices must be either—
- (a)
- thepricesthatappliedattheendoftheprecedingregulatory period; or
- (b)
- prices, determined by the Commission, that are based on the current and projected profitability of each supplier.
- (4)
- Starting prices set in accordance with subsection (3)(b) must notseektorecoveranyexcessiveprofitsmadeduringanyearlier period.
- (5)
- Subjecttosubsection(8),theCommissionmustsetonly1rate ofchangepertypeofregulatedgoodsorservices(forexample, iftherateofchange(x)is1%inaCPI−x path,1%mustbethe rate for all goods or services of that type).
- (6)
- The rate of change must be based on the long-run average productivity improvement rate achieved by either or both of suppliers in New Zealand, and suppliers in other comparable countries, of the relevant goods or services, using whatever measuresofproductivitytheCommissionconsidersappropriate.
- (7)
- When setting the rate of change, the Commission may take into account the effects of inflation on the inputs of suppliers of the relevant goods or services.
- (8)
- TheCommissionmaysetalternativeratesofchangeforaparticular supplier—
- (a)
- as an alternative, in whole or in part, to the starting prices set under subsection (3)(b) if, in the Commission’sopinion,thisisnecessaryordesirabletominimise any undue financialhardshiptothesupplier or tominimise price shock to consumers; or
- (b)
- as an incentive (under section 53M(2)) for the supplier to improve its quality of supply.
- (9)
- Any alternative rates of change set under subsection (8) may include step changes.
- (10)
- The Commission may not, for the purposes of this section, use comparative benchmarking on efficiency in order to set startingprices,ratesofchange,qualitystandards,orincentives to improve quality of supply.
- (11)
- If starting prices, rates of change, and quality standards have not been set by way of an amendment to the relevant sec tion 52P determination by the end of the regulatory period to whichitapplies,thestartingprices,ratesofchange,andqualitystandardsthatapplyattheendoftheregulatoryperiodcontinue to apply until the reset starting prices, rates of change, and quality standards are set. Section 53P: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
Customised price-quality paths
Heading: inserted,on14October2008,bysection4oftheCommerceAmend ment Act 2008 (2008 No 70).
53Q Supplier may propose customised price-quality path
- (1)
- Atanytimeafteradefaultprice-qualitypathissetbytheCommission, a supplier that is (or is likely to be) subject to the default price-quality path may make a proposal to the Commission for a customised price-quality path to apply to that supplier.
- (2)
- Every proposal must—
- (a)
- complywiththeinputmethodologiesreferredtoin sec tion 52T(1)(d) relating to the process for, and content of, customised price-quality path proposals; and
- (b)
- be made within the period, or by the annual date, spe cifiedfor the purpose in the section 52Pdetermination; and
- (c)
- include the standard application fee for customised price-quality path proposals; and
- (d)
- apply or adopt all relevant input methodologies.
- (3)
- A supplier may make only 1 proposal during a regulatory period, and may not make a proposal within the 12 months before a default price-quality path is due to be reset.
- (4)
- Asupplierthatmakesaproposalmustmakeitpubliclyavailable as soon aspracticable afterit hasbeen madeto the Commission. Section 53Q: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
53R Effect of making proposal for customised price-quality path
A supplier that makes a proposal to the Commission—
- (a)
- cannot withdraw the proposal; and
- (b)
- is bound, for the regulatory period to which it applies, by any customised price-quality path that the Commission subsequently sets for the supplier.
Section 53R: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
53S Preliminary assessment of proposal
- (1)
- Within 40 working days after receiving a proposal, the Commission must determine whether the proposal complies with theinputmethodologiesreferredtoin section52T(1)(d) relatingtotheprocessfor,andcontentof,customisedprice-quality path proposals.
- (2)
- If the proposal does not comply with those requirements, the Commission may, at its discretion,—
- (a)
- discontinue any consideration of the proposal; or
- (b)
- request the supplier to remedy the deficiencies in the proposal by providing additional information within 40 working days.
- (3)
- If the supplier fails to provide any additional information requestedbytheCommissionundersubsection(2)(b),theCommission may discontinue any consideration of the proposal.
- (4)
- If a proposal is discontinued under subsection (2) or (3), sec tion53Q(3) doesnotapplyandthesuppliermaymakeanother proposalwithintheregulatoryperiod(exceptinthe12months before the default price-quality path is due to be reset). Section 53S: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
53T Process and timing for assessing proposal
- (1)
- Once the Commission decides that a proposal complies with theinputmethodologiesrelatingtotheprocessfor,andcontent of, customised price-quality path proposals, it must—
- (a)
- givenoticethattheproposalisunderconsideration,and how copies of the proposal may be obtained; and
- (b)
- setadateforinterestedpersonstomakesubmissionson the proposal; and
- (c)
- have regard to any submissions made by that date.
- (2)
- The Commission must make a determination on a proposal for a customised price-quality path within 150 working days of receiving a complete proposal,subject to sections 53Uand 53Z . Section 53T: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
53U Extension of time frames
The time frames specified in sections 53S and 53T may, with the agreement of the supplier and the Commission, each be extended by a total of up to 30 working days. Section 53U: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
53V Determination setting customised price-quality path
- (1)
- TheCommissionmaydetermineanycustomisedprice-quality paththattheCommissionconsidersappropriateforasupplier that has made a proposal.
- (2)
- To avoid doubt, and without limitation, in determining a customisedprice-qualitypaththatcomplieswith section53M the Commission may do any of the following:
- (a)
- set a price-quality path that is lower, or otherwise less favourable to the regulated supplier, than the default price-quality path that would otherwise apply:
- (b)
- ifitsetsalowerorahigherpricethanappliedunderthe default price-quality path, apply claw-back:
- (c)
- withtheagreementofthesupplier,varyaninputmethodology that would otherwise apply to the supplier.
- (3)
- A customised price-quality path for a supplier is imposed by way of an amendment to the section 52P determination relat ingtothedefault/customisedprice-qualityregulationapplying to the supplier. Section 53V: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
53W Term of customised price-quality paths
- (1)
- A customised price-quality path applies for 5 years.
- (2)
- However, the Commission may set a shorter period than 5 years if it considers this would better meet the purpose of thisPart,butinanyeventmaynotsetatermlessthan3years. Section 53W: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
53X What happens when customised price-quality path ends
- (1)
- Whenthecustomisedprice-qualitypathofasupplierofgoods or services ends, the supplier is subject to the default price quality path that is generally applicable to other suppliers of those goods or services.
- (2)
- The starting prices that apply at the beginning of the default price-quality path are those that applied at the end of the customisedprice-qualitypathunless,atleast4monthsbeforethe end of the customised price-qualitypath, theCommissionadvises the supplier that different starting prices must apply.
- (3)
- The supplier remains subject to the default price-quality path until—
- (a)
- the end of the period for which it applies to other suppliers; or
- (b)
- a new customised price-quality path begins to apply to the supplier.
- (4)
- To avoid doubt, a supplier who is or was subject to a cus tomised price-quality path may apply in accordance with sec tion 53Q for another customised price-quality path. Section 53X: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
53Y Commission’s costs relating to assessing, setting, and reconsidering customised price-quality path
(1) The Commission’s costs in assessing a proposal for, and settingorreconsidering,acustomisedprice-qualitypathmustbe met by the person who makes the proposal for a customised price-quality path.
(1A) If the amount paid by a person in respect of a proposal for a customisedprice-qualitypathexceedstheCommission’scosts in assessing the proposal and (if applicable) setting or reconsidering the customised price-quality path, the Commission may refund the excess to the person who paid it.
(2) ThecostsmayberecoveredinwhatevermannertheCommission determines. Section 53Y: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
Section53Yheading: amended,on1November2010,bysection148(1)ofthe Electricity Industry Act 2010 (2010 No 116).
Section53Y(1): amended,on1November2010,bysection148(2)oftheElec tricity Industry Act 2010 (2010 No 116).
Section53Y(1A):inserted,on1November2010,by section148(3) oftheElectricity Industry Act 2010 (2010 No 116).
53Z Prioritisation by Commission
- (1)
- The Commission is not required to consider any more than 4 proposals for a customised price-quality path relating to the same type of regulated goods or services in any one year.
- (2)
- If the Commission receives more than 4 proposals for a customised price-quality path relating to the same type of regulated goods or services in any one year, the Commission—
- (a)
- maydefertheadditionalproposalstoasubsequentyear; but
- (b)
- must prioritise its consideration of the proposals in accordance with the criteria in subsection (3).
- (3)
- ThecriteriaforCommissiondecisionsonprioritiesareasfollows:
- (a)
- quality and completeness of the initial proposal:
- (b)
- urgency of any proposed additional investment (compared to historic rates of investment) required to meet consumer requirements on quality:
- (c)
- materiality of the proposal relative to the size and revenues of the supplier.
Section 53Z: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
53ZA What happens if Commission does not make decision within time frame
- (1)
- This section applies if the Commission does not make a determination within 150 working days of receiving a complete proposal (or within any extended time agreed under section 53U).
- (2)
- If the regulated supplier has not complied, in the Commission’s opinion, with any reasonable exercise by the Commis sion of its information-gathering powers under section 53ZD or 98, the default price-quality path continues in effect at the closeofthatperiod,andtheCommissionmustnotifythesupplier accordingly.
- (3)
- Iftheregulatedsupplierhassocomplied,thecustomisedpro posal made under section 53Q takes effect at the close of that period.
- (4)
- If a customised price-quality path proposal takes effect under subsection (3), the Commission must immediately prepare an
amendment to the relevant section 52P determination, setting outthecustomisedprice-qualitypathapplyingtothesupplier. Section 53ZA: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
What happens to price-quality paths if inputmethodologies change
Heading: inserted,on14October2008,bysection4oftheCommerceAmend ment Act 2008 (2008 No 70).
53ZB What happens to price-quality paths if input methodologies change
- (1)
- Defaultorcustomisedprice-qualitypathsmaynotbereopened within a regulatory period on the grounds of a change in an input methodology, except as provided in subsection (2).
- (2)
- Everydefaultandcustomisedprice-qualitypathmustbereset by the Commission in accordance with section 53P if—
- (a)
- an input methodology changes as a result of an appeal under section 52Z; and
- (b)
- had the changed methodology applied at the time the price-quality path was set, it would have resulted in a materially different path being set.
- (3)
- When resetting a default or customised price-quality path under subsection (2), the Commission must apply claw-back. Section 53ZB: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
Subpart 7—Individual price-quality regulation
Subpart7: inserted,on14October2008,bysection4oftheCommerceAmend ment Act 2008 (2008 No 70).
53ZC Price-quality path for individual businesses
- (1)
- If individual price-quality regulation applies to goods or services supplied by a supplier, the Commission may set the price-quality path for that supplier using any process, and in any way, it thinks fit, but must use the input methodologies that apply to the supply of those goods or services.
- (2)
- The following provisions of subpart 6 apply (with all neces sary modifications) where individual price-quality regulation is imposed:
- (a)
- sections 53M and 53N:
- (b)
- section 53ZB.
Section 53ZC: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
Subpart 8—Miscellaneous provisions
Subpart8: inserted,on14October2008,bysection4oftheCommerceAmend ment Act 2008 (2008 No 70).
53ZD Powers of Commission under this Part Forthepurposeofcarryingoutitsfunctionsandexercisingits powers under this Part, the Commission may, in addition to exercising its powers under section 98, do any of the follow ing:
- (a)
- consultwithanypersontheCommissionconsidersmay assist it:
- (b)
- investigate any of the following:
- (i)
- how effectively and efficiently any supplier of the goods or services is supplying the goods or services:
- (ii)
- how any formula, methodology, or price-quality path being considered by the Commission may beapplied,orhowanyformula,methodology,or price-quality provision determined or authorised by the Commission has been applied, in considering proposed prices or quality standards:
- (c)
- examine,consider,orinvestigateanyactivity,cost,revenue, transfer, asset valuation, circumstance, or event that is occurring or that has occurred during the previous 7 years:
- (d)
- by notice in writing, require any supplier of the goods or services—
- (i)
- to prepare and produce forecasts, forward plans, or other information; and
- (ii)
- toapplyanymethodologyspecifiedbytheCommission in the preparation of forecasts, forward plans, or other information:
- (e)
- by notice in writing, require any supplier of the goods or services, or any previous supplier of them that the Commission has reason to believe may have information or documents relevant to the investigation, audit, or inquiry, at the time and place specified in the notice, to do either or both of the following:
- (i)
- produceorsupplytotheCommissiondocuments and information in relation to the goods or services,orthepricesoroperationsofthepersonin respect of the goods or services:
- (ii)
- to answer any questions about any matter that the Commission has reason to believe may be relevant to the investigation, audit, or inquiry:
- (f)
- by notice in writing, require any supplier of the goods or services, at the time and place specified in the notice, to produce or supply to the Commission an expert opinionfromanappropriatelyqualifiedperson,orfrom a member of a class of appropriately qualified persons, asdeterminedbytheCommissioninrelationtothematters in paragraph (b), (c), (d), or (e)(i).
Section 53ZD: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
53ZE Levies
- (1)
- Every supplier of regulated goods or services (or prescribed class of suppliers of regulated goods or services) must pay to the Minister the levy determined in accordance with regulations made under subsection (2).
- (2)
- TheGovernor-Generalmay,byOrderinCouncilmadeonthe recommendation of the Minister, make regulations—
- (a)
- specifying the amount of levies, or method of calculatingorascertainingtheamountoflevies,onthebasisthat the estimated costs of performing the Commission’s functions, powers, and duties under this Part, and of collecting the levy money, should be met fully out of levies:
- (b)
- including, or providing for the inclusion, in levies of any shortfall in recovering those actual costs:
- (c)
- refunding, or providing for refunds of, any over-recovery of those actual costs:
- (d)
- providingdifferentleviesfordifferentclassesofsuppliers or goods or services:
- (e)
- specifying the financial year or part financial year to which those levies apply, and applying to that financial yearorpartfinancialyearandeachsubsequentfinancial year until revoked or replaced:
- (f)
- providing for the payment and collection of those levies:
- (g)
- for the first financial year to which the levy applies to a supplier or class of suppliers, including in the levy amount or method costs incurred by the Commission inconnectionwithpreparing itself toperform,andperforming, its functions, powers, and duties under this Part, irrespective of the fact—
- (i)
- thattheregulationsaremadeandcomeintoeffect after that year; or
- (ii)
- that the goods or services become regulated after the costs were incurred (for example, costs incurred by the Commission in preparing input methodologies):
- (h)
- requiring payment of a levy for a financial year or part financial year, irrespective of the fact that the regulations may be made after that financial year has commenced:
- (i)
- exempting or providing for exemptions from, and providing for waivers of, the whole or any part of the levy for any case or class of cases.
- (3)
- The amount of any unpaid levy is recoverable in any court of competent jurisdiction as a debt due to the Crown.
- (4)
- The Minister must consult with the suppliers of regulated goodsorservices,orrepresentativesofthosesuppliers,before making a recommendation for the purposes of subsection (2). Section 53ZE: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
53ZF Material may be incorporated by reference
Schedule 5 applies if the Commission wishes to incorporate material by reference in any of the following documents:
- (a)
- a section 52P determination:
- (b)
- an input methodology.
Section 53ZF: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
53ZG Power to exempt disclosure of commercially sensitive information
- (1)
- The Commission may, on application, exempt any person or classofpersons,inrespectofanyinformationorclassofinformationthattheCommissionconsiderstobecommerciallysensitive, from any obligation to make that information publicly available as part of the requirements of information disclosure regulation, negotiate/arbitrate regulation, or customised price-quality regulation.
- (2)
- The Commission may grant the exemption on any terms and conditions that it thinks fit.
- (3)
- The exemption must be granted by notice in the Gazette, and takes effect from the date specified in the exemption (which must not be earlier than the date of the Gazette notice).
- (4)
- The Commission may, in like manner, vary or revoke any exemption.
- (5)
- The Commission must keep a list of all current exemptions made by it under this section available for public inspection free of charge during normal office hours of the Commission at the offices of the Commission.
- (6)
- Anexemptionunderthissectionisnotaregulationwithinthe meaning of the Regulations (Disallowance) Act 1989 or the Acts and Regulations Publication Act 1989. Section 53ZG: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
Subpart 9—Electricity lines services
Subpart 9 heading: inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
Application, overview, and interpretation
Heading: inserted,on1April2009,bysection4oftheCommerceAmendment Act 2008 (2008 No 70).
54 Overview of how subpart applies
- (1)
- This subpart provides—
- (a)
- thatallsuppliersofelectricitylinesservicesaresubject to information disclosure regulation; and
- (b)
- that suppliers of electricity lines services that are not consumer-ownedarealsosubjecttoprice-qualityregulation; and
- (c)
- forthetransitiontothenewregimeprovidedforinthis Part.
- (2)
- This section is only a guide.
Section54: substituted,on1April2009,bysection4oftheCommerceAmend ment Act 2008 (2008 No 70).
54A Overview of when subpart applies
- (1)
- This subpart applies on and after 1 April 2009.
- (2)
- However, sections 54D(3) and 54N apply as soon as the rest of this Part comes into force.
- (3)
- This section is only a guide.
Section54A:inserted,on1April2009,by section4 oftheCommerceAmendment Act 2008 (2008 No 70).
54B Interpretation for subpart
(1) In this subpart, unless the context otherwise requires,— administrative settlement means a deed entered into by the Commission and a supplier of electricity lines services in re
spect of a breach of a threshold or a breach of a default price- quality path referred to in section 54J consumer-owned has the meaning given in section 54D electricitylinesserviceshasthemeaninggivenin section54C Part 4A means Part 4A of this Act as in force immediately
before its repeal by the Commerce Amendment Act 2008 threshold means a threshold set by the Commission under Part 4Aforthe declaration of controlinrelation to large elec tricity lines businesses
Transpower meansTranspowerNewZealandLimitedorany subsidiary of, or successor to, that company.
(2) ReferencesinthissubparttoTranspowerincludereferencesto Transpowerinitsroleassystemoperatorunderthe Electricity Industry Act 2010. Section54B:inserted, on 1April2009,bysection4 oftheCommerceAmend
ment Act 2008 (2008 No 70).
Section 54B(2): added, on 1 November 2010, by section 149 of the Electricity Industry Act 2010 (2010 No 116).
54C Meaning of electricity lines services
- (1)
- In this subpart, unless the context otherwise requires, electricity lines services—
- (a)
- means the conveyance of electricity by line in New Zealand; and
- (b)
- with respect to services performed by Transpower, includes services performed as system operator.
- (2)
- However, none of the following are electricity lines services:
- (a)
- conveyingelectricitysolelyforthesupplier’sownconsumptionorfortheconsumptionofthesupplier’sassociates:
- (b)
- conveying electricity only from a generator to the national grid or from the national grid to a generator:
- (c)
- conveying electricity (other than via the national grid) onlyfromageneratortoalocaldistributionnetworkor from a local distribution network to a generator:
- (d)
- conveying electricity by lines that are not connected, directly or indirectly, to the national grid:
- (e)
- conveying electricity only by a line or lines that are mostly in competition with a line or lines operated by another supplier of electricity lines services that is not anassociateoftheperson,providedthatthecompetition is actual competition and not potential competition:
- (f)
- conveying electricity if the total circuit length of all of the prescribed voltage electric lines provided by the supplier (or over which electricity is conveyed by the supplier,asthecasemaybe)islessthan25kilometres:
- (g)
- conveying electricity if the total amount of electricity conveyed to consumers by the supplier is less than 20 gigawatt hours per annum:
- (h)
- conveying electricity if the total number of consumers to whomthe supplier conveys electricity is less than 500.
- (3)
- Theprescribedvoltageelectriclines,theelectricityconveyed, or the number of consumers to whom electricity is conveyed, when measured in relation to a supplier include, for the purposesofsubsection(2)(f)to(h),thelinesprovidedby,electricityconveyedby,ornumberofconsumersof,anyassociateof the supplier.
(4) In this section, unless the context otherwise requires,— associate has the same meaning as in section 73 of the Elec tricity Industry Act 2010 consumerhasthesamemeaningasin section2(1) oftheElec
tricity Act 1992
lineshasthesamemeaningasin section2(1) oftheElectricity Act 1992 national grid has the same meaning as in section 5 of the
Electricity Industry Act 2010 prescribed voltage electric line means a line that is capable of conveying electricity at a voltage equal to or greater than
3.3 kilovolts.
Section54C:inserted, on 1April2009,bysection4 oftheCommerceAmend ment Act 2008 (2008 No 70).
Section 54C(1): substituted, on 1 November 2010, by section 150(1) of the Electricity Industry Act 2010 (2010 No 116).
Section 54C(4) associate : amended, on 1 November 2010, by section 150(2) of the Electricity Industry Act 2010 (2010 No 116).
Section 54C(4) national grid : amended, on 1 November 2010, by section 150(3) of the Electricity Industry Act 2010 (2010 No 116).
54D Definition of consumer-owned
- (1)
- In this subpart, unless the context otherwise requires, a supplier is consumer-owned if it is a supplier that meets the following criteria:
- (a)
- all the control rights and all the equity return rights (within the meaning of clause 6 of Schedule 2 of the Electricity Industry Act 2010) in the supplier are held by1ormorecustomertrusts,communitytrusts,orcustomer co-operatives; and
- (b)
- the trustees of each customer trust or community trust, or the committee of shareholders of each customer co-operative, as the case may be, that is referred to in paragraph (a) are elected by the persons who are consumers of the supplier in accordance with subsections (2A) to (2C); and
- (c)
- at least 90% of the persons who are consumers of the supplier as at an income distribution resolution date benefit from that income distribution; and
- (d)
- the supplier has fewer than 150 000 ICPs.
- (2)
- In this section, unless the context otherwise requires,—
communitytrust,inrelationtoasupplier,isatrustinrespect of which—
- (a)
- at least 90% of the income beneficiaries comprise personswhoareaclassorclassesidentifiedbyreferenceto their domicile or location or operation within the geographic area or areas of operation of the supplier; and
- (b)
- atleast90%ofitsincomedistributionsarepaidtothose beneficiaries or for purposes related to that geographic area or areas
consumerhasthesamemeaningasin section2(1) oftheElectricity Act 1992, and includes, for the purposes of references to the election of trustees in this section and section 54H, any personwhoislistedonanelectoralrollasaresidentofanaddress that consumes the electricity in question
customer co-operative, in relation to a supplier, means a co-operative company (as defined in section 2(1) of the Co-operativeCompaniesAct1996)thathasthecharacteristics described in the definition of customer trust in this subsection, applied as if references to trusts were to co-operatives, references to income beneficiaries were to shareholders, and
all other necessary modifications were made customer trust, in relation to a supplier, means a trust in respect of which—
- (a)
- at least 90% of the income beneficiaries comprise persons who are a class or classes identified by reference to any of—
- (i)
- the person’s connection to the lines of the supplier:
- (ii)
- the person’s receipt of electricity from the supplier:
- (iv)
- theperson’sliabilityforpaymentfortheconnection to the lines of the supplier:
- (v)
- theperson’sliabilityforpaymentforlineservices supplied by the supplier; and
- (b)
- atleast90%ofitsincomedistributionsarepaidtothose
beneficiaries ICP means a point of connection on a local or an embedded network at which a retailer supplies electricity to a consumer
income distribution resolution date means the date that a supplier, or the trust or co-operative that owns a supplier, as the case may be, resolves to make an income distribution to beneficiaries.
(2A) The requirements in respect of elections for the purposes of subsection (1)(b) are as follows:
- (a)
- every trustee of the customer trust or community trust, or every member of the committee of shareholders of each customer co-operative, as the case may be, must have been elected solely by the persons who are consumers of the supplier; and
- (b)
- either—
- (i)
- atleast90%ofthepersonswhoareconsumersof thesupplieratthetimeoftheelectionareeligible to vote in those elections; or
- (ii)
- inthecaseofacustomertrustorcommunitytrust, thereisward-basedvotingthatcomplieswiththe requirements of subsection (2B); and
(c) each consumer must have an equal vote. (2B) The requirements for ward-based voting are as follows:
- (a)
- atleast90%ofthepersonsinawardwhoareconsumers of the supplier at the time of the election are eligible to vote in the election of all of the trustees of that ward; and
- (b)
- wardboundariesmustprovideforeffectiveandfairrepresentation ofallconsumersof the supplier, andinparticular,—
- (i)
- the proportion of consumers in relation to the number of trustees of the relevant trust must be approximately equal in each ward; and
- (ii)
- the wards must not be based on volume of electricity supplied; and
- (c)
- ward boundaries must be reviewed periodically (at intervals determined by the Commission) in consultation with all consumers of the supplier.
(2C) Atrusteeofacustomertrustorcommunitytrust,oramember of the committee of shareholders of a customer co-operative, as the case may be, must be treated as having been elected solelybythepersonswhoareconsumersofthesupplierifthe person—
- (a)
- has been declared to be elected without an election in the case of a nominee at an election where the number of nominations was equal to or less than the number of vacancies; or
- (b)
- has been declared to be elected as the next-highestpolling candidate in the case where a higher-polling candidate at the election was unable to fill the elected position; or
- (c)
- has been declared to be elected by the remaining trustees or members following a casual vacancy that arose between elections, provided that—
- (i)
- the person is the first person to have been so electedsincethelastelectionatwhichconsumers of the supplier voted; and
- (ii)
- the person is elected to hold office only until the next scheduled election at which consumers of the supplier will vote.
(2D) The Commerce Commission may require a supplier that claims to meet the criteria in this section to verify that claim by statutory declaration.
(2E) The declaration must be made by the persons and in the form required by the Commerce Commission.
- (3)
- As soon as practicable after this subsection comes into force, the Minister must publish a notice in the Gazette stating the namesofthesuppliersthatareconsumer-ownedasatthatdate.
- (4)
- The notice in subsection (3) is only for information purposes and has no legal effect. Section54D:inserted,on1April2009,by section4 oftheCommerceAmend
ment Act 2008 (2008 No 70).
Section 54D(1)(a): amended, on 1 November 2010, by section 151(1) of the Electricity Industry Act 2010 (2010 No 116).
Section 54D(1)(b): substituted, on 1 November 2010, by section 151(2) of the Electricity Industry Act 2010 (2010 No 116).
Section54D(2A):inserted,on1November2010,by section151(3) oftheElectricity Industry Act 2010 (2010 No 116).
Section54D(2B):inserted,on1November2010,by section151(3) oftheElectricity Industry Act 2010 (2010 No 116).
Section54D(2C):inserted,on1November2010,by section151(3) oftheElectricity Industry Act 2010 (2010 No 116).
Section54D(2D):inserted,on1November2010,by section151(3) oftheElectricity Industry Act 2010 (2010 No 116).
Section54D(2E):inserted,on1November2010,by section151(3) oftheElectricity Industry Act 2010 (2010 No 116).
Section 54D(3): brought into force, on 14 October 2008, by section 2(1)(b) of the Commerce Amendment Act 2008 (2008 No 70).
Imposition of regulation under this Part
Heading: inserted,on1April2009,bysection4oftheCommerceAmendment Act 2008 (2008 No 70).
54E Electricity lines services declared to be regulated
Electricity lines services are regulated under this Part.
Section54E: inserted,on 1April 2009,by section 4 oftheCommerceAmend ment Act 2008 (2008 No 70).
54F All electricity lines services are subject to information disclosure regulation
Allelectricitylinesservicesaresubjecttoinformationdisclosure regulation under this Part. Section54F: inserted, on 1 April2009,by section4 of the CommerceAmend
ment Act 2008 (2008 No 70).
54G Certain electricity lines services are also subject to default/customised price-quality regulation
- (1)
- All electricity lines services (other than those supplied by Transpower) are subject to default/customised price-quality regulation under this Part unless they are exempt.
- (2)
- Allelectricitylinesservicesthataresuppliedbyasupplierthat is consumer-owned are exempt (unless an Order in Council has been made in respect of the service under section 54H). Section54G:inserted,on1April2009,by section4 oftheCommerceAmend
ment Act 2008 (2008 No 70).
54H How exempt status can be lost and default/customised price-quality regulation can be applied to consumer-owned suppliers
- (1)
- Electricitylinesservicesthataresuppliedbyasupplierthatis consumer-owned cease to be exempt for the purpose of sec tion54G (andthereforebecomesubjecttodefault/customised price-quality regulation under this Part) if the Governor-General, by Order in Council, declares that this section applies.
- (2)
- TheMinistermaymakearecommendationonlyiftheMinister is satisfied that either—
- (a)
- theCommissionhasadvisedtheMinisterthatasupplier has ceased to be consumer-owned within the meaning of section 54D; or
- (b)
- the Commission has recommended to the Minister that the purpose of this Part would be better met if price-quality regulation were imposed on the supplier under this Part.
(2A) A supplier must give notice in writing to the Commission within 10 working days after becoming aware that it has ceased to be consumer-owned.
(3) TheCommissionmaymakearecommendationundersubsection(2)(b)onlyfollowingconsiderationofapetitionmadeby 1 or more of the following:
- (a)
- 15%ofthepersonswhoaredomesticconsumersofthe supplier as at the date of the petition who are eligible to vote in elections for trustees of the customer trust or community trust, or for members of the committee of shareholders of the customer co-operative:
- (b)
- 20%ofthepersonswhoaredomesticconsumersofthe supplier as at that date who are not eligible to vote in elections for trustees of the customer trust or community trust, or for members of the committee of shareholders of the customer co-operative:
- (c)
- 25% of the persons who are non-domestic consumers (either by number or by consumption of that class of consumer) of the supplier as at that date.
(3A) In this section, domestic consumer has the same meaning as in section 5 of the Electricity Industry Act 2010.
- (4)
- If exact figures are not available as to the number of persons in a class referred to in subsection (3), the Commission may rely on any estimate that the Commission considers to be a reasonable estimate.
- (5)
- Petition means a petition to the Commission seeking the application of price-quality regulation to all or any of the electricity lines services of the relevant supplier, and that records the signatures of the signatories.
- (6)
- The Governor-General may, on the recommendation of the Minister, make an Order in Council in accordance with this section. Section54H:inserted,on1April2009,by section4 oftheCommerceAmend
ment Act 2008 (2008 No 70).
Section54H(2A):inserted,on1November2010,by section152(1) oftheElectricity Industry Act 2010 (2010 No 116).
Section 54H(3)(a): substituted, on 1 November 2010, by section 152(2) of the Electricity Industry Act 2010 (2010 No 116).
Section 54H(3)(b): substituted, on 1 November 2010, by section 152(2) of the Electricity Industry Act 2010 (2010 No 116).
Section 54H(3)(c): substituted, on 1 November 2010, by section 152(2) of the Electricity Industry Act 2010 (2010 No 116).
Section54H(3A):inserted,on1November2010,by section152(3) oftheElectricity Industry Act 2010 (2010 No 116).
54I Commission must make section 52P determination specifying how subpart applies
- (1)
- The section 52P determinations that specify how information disclosure regulation applies to each supplier of electricity linesservicesmustbemadeassoonaspracticableafter1April 2009.
- (2)
- The section 52P determinations that specify how default/cus tomised price-quality regulation applies to each supplier of electricity lines services that is subject to that form of regu lation as at 1 April 2009 are made as set out in section 54J.
- (3)
- The section 52P determinations that specify how default/cus tomised price-quality regulation applies to each supplier of electricity lines services that becomes subject to that form of regulation as a result of an Order in Council made under sec tion 54H must be made as soon as practicable after the order comes into force. Section 54I: inserted, on 1 April 2009, by section 4 of the Commerce Amend
ment Act 2008 (2008 No 70).
54J Section 52P determinations setting out default price-quality paths applying from 1 April 2009
- (1)
- This section applies in respect of suppliers of electricity lines services that are subject to default/customised price-quality regulation on and after 1 April 2009.
- (2)
- On and after 1 April 2009, the thresholds for large electricity lines businesses that expire on 31 March 2009 are deemed to be section 52P determinations that—
- (a)
- apply those thresholds to each supplier as if the thresholds were default price-quality paths; and
- (b)
- statethattheregulatoryperiodforeachsupplierendson 31 March 2010; and
- (c)
- comply with sections 52P and 53O; and
- (d)
- were notified in the Gazette under section 52P(7)(b) at least 4 months before 1 April 2009.
- (3)
- However, a breach of a default price-quality path before the closeof31March2010mustbedealtwithinaccordancewith section 54N and not under Part 6.
- (4)
- Nothing in this section affects sections 54N and 54O.
Section 54J: inserted, on 1 April 2009, by section 4 of the Commerce Amend ment Act 2008 (2008 No 70).
54K Section 52P determinations setting out default price-quality paths applying from 1 April 2010
- (1)
- Before 1 April 2010, the Commission must reset the default price-quality paths for each supplier that apply on and after that date, using the process set out in section 53P.
- (2)
- The Commission may reset the default price-quality paths even if all or any of the relevant input methodologies have not been determined.
- (3)
- If an input methodology is published after 1 April 2010 and if, had that methodology applied at the time the default pricequalitypathswereresetasrequiredbysubsection(1),itwould have resulted in a materially different path being set, then the Commission may reset the default price-quality paths in ac cordance with section 53P and may apply claw-back, despite section 53ZB(1).
- (4)
- However,theCommissionmaynotexerciseitspowersinsubsection (3) later than 9 months after the date of publication of the input methodology.
- (5)
- Nothing in this section affects sections 54N and 54O.
Section54K:inserted,on1April2009,by section4 oftheCommerceAmendment Act 2008 (2008 No 70).
Transitional arrangements
Heading: inserted,on1April2009,bysection4oftheCommerceAmendment Act 2008 (2008 No 70).
54L Administrative settlements made before 1 April 2009 (other than with Transpower)
- (1)
- This section applies to every administrative settlement acceptedbytheCommissionbefore1April2009inrespectofa breach of a threshold other than an administrative settlement with Transpower.
- (2)
- The enactment of the Commerce Amendment Act 2008 does not limit or affect an administrative settlement to which this section applies, except as provided in this section.
- (3)
- Anybreachoftheadministrativesettlementmustbedealtwith in accordance with the terms of the settlement.
- (4)
- Theexpiryoftheadministrativesettlementmustbetreatedas if it were the end of a customised price-quality path, and sec tion 53X applies accordingly (unless the supplier concerned would not otherwise be subject to default/customised price-quality regulation after the expiry of the settlement). Section54L: inserted,on 1April 2009,by section 4 oftheCommerceAmend
ment Act 2008 (2008 No 70).
54M Administrative settlements with Transpower made before 1 April 2009
- (1)
- This section applies to any administrative settlement with TranspowerthatisacceptedbytheCommissionbefore1April 2009 in respect of a breach of a threshold.
- (2)
- Any breach of an administrative settlement with Transpower may be dealt with under Part 6 as if it were a breach of a cus tomisedprice-qualitypath,despiteanythinginthetermsofthe settlement.
- (3)
- Before the expiry of the administrative settlement, the Commission must recommend to the Minister that an Order in Council be made under section 52N declaring that either—
- (a)
- Transpowerissubjecttodefault/customisedprice-qual ity regulation under subpart 6; or
- (b)
- Transpower is subject to individual price-quality regu lation under subpart 7.
- (4)
- Subpart 2, except the provisions relating to inquiries, applies to the process for imposing that regulation and making the section 52P determination.
- (5)
- If an Order in Council declares that Transpower is subject to default/customised price-quality regulation, the section 52P determination must set the price-quality path that applies for the regulatory period commencing with thedate on which the Order in Council comes into force, using the process under section 53P for resetting default price-quality paths.
(6) [Repealed]
Section54M:inserted,on1April2009,by section4 oftheCommerceAmendment Act 2008 (2008 No 70).
Section 54M(3)(b): amended, on 1 November 2010, by section 153(1) of the Electricity Industry Act 2010 (2010 No 116).
Section54M(6): repealed,on1November2010,bysection153(2)oftheElec tricity Industry Act 2010 (2010 No 116).
54N Breaches of thresholds and default price-quality paths before 1 April 2010
- (1)
- This section applies to—
- (a)
- anybreachofathresholdthatoccurredbeforetheclose of 31 March 2007; and
- (b)
- anybreachofathresholdthatoccursonorafter1April 2007 and before the close of 31 March 2009; and
- (c)
- anybreachofadefaultprice-qualitypaththatoccurson or after 1 April 2009 and before the close of 31 March 2010.
- (2)
- The Commission may not publish a notice of intention to de clare control under Part 4A,—
- (a)
- inrespectofabreachreferredtoinsubsection(1)(a),at any time after 1 October 2008; and
- (b)
- inrespectofabreachreferredtoinsubsection(1)(b)or (c), at any time after the expiry of 12 months after the end of the financial year in which the breach occurs.
- (3)
- The Commission may, at any time before the expiry of 12 months after the date on which the Commission publishes anoticeofintentiontodeclarecontrolundersubsection(2)in respect of the breach,—
- (a)
- make a control declaration under Part 4A; or
- (b)
- enterintoanadministrativesettlementinrespectofthe breach under Part 4A.
- (4)
- The Commission may do anything under subsections (2) and (3) as if the Commerce Amendment Act 2008 had not been enacted,exceptthatthepurposein section52A mustbetaken to be the purpose of Part 4A.
- (5)
- To avoid doubt, the Commission may, but need not, apply input methodologies in acting under subsection (3).
- (6)
- Despite anything in Part 4A, any control imposed, or admin istrative settlement entered into, under Part 4A in accordance with subsection (3) is subject to the following:
- (a)
- the term of control, or of the settlement, must be not more than 5 years:
- (b)
- the expiry of the term must be treated as if it were the expiry of a customised price-quality path, and sec tion 53X applies accordingly (unless the supplier con cerned would not otherwise be subject to default/customised price-quality regulation after the expiry of the term).
Section 54N: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
54O Breaches of control imposed, or administrative settlements entered into, after 1 April 2009
- (1)
- If a supplier breaches control imposed, or an administrative settlemententeredinto,inaccordancewith section54N(3) ,the breachmaybedealtwithunder Part6 asifitwereabreachof a customised price-quality path, despite anything in the terms of the control or settlement.
- (2)
- Toavoiddoubt,thissectionapplieswhetherornotthesupplier is,after1April2009,subjecttodefault/customisedprice-quality regulation. Section54O:inserted,on1April2009,by section4 oftheCommerceAmend
ment Act 2008 (2008 No 70).
54P Proposals for customised price-quality paths
- (1)
- Asupplierofelectricitylinesservicesmaynotproposeacustomised price-quality path until an input methodology setting out therequirementsandcriteria forproposalsforcustomised price-quality paths (as required by section 52T(1)(d)) is pub lished under section 52W.
- (2)
- However,inaccordancewith section53V(2) ,theCommission mayapplyclaw-backwhensettinganycustomisedprice-quality path. Section54P: inserted, on 1 April2009,by section4 of the CommerceAmend
ment Act 2008 (2008 No 70).
Section54P(1): amended,on1November2010,bysection154(a)oftheElec tricity Industry Act 2010 (2010 No 116).
Section54P(1): amended,on1November2010,bysection154(b)oftheElec tricity Industry Act 2010 (2010 No 116).
Energy efficiency
Heading: inserted,on1April2009,bysection4oftheCommerceAmendment Act 2008 (2008 No 70).
54Q Energy efficiency TheCommissionmustpromoteincentives,andmustavoidimposing disincentives, for suppliers of electricity lines services to invest in energy efficiency and demand side management, and to reduce energy losses, when applying this Part in relation to electricity lines services. Section54Q:inserted,on1April2009,by section4 oftheCommerceAmend
ment Act 2008 (2008 No 70).
Transpower grid upgrade plans and capitalexpenditure proposals
Heading: substituted, on 1 November 2010, by section 155 of the Electricity Industry Act 2010 (2010 No 116).
54R Approval of Transpower’s grid upgrade plans
- (1)
- The role of the Electricity Commission in requesting or approvinggridupgradeplanproposalsbyTranspower(including proposalstoamendexistinggridupgradeplans)istransferred to the Commission on the commencement date.
- (2)
- Subsection(1)appliesbothtoproposalsmadeonandafterthe commencementdateandtoanyproposalsthatwererequested or under consideration by the Electricity Commission before the commencement date.
- (3)
- Until the input methodology required by section 54S is deter mined and published under section 52W,—
- (a)
- Transpower must comply with Part F of the Electricity Governance Rules, as that Part relates to grid upgrade plan proposals; and
- (b)
- when considering grid upgrade plan proposals, the Commission—
- (i)
- must apply, with any necessary modifications, thegridinvestmenttestsetoutinScheduleF4of Part F of the Electricity Governance Rules; and
- (ii)
- must apply, with any necessary modifications, those parts of section III of Part F of the Electricity Governance Rules that relate to the process forapprovinggridupgradeplans(whichincludes rules 12 to 15 and 17.2); and
- (4)
- To avoid doubt,—
- (a)
- subsection (1) takes effect on the commencement date whether or not the Commerce Act (Transpower Thresholds) Notice 2008 or any administrative settlement between the Commission and Transpower has been amended to reflect the transfer referred to in that subsection; and
- (b)
- nothinginthissectionaffectsthetransferfromtheElectricity Commission to the Electricity Authority of all otherrolesrelatingtotransmission,suchassettinggrid reliabilitystandardsandthetransmissionpricingmethodology.
- (5)
- The Commission may change any timetables previously agreedforconsultationon,andapprovalof,gridupgradeplan proposals, butmust firstconsultTranspoweronanytimetable changes.
- (6)
- To facilitate the transfer of roles referred to in subsection (1), the ElectricityAuthoritymust give theCommission copies of allinformationitholdsregardinggridupgradeplanproposals that were under consideration by the Electricity Commission before the commencement date.
- (7)
- In this section,— commencement date means 1 November 2010 ElectricityGovernanceRulesmeanstheElectricityGovern
ance Rules 2003 as they were immediately before their revo cation by the Electricity Industry Act 2010
grid upgrade plan has the meaning set out in the Electricity Governance Rules. Section54R:substituted,on1November2010,by section155 oftheElectricity
Industry Act 2010 (2010 No 116).
54S Commission to prepare input methodology for capital expenditure proposals
- (1)
- The Commission must determine an input methodology for Transpower’s capital expenditure proposals.
- (2)
- The input methodology must include—
- (a)
- requirements that must be met by Transpower, including the scope and specificity of information required, theextentofindependentverificationandaudit,andthe extent of consultation and agreement with consumers; and
- (b)
- the criteria the Commission will use to evaluate capital expenditure proposals; and
- (c)
- time frames and processes for evaluating capital expenditure proposals, including what happens if the Commission does not comply with those time frames.
- (3)
- The input methodology must be determined no later than 1 November 2011; but the Minister may, on the written request of the Commission, extend the deadline once by a periodofupto3months,inwhichcasenoticeoftheextension must be given in the Gazette.
(4) Subpart 3 of Part 4 applies to the input methodology as if it were an input methodology referred to in section 52T, except as provided in subsection (2) or (3) of this section. Compare: 1986 No 5 ss 52T(1)(d), 52U Section54S:substituted,on1November2010,by section155 oftheElectricity Industry Act 2010 (2010 No 116).
54T Procedure before jurisdiction order can be made
[Repealed]
Section 54T: repealed, on 1 November 2010, by section 155 of the Electricity Industry Act 2010 (2010 No 116).
54U Levies during transition in jurisdiction
[Repealed]
Section 54U: repealed, on 1 November 2010, by section 155 of the Electricity Industry Act 2010 (2010 No 116).
Interface with Electricity Industry Act 2010
Heading: inserted, on 1 November 2010, by section 156 of the Electricity In dustry Act 2010 (2010 No 116).
54V Impact of certain decisions made under Electricity Industry Act 2010
- (1)
- The Electricity Authority must consult with the Commission before amending the Electricity Industry Participation Code (the Code) in a manner that will, or is likely to, affect the Commission in the performance of its functions or exercise of its powers under this Part.
- (2)
- TheElectricityAuthoritymustadvisetheCommissionassoon as practicable after doing any of the following things that is likely to be relevant to the powers or functions of the Commission under this Part:
- (a)
- making any provision of the Code:
- (b)
- making any decision under the Code:
- (c)
- issuing any guidelines:
- (d)
- givingadirectiontoTranspowerand1ormoreindustry participants to enter into 1 or more transmission agree ments under section 44 of the Electricity Industry Act 2010.
- (3)
- The Electricity Authority must advise the Commission, as soon as practicable, following any change in the Code that results in increased costs to Transpower or to any distributor or class of distributors.
- (4)
- The Commission must take into account, before exercising anyofitspowersorperforminganyofitsfunctionsunderthis Part,—
- (a)
- any provision of the Code, or decision made under it, that relates to or affects the pricing methodologies or performance requirements applicable to Transpower:
- (b)
- any provision of the Code, or decision made under it, that relates to or affects the pricing methodologies applicable to any other line owner:
- (c)
- anyguidelinesofwhichitreceivesadviceundersubsection (2)(c) that are likely to be relevant to the exercise ofthepowersorperformanceofthedutiesorfunctions of the Commission under this Part:
- (d)
- anydirectionsofwhichitreceivesadviceundersubsection (2)(d):
- (e)
- thelevypayablebyTranspoweroranyotherlineowner under section 128 of the Electricity Industry Act 2010:
- (f)
- the continuance of supply obligations imposed by sec tion 105 of the Electricity Industry Act 2010.
- (5)
- TheCommissionmust,ifaskedbytheElectricityAuthorityto doso,reconsidera section52P determinationand,totheextent that the Commission considers it necessary or desirable to do so, amend the determination, to take account of any matter referred to in subsection (4).
- (6)
- Requirements relating to quality standards for Transpower in a section 52P determination must be based on, and be con sistent with, quality standards for Transpower that are set by the Electricity Authority; but the Commission may prescribe theminanywayitconsidersappropriate,asauthorisedby sec tion 53M(3). Section54V:substituted,on1November2010,by section156 oftheElectricity
Industry Act 2010 (2010 No 116).
Savings provisions
Heading: inserted,on1April2009,bysection4oftheCommerceAmendment Act 2008 (2008 No 70).
54W Savings provision relating to existing information disclosure requirements Any information disclosure requirements published by the Commission under subpart 3 of Part 4A before 1 April 2009 continue to apply to each supplier of electricity lines services in respect of every financial year that precedes the first financial year to which a determination made by the Commission under section 54I(1) applies to that supplier.
Section54W:inserted,on1April2009,by section4 oftheCommerceAmendment Act 2008 (2008 No 70).
54X Savings provision for existing levy regulations for electricity lines businesses
- (1)
- Any regulations made pursuant to section 57ZK before the repeal of Part 4A continue to apply to each person who is a largelineownerinrespectofeveryfinancialyearthatprecedes the first financial year to which levy regulations made under section 53ZE apply to that supplier.
- (2)
- Subsection (1) applies as if—
- (a)
- references in those regulations to the Commission’s costs included references to the costs of exercising and performing the Commission’s powers, duties, and functions under this Part, and enforcingthe obligations underthisPart,inrespectofthosepersons,andwithall other necessary modifications; and
- (b)
- terms used in subsection (1) have the same meaning as they do in those regulations.
Section54X:inserted,on1April2009,by section4 oftheCommerceAmendment Act 2008 (2008 No 70).
Subpart 10—Gas pipeline services
Subpart 10 heading: inserted, on 14 October 2008, by section 4 of the Com merce Amendment Act 2008 (2008 No 70).
Overview and interpretation
Heading: inserted,on14October2008,bysection4oftheCommerceAmend ment Act 2008 (2008 No 70).
55 Overview of subpart
- (1)
- This subpart provides—
- (a)
- thatcertaingaspipelineservicesaresubjecttoinformation disclosure regulation and price-quality regulation; and
- (b)
- forthetransitiontothenewregimeprovidedforinthis Part.
- (2)
- This section is only a guide.
Section 55: substituted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
55A Meaning of gas pipeline services
- (1)
- In this subpart, unless the context otherwise requires, gas pipeline services means the conveyance of natural gas by pipeline, including the assumptionof responsibility for losses of natural gas.
- (2)
- However, none of the following are gas pipeline services:
- (a)
- conveying natural gas to a gas processing facility:
- (b)
- conveying natural gas if the total amount of gas conveyed to consumers by the supplier is less than 75 000 gigajoules per annum:
- (c)
- conveying natural gas by a pipeline that is listed in the second column of Schedule 6.
- (3)
- Thegasconveyed,whenmeasuredinrelationtoasupplierincludes,forthepurposesofsubsection(2)(b),thegasconveyed by any associate of the supplier.
- (4)
- In this section, unless the context otherwise requires,—
associate has the same meaning as in section 12 of the Elec tricity Industry Reform Act 1998 consumer hasthesamemeaningasin section2(1) oftheGas
Act 1992
container has the same meaning as in section 2(1) of the Gas Act 1992 gas refueller has the same meaning as in section 2(1) of the
Gas Act 1992 pipeline—
- (a)
- meanseverythingused,ordesignedorintendedforuse, (whether above or below ground) in or in connection with the conveyance of natural gas between—
- (i)
- the boundary of the gas field or gas processing facility to the point of supply to a consumer or gas refueller; or
- (ii)
- the outlet of the container in which gas is stored to the point of supply to a consumer or gas refueller; but
- (b)
- excludes meters.
- (5)
- TheGovernor-Generalmay,byOrderinCouncilmadeonthe recommendation of the Minister, amend Schedule 6 by—
- (a)
- adding any pipeline:
- (b)
- deleting any pipeline:
- (c)
- changing the description of any pipeline or its owner.
- (6)
- TheMinistermaymakearecommendationforthepurposeof subsection (5) only if the Minister is satisfied that—
- (a)
- the Commission has made a recommendation to the same effect; and
- (b)
- in the case of a recommendation to add a pipeline, the gaspipelineservicesaresuppliedinamarketwherethe ownerofthepipelinedoesnothaveasubstantialdegree of market power; and
- (c)
- inthecaseofarecommendationtodeleteapipeline,the gaspipelineservicesaresuppliedinamarketwherethe ownerofthepipelinehasasubstantialdegreeofmarket power; and
- (d)
- the Commission has consulted (without necessarily holding an inquiry) with interested parties.
Section 55A: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
Imposition of regulation under this Part
Heading: inserted,on14October2008,bysection4oftheCommerceAmend ment Act 2008 (2008 No 70).
55B Gas pipeline services declared to be regulated
Gas pipeline services are regulated under this Part.
Section 55B: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
55C All gas pipeline services are subject to information disclosure regulation
Gas pipeline services are subject to information disclosure regulation under this Part. Section 55C: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
55D All gas pipeline services are subject to price-quality regulation
Gas pipeline services are subject to default/customised price-quality regulation under this Part on and after 1 July 2010. Section 55D: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
55E Commission must make section 52P determination specifying how subpart applies
- (1)
- The section 52P determinations that specify how information disclosure regulation applies to each supplier of gas pipeline servicesmustbemadeassoonaspracticableafterthissubpart comes into force.
- (2)
- The section 52P determinations that specify how default/cus tomisedprice-qualityregulationappliestoeachsupplierofgas pipeline services must be made as soon as practicable after 1 July 2010, in the manner set out in section 55F.
- (3)
- The section 52P determinations that specify how default/cus tomisedprice-qualityregulationappliestoeachsupplierofgas pipeline services that become subject to that form of regu lation as a result of an Order in Council made under sec tion 55A(5)(a) must be made as soon as practicable after the order comes into force. Section 55E: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
55F Section 52P determinations setting out first default price-quality paths
- (1)
- TheCommissionmustusetheprocessessetoutin section53P in making the first section 52P determinations that set out howdefaultprice-qualityregulationappliestosuppliersofgas pipelineservicesasif30June2010weretheendoftheprevious regulatory period.
- (2)
- However, if a supplier has increased its weighted average prices by more than the movement, or forecast movement, in the all groups index number of the New Zealand Consumer PriceIndexintheperiodbeginning1January2008andending with the date that the determination is made, the Commission mayapplyclaw-backtotheextentofrequiringthesupplierto lower its prices in order to compensate consumers for some or all of any over-recovery of revenues that occurred during that period.
- (3)
- The Commission may set a default price-quality path in respectofsuppliersofgaspipelineservicesevenifalloranyof the relevant input methodologies have not been determined.
- (4)
- Ifaninputmethodologyispublishedaftera section52P determinationreferredtoinsubsection(1)ismade,andif,hadthat methodologyappliedatthetimethedefaultprice-qualitypaths weresetasrequiredbysubsection(1),itwouldhaveresultedin amateriallydifferentpathbeingset,thentheCommissionmay resetthedefaultprice-qualitypathsandmayapplyclaw-back, despite section 53ZB(1).
- (5)
- However,theCommissionmaynotexerciseitspowersinsubsection (4) later than 9 months after the date of publication of the input methodology. Section 55F: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
Services controlled by virtue of Commerce(Control of Natural Gas Services) Order 2005
Heading: inserted,on14October2008,bysection4oftheCommerceAmend ment Act 2008 (2008 No 70).
55G Existingorder,authorisations,andundertakingscontinue to apply until 1 July 2012 (or earlier expiry)
- (1)
- This section provides how price-quality regulation under this Part applies to services that are controlled by virtue of the Commerce(ControlofNaturalGasServices)Order2005 (the order).
- (2)
- Theordercontinuesinforce,despitetherepealofPart4(asit wasbeforeitsrepealbythe CommerceAmendmentAct2008 ), until the date on which the order expires or is revoked (the expiry date).
- (3)
- The enactment of the Commerce Amendment Act 2008 does notlimitoraffect,beforetheexpirydate,anyofthefollowing in respect of the gas pipeline services that are controlled by virtue of the order:
- (a)
- any authorisation made (including the ability to amend orrevokeanauthorisation),oranyundertakingobtained or accepted, under Part 5 before 1 April 2009; or
- (b)
- the power of the Commission to obtain or accept any further undertakings under Part 5; or
- (c)
- any action that may be commenced or continued in respect of a breach of any authorisation or undertaking.
- (4)
- To avoid doubt, subsection (3) applies as if the provisions of Parts 4 to 6 had not been amended or repealed by the Com merce Amendment Act 2008.
- (5)
- However, any breach of the order after 1 April 2009 may be dealt with under Part 6 as if it were a breach of a customised price-quality path. Section 55G: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
55H Howprice-qualityregulationunderthisPartappliesafter 1 July 2012 (or earlier expiry)
- (1)
- This section provides how price-quality regulation under this Part applies to a gas pipeline service after it ceases to be controlledbyvirtueofthe Commerce(ControlofNaturalGasSe r vices) Order 2005 (the order).
- (2)
- Theexpiryoftheordermustbetreatedasifitweretheexpiry of a customised price-quality path, and section 53X applies accordingly.
- (3)
- In this section, the date on which the order expires is—
- (a)
- the expiry date referred to in section 55G; or
- (b)
- ifanundertakingisobtainedoracceptedfromasupplier inrespectofaservicethatexpiresonanearlierdate,that earlier date, provided that the order ceases to apply to that service on or before that date (byrevocation of the order or otherwise).
Section 55H: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
Interface with Gas Act 1992
Heading: inserted,on14October2008,bysection4oftheCommerceAmend ment Act 2008 (2008 No 70).
55I Impact of certain decisions made under Gas Act 1992
- (1)
- TherecommendingbodymustadvisetheCommerceCommissionas soon as practicable after making any recommendation for a gas governance regulation or rule under Part 4A of the GasAct1992,oraftermakinganydecisionundergasgovernance regulations or rules, or after issuing any guidelines, that is or are likely to be relevant to the powers of the Commerce Commission under this Part.
- (2)
- TheCommissionmusttakeintoaccount,beforeexercisingany of its powers under this Part,—
- (a)
- anygasgovernanceregulationorruleunder Part 4Aof the Gas Act 1992, or decision under those gas governance regulations or rules, that relates to or affects the quality standards or pricing methodologies applicable to a pipeline owner:
- (b)
- any guidelines issued by the recommending body of which it is advised under subsection (1) that are likely toberelevanttothepowersoftheCommerceCommission under this Part:
- (c)
- the levy payable by any pipeline owner under the Gas Act 1992.
- (3)
- The Commission must, if asked by the recommending body todo so, reconsider anysection 52Pdeterminationand,to the extentthattheCommissionconsidersitnecessaryordesirable todoso,amendthedetermination,totakeaccountofanymatter referred to in subsection (2).
- (4)
- Inthissection,recommendingbodyhasthesamemeaningas in section 43D of the Gas Act 1992. Section 55I: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
Savings provisions
Heading: inserted,on14October2008,bysection4oftheCommerceAmend ment Act 2008 (2008 No 70).
55J SavingsprovisionuntilCommissionpublishesinformation disclosure requirements
- (1)
- The Gas (Information Disclosure) Regulations 1997 continue to apply to each supplier of gas pipeline services in respect of every financial year that precedes the first financial year to whichadeterminationmadebytheCommissionreferredtoin section 55E(1) applies to that supplier.
- (2)
- After that, no regulations made under section 55 of the Gas Act 1992 apply to the supplier of gas pipeline services. Section 55J: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
55K Savingsprovisionforexistinglevyregulationsforservices controlled under Commerce (Control of Natural Gas Services) Order 2005
- (1)
- Anyregulationsmadepursuantto section74 beforetherepeal of that section continue to apply to each person that is a sup plier of controlled services under the Commerce (Control of NaturalGasServices)Order2005 inrespectofeveryfinancial year that precedes the first financial year to which levy regu lations made under section 53ZE apply to that supplier.
- (2)
- Subsection (1) applies as if—
- (a)
- references in those regulations to the Commission’s costs include references to the costs of exercising the Commission’s powers and performing its duties under this Part, and enforcing the obligations under this Part, inrespectofthosepersons,andwithallothernecessary modifications; and
- (b)
- terms used in subsection (1) have the same meaning as they do in those regulations.
Section 55K: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
Subpart 11—Airport services
Subpart 11 heading: inserted, on 14 October 2008, by section 4 of the Com merce Amendment Act 2008 (2008 No 70).
Overview and interpretation
Heading: substituted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
56 Overview of subpart
- (1)
- This subpart provides—
- (a)
- that specified airport services (at Auckland, Wellington, and Christchurch airports) are subject to information disclosure under this Part; and
- (b)
- forthetransitiontothenewregimeprovidedforinthis Part; and
- (c)
- forareviewofthenewregimeassoonasanynewprice is set in 2012 for specified airport services.
- (2)
- This section is only a guide.
Section 56: substituted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
56A Meaning of specified airport services
- (1)
- In this Part, unless the context otherwise requires, specified airportservicesmeansalloftheservicessuppliedbythecompanies referredtoinsubsection (2) inmarketsdirectly related to the following activities (whether for international and domestic flights):
- (a)
- aircraft and freight activities:
- (b)
- airfield activities:
- (c)
- specified passenger terminal activities:
- (d)
- anyotherservicesthataredeterminedbytheGovernorGeneral,byOrderinCouncilmadeontherecommendationoftheMinisterundersubsection(4),tobespecified airport services for the purposes of this Part.
- (2)
- The companies are—
- (a)
- the company (as defined in section 2 of the Auckland AirportAct1987)thatoperatesAucklandInternational Airport or any subsidiary of, or successor to, that company that operates all or part of the airport:
- (b)
- the company (as defined in section 2 of the Welling ton Airport Act 1990) that operates Wellington International Airport or any subsidiary of, or successor to, that company that operates all or part of the airport:
- (c)
- the airport company (as defined in section 2 of the Air port Authorities Act 1966) that operates Christchurch International Airport or any subsidiary of, or successor to, that company that operates all orpart of the airport.
- (3)
- Termsusedinsubsection(1)(a)to(c)havethesamemeanings as in section 2 of the Airport Authorities Act 1966.
- (4)
- The Minister may recommend that an Order in Council be made under subsection (1)(d) only if the Minister is satisfied that—
- (a)
- the Commission has made a recommendation to the same effect; and
- (b)
- the services are supplied in a market where any or all of the companies referred to in subsection (2) have a substantial degree of market power; and
- (c)
- the Commission has consulted (without necessarily holding an inquiry) with interested parties.
Section 56A: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
Imposition of regulation under this Part
Heading: inserted,on14October2008,bysection4oftheCommerceAmend ment Act 2008 (2008 No 70).
56B Specified airport services declared to be regulated
Specified airport services are regulated under this Part.
Section 56B: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
56C Specified airport services are subject to information disclosure regulation
Specifiedairportservicesaresubjecttoinformationdisclosure regulation under this Part. Section 56C: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
56D Duty to also disclose to Secretary of Transport Each supplier of specified airport services must supply to the Secretary of Transport a copy of any information disclosed under this Part, as soon as practicable after so disclosing it. Section 56D: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
56E Commission must make determination specifying how subpart applies The section 52P determinations that specify how information disclosure regulation applies to each supplier of specified airport services must be made no later than 1 July 2010 (or, if the deadline for determining input methodologies is extended under section 52U(2), no later than the day after the date to which that deadline is extended). Section 56E: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
How information disclosure regulation applies
Heading: inserted,on14October2008,bysection4oftheCommerceAmend ment Act 2008 (2008 No 70).
56F Transitional provision until Commission publishes information disclosure requirements
- (1)
- The AirportAuthorities(AirportCompaniesInformationDis closure) Regulations 1999 continue to apply to each supplier of specified airport services in respect of every financial year that precedes the first financial year to which a determination made by the Commission under section 56E applies to that supplier.
- (2)
- Afterthat,noregulationsmadeunder section9A oftheAirport Authorities Act 1966 apply to that supplier.
- (3)
- Each supplier of specified airport services must supply to the Commission a copy of any information disclosed under those regulations, as soon as practicable after so disclosing.
- (4)
- The Commission may monitor and analyse any information supplied to it under this section. Section 56F: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
56G Transitional provision requiring review after new prices set
- (1)
- As soon as practicable after any new price for a specified airportserviceissetinorafter2012byasupplieroftheservice, the Commission must—
- (a)
- review the information that has been disclosed by sup pliersof specified airport services under subpart 4;and
- (b)
- consult (without necessarily holding an inquiry) with interested parties; and
- (c)
- reporttotheMinistersofCommerceandTransportasto howeffectivelyinformationdisclosureregulationunder this Part is promoting the purpose in section 52A in respect of the specified airport services.
- (2)
- To avoid doubt, subsection (1) applies regardless of whether ornotanynewpriceforaspecifiedairportserviceissetbefore 2012. Section 56G: inserted, on 14 October 2008, by section 4 of the Commerce
Amendment Act 2008 (2008 No 70).
57 Commission process
[Repealed]
Section 57: repealed, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
57A Technical provisions relating to declaration of control
[Repealed]
Section 57A: repealed, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
57B Records to be kept for control purposes
[Repealed]
Section 57B: repealed, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
57C Other Acts relating to price control not affected
[Repealed]
Section 57C: repealed, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
57CA Impact of certain decisions made under Gas Act 1992
[Repealed]
Section 57CA: repealed, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
Part 4A Provisions applicable to electricity industry
[Repealed]
Part 4A: repealed (but may continue to be applied under Part 4 in connection withthebreachofthresholdssetunderPart4Abeforeitsrepeal,includingwhen thosethresholdsapply(asdefaultprice-qualitypaths)afteritsrepeal),on1April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57D Interpretation
[Repealed]
Section57D: repealed (but may continuetobe applied underPart 4 in connectionwiththebreachofthresholdssetunderPart4Abeforeitsrepeal,including when those thresholds apply (as default price-quality paths) after its repean( �/span>, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57DAA Meaning of electricity lines business
[Repealed]
Section57DAA: repealed(butmay continueto beapplied underPart4 in connectionwiththebreachofthresholdssetunderPart4Abeforeitsrepeal,includingwhenthosethresholdsapply(asdefaultprice-qualitypaths)afteritsrepean( �/span>, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57DAAB Meaning of electricity supply business
[Repealed]
Section 57DAAB: repealed (but may continue to be applied under Part 4 in connection with the breach of thresholds set under Part 4A before its repeal, including when those thresholds apply (as default price-quality paths) after its repean( �/span>, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57DA Body that exercises jurisdiction under this Part
[Repealed]
Section57DA:repealed(butmaycontinuetobeappliedunderPart4inconnectionwiththebreachofthresholdssetunderPart4Abeforeitsrepeal,including when those thresholds apply (as default price-quality paths) after its repean( �SPAN style="font-size:8.9pt; font-weight:normal">, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57DB Transfer of jurisdiction in respect of Transpower
[Repealed]
Section57DB:repealed(butmaycontinuetobeappliedunderPart4inconnectionwiththebreachofthresholdssetunderPart4Abeforeitsrepeal,including when those thresholds apply (as default price-quality paths) after its repean( �/span>, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57DC Transfer of jurisdiction relating to other large electricity lines businesses [Repealed] Section57DC:repealed(butmaycontinuetobeappliedunderPart4inconnectionwiththebreachofthresholdssetunderPart4Abeforeitsrepeal,including when those thresholds apply (as default price-quality paths) after its repean( �/span>, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57DD Procedure before jurisdiction order can be made
[Repealed]
Section57DD:repealed(butmaycontinuetobeappliedunderPart4inconnectionwiththebreachofthresholdssetunderPart4Abeforeitsrepeal,including when those thresholds apply (as default price-quality paths) after its repean( �/span>, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57DE Levies during transition in jurisdiction
[Repealed]
Section57DE:repealed(butmaycontinuetobeappliedunderPart4inconnectionwiththebreachofthresholdssetunderPart4Abeforeitsrepeal,including when those thresholds apply (as default price-quality paths) after its repean( �/span>, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57DF Ministerial powers
[Repealed]
Section57DF:repealed(butmaycontinuetobeappliedunderPart4inconnectionwiththebreachofthresholdssetunderPart4Abeforeitsrepeal,including when those thresholds apply (as default price-quality paths) after its repean( �/span>, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
Subpart 1—Controlled goods or services
[Repealed]
Subpart1: repealed(butmaycontinuetobeappliedunderPart4inconnection withthebreachofthresholdssetunderPart4Abeforeitsrepeal,includingwhen thosethresholdsapply(asdefaultprice-qualitypaths)afteritsrepeal),on1April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57E Purpose
[Repealed]
Section 57E: repealed (but may continue to be applied under Part 4 in connectionwiththebreachofthresholdssetunderPart4Abeforeitsrepeal,including when those thresholds apply (as default price-quality paths) after its repean( �/span>, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57F Commission, not Minister, may declare that goods or services supplied by large electricity lines businesses are controlled [Repealed] Section57F:repealed(butmaycontinuetobeappliedunderPart4inconnection withthebreachofthresholdssetunderPart4Abeforeitsrepeal,includingwhen thosethresholdsapply(asdefaultprice-qualitypaths)afteritsrepeal),on1April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57G Thresholds for declaration of control
[Repealed]
Section57G: repealed (but may continuetobe applied underPart 4 in connectionwiththebreachofthresholdssetunderPart4Abeforeitsrepeal,including when those thresholds apply (as default price-quality paths) after its repean( �/span>, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57GA Incorporation by reference of material in thresholds
[Repealed]
Section57GA:repealed(butmaycontinuetobeappliedunderPart4inconnectionwiththebreachofthresholdssetunderPart4Abeforeitsrepeal,including when those thresholds apply (as default price-quality paths) after its repean( �/span>, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57GB Effect of amendments to, or replacement of, material incorporated by reference in thresholds [Repealed] Section57GB:repealed(butmaycontinuetobeappliedunderPart4inconnectionwiththebreachofthresholdssetunderPart4Abeforeitsrepeal,including when those thresholds apply (as default price-quality paths) after its repean( �/span>, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57GC Amendments to, or replacement of, material incorporatedbyreferencetobeofsamegeneralcharacter as original material [Repealed] Section57GC:repealed(butmaycontinuetobeappliedunderPart4inconnectionwiththebreachofthresholdssetunderPart4Abeforeitsrepeal,including when those thresholds apply (as default price-quality paths) after its repean( �/span>, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57GD Proof of material incorporated by reference
[Repealed]
Section57GD:repealed(butmaycontinuetobeappliedunderPart4inconnectionwiththebreachofthresholdssetunderPart4Abeforeitsrepeal,including when those thresholds apply (as default price-quality paths) after its repean( �/span>, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57GE Effect of expiry of material incorporated by reference
[Repealed]
Section57GE:repealed(butmaycontinuetobeappliedunderPart4inconnectionwiththebreachofthresholdssetunderPart4Abeforeitsrepeal,including when those thresholds apply (as default price-quality paths) after its repean( �/span>, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57GF Requirement to consult
[Repealed]
Section57GF:repealed(butmaycontinuetobeappliedunderPart4inconnectionwiththebreachofthresholdssetunderPart4Abeforeitsrepeal,including when those thresholds apply (as default price-quality paths) after its repean( �/span>, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57GG Access to material incorporated by reference
[Repealed]
Section57GG:repealed(butmaycontinuetobeappliedunderPart4inconnectionwiththebreachofthresholdssetunderPart4Abeforeitsrepeal,including when those thresholds apply (as default price-quality paths) after its repean( �/span>, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57H Process for making decisions on declaration of control
[Repealed]
Section57H: repealed (but may continuetobe applied underPart 4 in connectionwiththebreachofthresholdssetunderPart4Abeforeitsrepeal,including when those thresholds apply (as default price-quality paths) after its repean( �/span>, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57I Process before declaration made
[Repealed]
Section57I:repealed(butmaycontinuetobeappliedunderPart4inconnection withthebreachofthresholdssetunderPart4Abeforeitsrepeal,includingwhen thosethresholdsapply(asdefaultprice-qualitypaths)afteritsrepeal),on1April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57J Effect of declaration of control
[Repealed]
Section57J:repealed(butmaycontinuetobeappliedunderPart4inconnection withthebreachofthresholdssetunderPart4Abeforeitsrepeal,includingwhen thosethresholdsapply(asdefaultprice-qualitypaths)afteritsrepeal),on1April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57K Priorities
[Repealed]
Section57K: repealed (but may continuetobe applied underPart 4 in connectionwiththebreachofthresholdssetunderPart4Abeforeitsrepeal,including when those thresholds apply (as default price-quality paths) after its repean( �/span>, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57L Maximum of 5 years for duration of declaration
[Repealed]
Section 57L: repealed (but may continue to be applied under Part 4 in connectionwiththebreachofthresholdssetunderPart4Abeforeitsrepeal,including when those thresholds apply (as default price-quality paths) after its repean( �SPAN style="font-size:8.9pt; font-weight:normal">, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57M Authorisations and undertakings
[Repealed]
Section57M:repealed(butmaycontinuetobeappliedunderPart4inconnectionwiththebreachofthresholdssetunderPart4Abeforeitsrepeal,including when those thresholds apply (as default price-quality paths) after its repean( �/span>, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57MA Impact of certain decisions made under Electricity Act 1992 [Repealed] Section57MA:repealed(butmaycontinuetobeappliedunderPart4inconnectionwiththebreachofthresholdssetunderPart4Abeforeitsrepeal,including when those thresholds apply (as default price-quality paths) after its repean( �/span>, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57N Commission may lift control
[Repealed]
Section57N: repealed (but may continuetobe applied underPart 4 in connectionwiththebreachofthresholdssetunderPart4Abeforeitsrepeal,including when those thresholds apply (as default price-quality paths) after its repean( �/span>, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
Subpart 2—Transpower’s pricing methodology
[Repealed]
Subpart 2: repealed, on 18 October 2004, by section 10(1) of the Commerce Amendment Act (No 2) 2004 (2004 No 82).
57O Commission may be required to authorise Transpower’s pricing methodology [Repealed] Section57O:repealed,on18October2004,by section10(1) oftheCommerce Amendment Act (No 2) 2004 (2004 No 82).
57P Authorisations in respect of Transpower’s pricing methodology [Repealed] Section 57P: repealed, on 18 October2004, by section 10(1) of the Commerce Amendment Act (No 2) 2004 (2004 No 82).
57Q Authorisations and undertakings
[Repealed]
Section57Q:repealed,on18October2004,by section10(1) oftheCommerce Amendment Act (No 2) 2004 (2004 No 82).
57R Enforcement of authorisations
[Repealed]
Section57R:repealed, on 18 October 2004,bysection10(1)oftheCommerce Amendment Act (No 2) 2004 (2004 No 82).
57S Revocation of authorisations
[Repealed]
Section 57S: repealed, on 18 October2004, by section 10(1) of the Commerce Amendment Act (No 2) 2004 (2004 No 82).
Subpart 3—Information disclosure
[Repealed]
Subpart3: repealed(butmaycontinuetobeappliedunderPart4inconnection withthebreachofthresholdssetunderPart4Abeforeitsrepeal,includingwhen thosethresholdsapply(asdefaultprice-qualitypaths)afteritsrepeal),on1April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57T Information disclosure
[Repealed]
Section57T:repealed(butmaycontinuetobeappliedunderPart4inconnection withthebreachofthresholdssetunderPart4Abeforeitsrepeal,includingwhen thosethresholdsapply(asdefaultprice-qualitypaths)afteritsrepeal),on1April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57U Information to be supplied to Commerce Commission
[Repealed]
Section57U: repealed (but may continuetobe applied underPart 4 in connectionwiththebreachofthresholdssetunderPart4Abeforeitsrepeal,including when those thresholds apply (as default price-quality paths) after its repean( �SPAN style="font-size:8.9pt; font-weight:normal">, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57V Commerce Commission to publish summaries
[Repealed]
Section 57V: repealed (but may continue to be applied under Part 4 in connectionwiththebreachofthresholdssetunderPart4Abeforeitsrepeal,including when those thresholds apply (as default price-quality paths) after its repean( �/span>, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57W Reasonable charge may be imposed for providing copies of statements [Repealed] Section57W:repealed(butmaycontinuetobeappliedunderPart4inconnectionwiththebreachofthresholdssetunderPart4Abeforeitsrepeal,including when those thresholds apply (as default price-quality paths) after its repean( �/span>, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
Subpart 4—Asset valuations
[Repealed]
Subpart4: repealed(butmaycontinuetobeappliedunderPart4inconnection withthebreachofthresholdssetunderPart4Abeforeitsrepeal,includingwhen thosethresholdsapply(asdefaultprice-qualitypaths)afteritsrepeal),on1April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
Recalibration of asset values of large electricity line owners [Repealed]
Heading: repealed, on 18 October 2004, by section 11(1) of the Commerce Amendment Act (No 2) 2004 (2004 No 82).
57X Purpose of recalibrations
[Repealed]
Section57X:repealed,on18October2004,by section11(1) oftheCommerce Amendment Act (No 2) 2004 (2004 No 82).
57Y Interpretation
[Repealed]
Section57Y: repealed, on 18 October 2004, by section11(1)oftheCommerce Amendment Act (No 2) 2004 (2004 No 82).
57Z Large electricity line owners must supply valuation to Commerce Commission [Repealed] Section57Z:repealed, on 18 October 2004, by section 11(1) of theCommerce Amendment Act (No 2) 2004 (2004 No 82).
57ZA Comprehensive audit of asset values of large electricity line owners [Repealed] Section57ZA:repealed,on18October2004,by section11(1) oftheCommerce Amendment Act (No 2) 2004 (2004 No 82).
57ZB Procedure after audit of asset values carried out
[Repealed]
Section57ZB:repealed,on18October2004,by section11(1) oftheCommerce Amendment Act (No 2) 2004 (2004 No 82).
57ZC Outcome of audit of asset values
[Repealed]
Section57ZC:repealed,on18October2004,by section11(1) oftheCommerce Amendment Act (No 2) 2004 (2004 No 82).
Review of valuation methodologies[Repealed]
Heading: repealed,on1April2009,bysection5oftheCommerceAmendment Act 2008 (2008 No 70).
57ZD Review of valuation methodologies
[Repealed]
Section57ZD:repealed(butmaycontinuetobeappliedunderPart4inconnectionwiththebreachofthresholdssetunderPart4Abeforeitsrepeal,including when those thresholds apply (as default price-quality paths) after its repean( �/span>, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57ZE Process when carrying out review of valuation methodologies [Repealed] Section57ZE:repealed(butmaycontinuetobeappliedunderPart4inconnectionwiththebreachofthresholdssetunderPart4Abeforeitsrepeal,including when those thresholds apply (as default price-quality paths) after its repean( �/span>,
on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
Subpart 5—General provisions
[Repealed]
Subpart5: repealed(butmaycontinuetobeappliedunderPart4inconnection withthebreachofthresholdssetunderPart4Abeforeitsrepeal,includingwhen thosethresholdsapply(asdefaultprice-qualitypaths)afteritsrepeal),on1April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57ZF Powers of Commission
[Repealed]
Section57ZF:repealed(butmaycontinuetobeappliedunderPart4inconnectionwiththebreachofthresholdssetunderPart4Abeforeitsrepeal,including when those thresholds apply (as default price-quality paths) after its repean( �/span>, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57ZG Powers of entry and inspection
[Repealed]
Section57ZG:repealed(butmaycontinuetobeappliedunderPart4inconnectionwiththebreachofthresholdssetunderPart4Abeforeitsrepeal,including when those thresholds apply (as default price-quality paths) after its repean( �/span>, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57ZH Authorised persons to prove identity
[Repealed]
Section57ZH:repealed(butmaycontinuetobeappliedunderPart4inconnectionwiththebreachofthresholdssetunderPart4Abeforeitsrepeal,including when those thresholds apply (as default price-quality paths) after its repean( �/span>, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57ZI Offence to obstruct authorised persons
[Repealed]
Section57ZI:repealed(butmaycontinuetobeappliedunderPart4inconnectionwiththebreachofthresholdssetunderPart4Abeforeitsrepeal,including when those thresholds apply (as default price-quality paths) after its repean( �/span>, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57ZJ Other offences
[Repealed]
Section57ZJ:repealed(butmaycontinuetobeappliedunderPart4inconnectionwiththebreachofthresholdssetunderPart4Abeforeitsrepeal,including when those thresholds apply (as default price-quality paths) after its repean( �/span>, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57ZK Levy of electricity lines businesses
[Repealed]
Section57ZK:repealed(butmaycontinuetobeappliedunderPart4inconnectionwiththebreachofthresholdssetunderPart4Abeforeitsrepeal,including when those thresholds apply (as default price-quality paths) after its repean( �/span>, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
Part 5 Authorisations and clearances
Restrictive trade practices
58 Commission may grant authorisation for restrictive trade practices
- (1)
- A person who wishes to enter into a contract or arrangement, or arrive at an understanding, to which that person considers section27 wouldapply,ormightapply,mayapplytotheCommissionforanauthorisationtodosoandtheCommissionmay grantanauthorisationforthatpersontoenterintothecontract or arrangement, or arrive at the understanding.
- (2)
- Apersonwhowishestogiveeffecttoaprovisionofacontract orarrangementorunderstandingtowhichthat personconsid ers section 27 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 give effect totheprovisionofthecontractorarrangementorunderstanding.
- (3)
- A person who wishes to require the giving of, or to give, a covenant to which that person considers section 28 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 require the giving of, or to give, the covenant.
- (4)
- A person who wishes to carry out or enforce a covenant to which that person considers section 28 would apply, or might apply, may apply to the Commission for an authorisation to doso,andtheCommissionmaygrantanauthorisationforthat person to carry out or enforce the covenant.
- (5)
- A person who wishes to enter into a contract or arrangement, or arrive at an understanding to which that person considers section29 wouldapply,ormightapply,mayapplytotheCommission for an authorisation for that person to enter into the contract or arrangement or arrive at the understanding.
- (6)
- A person who wishes to give effect to an exclusionary provision of a contract or arrangement or understanding to which that person considers section 29 would apply, or might apply, may apply to the Commission to do so, and the Commission may grant an authorisation for that person to give effect to the exclusionary provision of the contract or arrangement or understanding.
- (7)
- A person who wishes to engage in the practice of resale price maintenance to which that person considers section 37 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 the practice.
- (8)
- Apersonwhowishestodoanacttowhichthatpersonconsid ers section 38 would apply, or might apply, may apply to the Commission for an authorisation to do so, and the Commissionmay grant an authorisationfor that person todo that act. Section58: substituted,on1July1990,bysection19oftheCommerceAmend
ment Act 1990 (1990 No 41).
58A Effect of authorisation
- (1)
- While an authorisation under subsection (1) or subsection (5) of section 58 remains in force, as the case may be, nothing in section 27 or section 29, as the case may be, shall prevent the applicant from—
- (a)
- entering into, or in accordance with the authorisation, giving effect to or enforcing any provision of the contract to which the authorisation relates; or
- (b)
- entering into, or in accordance with the authorisation, givingeffecttothearrangementtowhichtheauthorisation relates; or
- (c)
- arrivingat,orinaccordancewiththeauthorisation,giving effect to the understanding to which the authorisation relates.
- (2)
- While an authorisation under subsection (2) or subsection (6) of section 58 remains in force, as the case may be, nothing in section 27 or section 29, as the case may be, shall prevent the applicant from—
- (a)
- in accordance with the authorisation, giving effect to or enforcing the contract to which the authorisation relates; or
- (b)
- inaccordancewiththeauthorisation,givingeffecttothe arrangement or understanding.
- (3)
- While an authorisation under subsection (3) of section 58 re mains in force, nothing in section 28 shall prevent the appli cant from—
- (a)
- requiringthegivingof,orgiving,thecovenanttowhich the authorisation relates; or
- (b)
- carrying out or enforcing the terms of the covenant to which the authorisation relates in accordance with the authorisation.
- (4)
- While an authorisation under subsection (4) of section 58 re mains in force, nothing in section 28 shall prevent the appli cant from carrying out or enforcing the terms of the covenant to which the authorisation relates in accordance with the authorisation.
- (5)
- While an authorisation under subsection (7) of section 58 re mains in force, nothing in section 37 shall prevent the appli cant from engaging in the practice to which the authorisation relates in accordance with the authorisation.
- (6)
- While an authorisation under subsection (8) of section 58 re mains in force, nothing in section 38 shall prevent the appli cant from doing the act to which the authorisation relates in accordance with the authorisation. Section58A:inserted,on1July1990,by section19 oftheCommerceAmend
ment Act 1990 (1990 No 41).
58B Additional provisions relating to authorisations
- (1)
- Every authorisation granted by the Commission to a person under section 58 to—
- (a)
- enter into a contract or arrangement or arrive at an understanding; or
- (b)
- giveeffecttoaprovisionofacontract,arrangement,or understanding; or
- (c)
- require the giving of, or give, a covenant; or
- (d)
- carry out or enforce the terms of a covenant; or
- (e)
- engage in the practice of resale price maintenance; or
- (f)
- do any act referred to in section 38,— shallhaveeffectasifitwerealsoanauthorisationinthesame terms to every other person named or referred to in the applicationfortheauthorisationasapartytothecontract,arrangement, or understanding, or the practice or act, or as a person who is or would be bound by, or entitled to the benefit of, the covenant, as the case may be.
- (2)
- Anauthorisationgrantedtoapersonunder section58 maybe expressed to apply to or in relation to another person who,—
- (a)
- inthecaseofanauthorisationtoenterintoacontractor arrangement or arrive at an understanding, becomes a party to the proposed contract or arrangement at a time afteritisenteredintoorbecomesapartytotheproposed understanding at a time after it is arrived at:
- (b)
- in the case of an authorisation to give effect to a provision of a contract, arrangement, or understanding, becomes a party to the contract, arrangement, or understanding at a time after the authorisation is granted:
- (c)
- in the case of an authorisation to require the giving of, ortogive,acovenant,becomesboundby,orentitledto the benefit of, the covenant at a time after the covenant is given:
- (d)
- in the case of an authorisation to carry out or enforce the terms of a covenant, becomes bound by, or entitled tothebenefitof,thecovenantatatimeaftertheauthorisation is granted.
Section58B:inserted,on1July1990,by section19 oftheCommerceAmendment Act 1990 (1990 No 41).
59 Contracts or covenants subject to authorisation not prohibited under certain conditions
- (2)
- Forthepurposesofsubsection(1),therequirementsthatmust be met are,—
- (a)
- inthecaseofacontracttowhich section27 or section29 applies,thatthecontractissubjecttoaconditionthatthe provision, or exclusionary provision, as the case may be,doesnotcomeintoforceunlessanduntilauthorisation is granted to give effect to the provision, or exclusionaryprovisionandthatapplicationmustbemadefor thatauthorisationwithin15workingdaysafterthecontract is entered into:
- (b)
- in the case of a covenant to which section 28 applies, thatthe covenantis subject tothe conditionthatit does nothaveeffectunlessanduntilauthorisationisgranted to give effect to it and that application must be made for that authorisation within 15 working days after the covenant is made.
Section 59: substituted, on 26 May 2001, by section 13 of the Commerce Amendment Act 2001 (2001 No 32).
59A When Commission may grant authorisation
- (1)
- The Commission may grant an authorisation to a person—
- (a)
- toenterintoacontractorarrangement,ortoarriveatan understanding,eventhoughthecontractorarrangement hasbeenenteredinto,ortheunderstandinghasbeenarrivedat,beforetheCommissionmakesadetermination in respect of the application for that authorisation; or
- (b)
- to give effect to a provision of a contract or arrangement entered into, or an understanding arrived at, even though the applicant has already given, or is already giving, effect to the provision before the Commission makes a determination in respect of the application for that authorisation; or
- (c)
- to require the giving of, or to give, a covenant even thoughthecovenanthasbeengivenbeforetheCommissionmakesadeterminationinrespectoftheapplication for that authorisation; or
- (d)
- to do an act or engage in conduct referred to in sec tion 37 or section 38 even though the applicant has al ready done the act or is already engaging in the conduct before the Commission makes a determination in respect of the application for that authorisation.
- (2)
- Subject to subsection (3), all of the parties to the contract, arrangement,orunderstandingmust,unlessanduntilauthorisation is granted, discontinue—
- (a)
- giving effect to the provision of the contract, arrangement, or understanding:
- (b)
- engaging in conduct referred to in section 37 or sec tion 38.
- (3)
- Thepartiestothecontract,arrangement,orunderstandingmay do any of the things set out in subsection (2) as long as any of the parties establishes to the satisfaction of the Commissionthatdiscontinuinganyofthosethingswould,orwouldbe likely to, result in exceptional hardship to any of the parties. Section59A:inserted,on26May2001,by section13 oftheCommerceAmend
ment Act 2001 (2001 No 32).
59B Contraventions not prevented by granting of authorisation under section 59 or section 59A
Nothing in section 59 or section 59A prevents conduct that occurred before an authorisation was granted in respect of it and that would otherwise have constituted a contravention of this Act from continuing to constitute a contravention. Section59B:inserted,on26May2001,by section13 oftheCommerceAmend
ment Act 2001 (2001 No 32).
60 Procedure for applications for authorisation of restrictive trade practices
(1) Every application for an authorisation under section 58 shall bemade in the prescribed form,shall containsuch particulars
149
as may be specified in the form and shall be accompanied by payment of such fee as may be prescribed.
- (2)
- Onreceiptofanapplicationthatcomplieswithsubsection(1), the Commission shall forthwith—
- (a)
- record the application in the register to be kept by the Commission for the purpose:
- (b)
- givewrittennoticeofthedateofregistrationtotheperson by or on whose behalf the application was made:
- (c)
- give notice of the application to any other person who, in the Commission’s opinion, is likely to have an interest in the application:
- (d)
- give public notice of the application in such manner as the Commission thinks fit.
- (3)
- Any person who has an interest in any application in respect of which a notice is given under subsection (2)(d) may give writtennoticeto theCommissionofthatperson’s interestand the reason therefor.
- (4)
- Onreceiptofanapplicationthatdoesnotcomplywithsubsection (1), the Commission may, at its discretion, either—
- (a)
- accept the application and take the steps referred to in subsection (2) in respect of that application; or
- (b)
- return the application to the person by or on whose behalf it was made; or
- (c)
- declinetoregistertheapplicationuntilitcomplieswith subsection (1).
- (5)
- Where the Commission declines to register an application undersubsection(4)(c),itshallforthwithnotifythepersonby or on whose behalf the application was made.
- (6)
- The person making the application under subsection (1), and any person on whose behalf it was made, and any person to whomtheapplicationrelates,shallfromtimetotimeproduce, or,asthecasemaybe,furnishtotheCommission,withinsuch timeasit mayspecify,such further documents orinformation in relation to the application as may be required by the Commissionforthepurposeofenablingittoexerciseitsfunctions under this Part.
- (7)
- Notwithstanding anything in subsection (2) or subsection (4), where the Commission is of the opinion that the matters to whichanapplicationrelatesare,forreasonsotherthanarising from the application of any provision of this Act, unlikely to be proceeded with, the Commission may, in its discretion, return the application to the person by or on whose behalf the application was made.
- (8)
- Any person who has made an application to the Commission for an authorisation may, at any time, by notice in writing to the Commission, withdraw the application. Compare: 1975 No 113 s 70; 1983 No 144 s 26; Trade Practices Act 1974
s 89(1), (2) (Aust)
61 Determination of applications for authorisation of restrictive trade practices
- (1)
- The Commission shall, in respect of an application for an au thorisation under section 58, make a determination in writ ing—
- (a)
- grantingsuchauthorisationasitconsidersappropriate:
- (b)
- declining the application.
- (2)
- Any authorisation granted pursuant to section 58 may be granted subject to such conditions not inconsistent with this Act and for such period as the Commission thinks fit.
- (3)
- The Commission shall take into account any submissions in relation to the application made to it by the applicant or by any other person.
- (4)
- The Commission shall state in writing its reasons for a determination made by it.
- (5)
- Before making a determination in respect of an application for an authorisation, the Commission shall comply with the requirements of section 62.
- (6)
- The Commission shall not make a determination granting an authorisationpursuanttoanapplicationunder section58(1)to
- (4)
- unless it is satisfied that—
- (a)
- the entering into of the contract or arrangement or the arriving at the understanding; or
- (b)
- the giving effect to the provision of the contract, arrangement or understanding; or
- (c)
- thegivingortherequiringofthegivingofthecovenant; or
- (d)
- the carrying out or enforcing of the terms of the
covenant—
asthecasemaybe,towhichtheapplicationrelates,willinall
the circumstances result, or be likely to result, in a benefit to
thepublicwhichwouldoutweighthelesseningincompetition
that would result, or would be likely to result or is deemed to
result therefrom.
(6A) Forthepurposesofsubsection(6),alesseningincompetition includes a lessening in competition that is not substantial.
- (7)
- The Commission shall not make a determination granting an authorisationpursuanttoanapplicationunder section58(5)or
- (6)
- unless it is satisfied that—
- (a)
- the entering into of the contract or arrangement or the arriving at the understanding; or
- (b)
- the giving effect to the exclusionary provision of the contract, or arrangement or understanding— asthecasemaybe,towhichtheapplicationrelates,willinall thecircumstancesresult,orbelikelytoresult,insuchabenefit to the public that—
- (c)
- thecontractorarrangementorunderstandingshouldbe permitted to be entered into or arrived at; or
- (d)
- the exclusionary provision should be permitted to be given effect to.
- (8)
- The Commission shall not make a determination granting an authorisationpursuanttoanapplicationunder section58(7)or
- (8)
- unless it is satisfied that—
- (a)
- theengaginginthepracticeofresalepricemaintenance to which the application relates; or
- (b)
- the act or conduct to which the application relates— as the case may be, will in all the circumstances result, or be likely to result, in such a benefit to the public that—
- (c)
- the engaging in the practice should be permitted; or
- (d)
- the act or conduct should be permitted. Compare: Trade PracticesAct 1974 s90(1), (2), (4), (5), (6), (7), (8) (Aust)
Section 61(6): amended, on 1 July 1990, by section 21(1) of the Commerce Amendment Act 1990 (1990 No 41).
Section 61(6A): inserted, on 2 September 1996, by section 4 of the Commerce Amendment Act 1996 (1996 No 113).
Section 61(7): amended, on 1 July 1990, by section 21(2) of the Commerce Amendment Act 1990 (1990 No 41).
Section 61(8): added, on 1 July 1990, by section 21(3) of the Commerce Amendment Act 1990 (1990 No 41).
62 Commission to prepare draft determination in relation to restrictive trade practices
- (1)
- Before determining an application for an authorisation under section58 ,theCommissionshallprepareadraftdetermination in relation to the application.
- (2)
- The Commission shall send a copy of the draft determination and a summary of the reasons therefor to—
- (a)
- the applicant:
- (b)
- any person to whom a notice has been given pursuant to section 60(2)(c):
- (c)
- any person who has given a notice pursuant to sec tion 60(3) and who in the opinion of the Commission has such an interest in the application as to justify the Commission sending a copy of the draft determination to that person:
- (d)
- anyotherpersonwhointheopinionoftheCommission may assist the Commission in its determination of the application.
- (3)
- The applicant and each other person to whom a copy of the draftdeterminationissentshallnotifytheCommissionwithin 10 working days after a date fixed by the Commission (not being a date earlier than the day on which the notice is sent) whethertheapplicantorotherpersonwishesthe Commission to hold a conference in relation to the draft determination.
- (4)
- Ifeachofthepersonstowhomadraftdeterminationwassent under subsection (2)—
- (a)
- notifies the Commission within the period of 10 working days prescribed in subsection (3) that the person does not wish the Commission to hold a conference in relation to the draft determination; or
- (b)
- does not notify the Commission within that period that the person wishes the Commission to hold such a conference—
theCommissionmaymakethedeterminationatanytimeafter the expiration of that period.
- (5)
- If any of the persons to whom a draft determination was sent under subsection (2) notifies the Commission, in writing, within the period of 10 working days prescribed in subsection (3) that he or she wishes the Commission to hold a conference in relation to the draft determination, the Commission must appoint a date, time, and place for the holding of the conference and give notice of the date, time, andplacesoappointedtoeachofthepersonstowhomadraft determination was sent under subsection (2).
- (6)
- TheCommissionmay,ofitsownmotion,determinetoholda conference in relation to the draft determination and must appointadate, time, and place for the holdingofthe conference and give notice of the date, time, and place so appointed to each of the persons to whom the draft determination was sent under subsection (2).
(7) WheretheCommissionisoftheopinionthat2ormoreapplications for authorisations that are made by the same person, orbybodiescorporatethatareinterconnectedwitheachother, involve the same or substantially similar issues, the Commission may treat the applications as if they constitute a single application, and may prepare a single draft determination in relationtotheapplicationsandholdasingleconferenceinrelation to that draft determination. Compare: Trade Practices Act 1974 s 90A(1), (2), (5), (6), (13) (Aust) Section 62(5): substituted, on 14 October 2008 (applying in respect of every application for an authorisation under section 58 that is made after that date), by section 6(1) of the Commerce Amendment Act 2008 (2008 No 70). Section 62(6): substituted, on 14 October 2008 (applying in respect of every application for an authorisation under section 58 that is made after that date), by section 6(1) of the Commerce Amendment Act 2008 (2008 No 70).
63 Commission may grant provisional authorisation
[Repealed]
Section 63: repealed, on 1 July 1990, by section 22 of the Commerce Amend ment Act 1990 (1990 No 41).
64 Procedure at conference
- (1)
- At every conference called under section 62,—
- (a)
- the Commission shall be represented by a member or members nominated by the chairperson:
- (b)
- each person to whom a draft determination was sent under section 62(2), and any other person whose pres ence at the conference is considered by the Commissiontobe desirable, is entitledto attendandparticipate personallyor,inthe caseofabodycorporate,berepresentedbyapersonwho,orbypersonseachofwhom,is a director, officer, or employee of the body corporate:
- (c)
- a person participating in the conference in accordance with paragraph (b) isentitledto have another person or other persons present to assist him:
- (d)
- no other person is entitled to be present.
- (2)
- The Commission may require any employee of the Commissiontoattendaconferencecalledunder section62 whereinthe opinion of the Commission that officer may assist the Commission in the determination of the application.
- (3)
- At every conference called under section 62 the Commission shall provide for as little formality and technicality as the requirementsofthisActandaproperconsiderationoftheapplication permits.
- (4)
- The Commission shall cause such record of the conference to be made as is sufficient to set out the matters raised by the persons participating in the conference.
- (5)
- AnymemberoftheCommissionattendingtheconferencemay terminate the conference when that member is of the opinion thatareasonableopportunityhasbeengivenfortheexpression of the views of persons participating in the conference.
(6) The Commission shall have regard to all matters raised at the conference, and may at any time after the termination of the conferencemakeadeterminationinrespectoftheapplication. Compare: Trade Practices Act 1974 s 90A(7), (8), (9), (11) (Aust) Section 64(1)(a): amended, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section 64(2): amended, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
65 Commission may vary or revoke authorisations
(1) Subject to subsection (2), if at any time after the Commission hasgrantedanauthorisationunder section58 theCommission is satisfied that—
- (a)
- the authorisation was granted on information that was false or misleading in a material particular; or
- (b)
- therehasbeenamaterialchangeofcircumstancessince the authorisation was granted; or
- (c)
- a condition upon which the authorisation was granted
has not been complied with— the Commission may revoke or amend the authorisation or revoke the authorisation and grant a further authorisation in substitution for it.
(2) TheCommissionshallnotrevokeoramendanauthorisationor revoke an authorisation and substitute a further authorisation pursuant to subsection (1) unless the person to whom the authorisationwasgrantedandanyotherpersonwhointheopinionoftheCommissionislikelytohaveaninterestinthematter is given a reasonable opportunity to make submissions to the CommissionandtheCommissionhasregardtothosesubmissions. Compare: Trade Practices Act 1974 s 91(4) (Aust)
Business acquisitions
Heading: substituted, on 1 January 1991, by section 23 of the Commerce Amendment Act 1990 (1990 No 41).
66 Commissionmaygiveclearancesforbusinessacquisitions
- (1)
- Apersonwhoproposestoacquireassetsofabusinessorshares may give the Commission a notice seeking clearance for the acquisition.
- (2)
- Subsections(1),(2)(a)and(b),(4),and(5)of section60 shall apply in respect of every notice given under subsection (1) as if the notice was an application under section 58.
- (3)
- Within 10 working days after the date of registration of the notice,orsuchlongerperiodastheCommissionandtheperson who gave the notice agree, the Commission shall either—
- (a)
- if it is satisfied that the acquisition will not have, or would not be likely to have, the effect of substantially lessening competition in a market, by notice in writing to the person by or on whose behalf the notice was given, give a clearance for the acquisition; or
- (b)
- if it is not satisfied that the acquisition will not have, or would not be likely to have, the effect of substantially lessening competition in a market, by notice in writing to the person by or on whose behalf the notice was given, decline to give a clearance for the acquisition.
- (4)
- If the period specified in subsection (3) expires without the Commission having given a clearance for the acquisition and without having given a notice under subsection (3)(b), the Commissionshallbedeemedtohavedeclinedtogiveaclearance for the acquisition.
- (5)
- A clearance given under subsection (3) expires—
- (a)
- 12 months after the date on which it was given; or
- (b)
- in the event of an appeal being made against the determination of the Commission giving the clearance, and the determination being confirmed by the court, 12 months after the date on which the determination is confirmed.
Section 66: substituted, on 1 January 1991, by section 23 of the Commerce Amendment Act 1990 (1990 No 41).
Section66(3)(a): amended,on15December2005,bysection3(1)oftheCom merce Amendment Act (No 2) 2005 (2005 No 95).
Section66(3)(a): amended,on26May2001,bysection11(2)oftheCommerce Amendment Act 2001 (2001 No 32).
Section66(3)(b): amended,on15December2005,bysection3(2)oftheCom merce Amendment Act (No 2) 2005 (2005 No 95).
Section66(3)(b): amended,on26May2001,bysection11(2)oftheCommerce Amendment Act 2001 (2001 No 32).
67 Commission may grant authorisations for business acquisitions
- (1)
- Apersonwhoproposestoacquireassetsofabusinessorshares maygivetheCommissionanoticeseekinganauthorisationfor the acquisition.
- (2)
- Subsections(1),(2)(a)and(b),(4),and(5)of section60 shall apply in respect of every notice given under subsection (1) as if the notice was an application under section 58.
- (3)
- Within 60 working days after the date of registration of the notice,orsuchlongerperiodastheCommissionandtheperson who gave the notice agree, the Commission shall—
- (a)
- if it is satisfied that the acquisition will not have, or would not be likely to have, the effect of substantially lessening competition in a market, by notice in writing to the person by or on whose behalf the notice was given, give a clearance for the acquisition; or
- (b)
- if it is satisfied that the acquisition will result, or will be likely to result, in such a benefit to the public that it should be permitted, by notice in writing to the person by or on whose behalf the notice was given, grant an authorisation for the acquisition; or
- (c)
- if it is not satisfied as to the matters referred to in paragraph (a) or paragraph (b), by notice in writing to the person by or on whosebehalf the notice was given,declinetogiveaclearanceorgrantanauthorisationforthe acquisition.
- (4)
- If the period specified in subsection (3) expires without the Commissionhavinggivenaclearanceorhavinggrantedanauthorisation or having declined to do so, the Commission shall bedeemedtohavedeclinedtogiveaclearanceorgrantanauthorisation.
- (5)
- The Commission shall state in writing its reasons for a determination made by it under subsection (3).
- (6)
- A clearance given or an authorisation granted under subsection (3) expires—
- (a)
- 12 months after the date on which it was given or granted; or
- (b)
- in the event of an appeal being made against the determination of the Commission giving the clearance or grantingtheauthorisation,andthedeterminationofthe Commission being confirmed by the court, 12 months after the date on which the determination is confirmed.
Section 67: substituted, on 1 January 1991, by section 23 of the Commerce Amendment Act 1990 (1990 No 41).
Section 67(3)(a): amended, on 15 December 2005, by section 4 of the Com merce Amendment Act (No 2) 2005 (2005 No 95).
Section67(3)(a): amended,on26May2001,bysection11(2)oftheCommerce Amendment Act 2001 (2001 No 32).
68 Provisions applying to applications for clearances and authorisations for business acquisitions
- (1)
- Everypersonwhogivesanoticeunder section66 or section67 shall from time to time produce or, as the case may be, furnish to the Commission, within such time as it may specify, such documents and information in relation to the acquisition as may be required by the Commission for the purpose of en abling it to exercise its functions under this section or sec tion 66 or section 67.
- (2)
- Notwithstanding section66 or section67 ,wheretheCommissionisoftheopinionthataproposedacquisitionis,forreasons otherthanarisingfromtheapplicationofanyprovisionofthis Act, unlikely to be proceeded with, the Commission may, in its discretion, decline to give a clearance or grant an authorisation for that acquisition under this section.
- (3)
- The Commission shall state in writing its reasons for decliningtogiveaclearanceorgrantanauthorisationundersubsection (2).
- (4)
- A person who has given a notice in respect of an acquisition under section 66 or section 67 may at any time, by notice in writingtotheCommission,advisetheCommissionthatitdoes not wish the Commission to give a clearance or grant an authorisation and the Commission shall accordingly not give a clearance or grant an authorisation in respect of that acquisition.
- (5)
- The Commission may consult with any person who, in the opinion of the Commission, is able to assist it in making a determination under section 66 or section 67, as the case may be. Section 68: substituted, on 1 January 1991, by section 23 of the Commerce
Amendment Act 1990 (1990 No 41).
69 Effect of clearance or authorisation
Nothingin section27 or section47 appliestotheacquisitionof assetsofabusinessorsharesiftheassetsorsharesareacquired in accordance with a clearance or an authorisation and while the clearance or authorisation is in force. Section 69: substituted, on 1 January 1991, by section 23 of the Commerce
Amendment Act 1990 (1990 No 41).
69A Commission may accept undertakings
- (1)
- In giving a clearance or granting an authorisation under sec tion 66 or section 67, the Commission may accept a written undertaking given by or on behalf of the person who gave a notice under section 66(1) or section 67(1), as the case may be, todispose of assets or shares specified in the undertaking.
- (2)
- The Commission shall not accept an undertaking in relation tothegivingofaclearanceorthegrantingofanauthorisation under section66 or section67 ,otherthananundertakinggiven under subsection (1).
- (3)
- AnundertakinggiventotheCommissionundersubsection(1) isdeemedtoformpartoftheclearancegivenortheauthorisation granted in relation to the acquisition to which the undertaking relates. Section 69A: inserted, on 1 January 1991, by section 23 of the Commerce
Amendment Act 1990 (1990 No 41).
69AB Authorisation or clearance void if undertaking contravened
- (1)
- If a person contravenes an undertaking accepted under sec tion 69A, the clearance given or the authorisation granted in relation to the acquisition to which the undertaking relates is void and of no effect from the date it was given or granted.
- (2)
- Subsection (1) does not prevent the court from making an
order under sections 85A to 85C in relation to the undertak
ing.
Section 69AB: inserted, on 14 October 2008 (applying only to undertakings under section 69A that are accepted in relation to clearances given or author isations granted on notices under section 66 or 67 that are registered after that date), by section 7(1)of the Commerce AmendmentAct 2008(2008No 70).
69AC Variation of undertaking
- (1)
- The Commission may, on an application made under subsection(2),acceptavariationofanundertakinggivenunder sec tion 69A if it considers that the variation would not have ma terially affected its decision to give the clearance or grant the authorisationinrelationtotheacquisitiontowhichtheundertakingrelatesifthevariationhadbeenproposedatthetimeof the decision.
- (2)
- An application for a variation under subsection (1)—
- (a)
- may be made only by the person who gave the undertaking or on whose behalf the undertaking was given; and
- (b)
- mustbemadenolaterthan20workingdaysbeforethe date on which the relevant obligation under the undertaking must be met.
- (3)
- The Commission must notify the person who made the applicationofitsdecisionontheapplicationnolaterthan3working daysbeforetherelevantobligationundertheundertakingmust be met.
- (4)
- A variation under subsection (1)—
- (a)
- comes into force on a date specified in the variation (being a date that is on or after the date on which the variation is accepted); and
- (b)
- isdeemedtoformpartoftheundertaking(and,accord
ingly, is deemed under section 69A(3) to form part of
theclearancegivenortheauthorisationgrantedinrela
tiontotheacquisitiontowhichtheundertakingrelates).
Section 69AC: inserted, on 14 October 2008 (applying to every undertaking accepted under section 69A before that date if the period for giving effect to the undertaking has not expired at that time and to every undertaking accepted undersection69Aafterthatdate),by section7(1) oftheCommerceAmendment Act 2008 (2008 No 70).
69B Conferences in relation to business acquisitions
- (1)
- Before making a determination under section 66(3) or sec tion 67(3) in relation to an acquisition, the Commission may determine to hold a conference and shallappoint a date, time, and place for theholding of the conferenceand give notice of thedate,time,andplacesoappointedandofthematterstobe considered at the conference to the persons entitled to be present at the conference.
- (2)
- The provisions of section 64 shall apply to every conference held under this section as if—
- (a)
- every reference in that section to a conference called under section62 , were areference toaconferenceheld under this section; and
- (b)
- the reference in subsection (1)(b) of that section to a person to whom a draft determination was sent under section 62(2), were a reference to the person by or on whosebehalfanoticewasgivenunder section66(1) or section 67(1), as the case may be; and
- (c)
- thereferenceinsubsection(6)ofthatsectiontoadetermination in respect of an application, were a reference toadeterminationunder section66(3) or section67(3) , as the case may be.
Section 69B: inserted, on 1 January 1991, by section 23 of the Commerce Amendment Act 1990 (1990 No 41).
Authorisations in respect of controlled goods or services [Repealed]
Heading: repealed,on14October2008,bysection8oftheCommerceAmend ment Act 2008 (2008 No 70).
70 Authorisations in respect of prices, revenues, and quality standards [Repealed] Section 70: repealed, on 14 October 2008, by section 8 of the Commerce Amendment Act 2008 (2008 No 70).
70A Considerations to be observed by Commission
[Repealed]
Section 70A: repealed, on 14 October 2008, by section 8 of the Commerce Amendment Act 2008 (2008 No 70).
70B Procedure for making authorisations
[Repealed]
Section 70B: repealed, on 14 October 2008, by section 8 of the Commerce Amendment Act 2008 (2008 No 70).
70C Remedies and penalties if overcharging or quality standards breached [Repealed] Section 70C: repealed, on 14 October 2008, by section 8 of the Commerce Amendment Act 2008 (2008 No 70).
70D Terms of authorisations
[Repealed]
Section 70D: repealed, on 14 October 2008, by section 8 of the Commerce Amendment Act 2008 (2008 No 70).
70E Investigations and audits
[Repealed]
Section 70E: repealed, on 14 October 2008, by section 8 of the Commerce Amendment Act 2008 (2008 No 70).
70F Revocation and amendment of authorisations
[Repealed]
Section 70F: repealed, on 14 October 2008, by section 8 of the Commerce Amendment Act 2008 (2008 No 70).
71 Provisional authorisations
[Repealed]
Section 71: repealed, on 14 October 2008, by section 8 of the Commerce Amendment Act 2008 (2008 No 70).
72 Alternative undertakings
[Repealed]
Section 72: repealed, on 14 October 2008, by section 8 of the Commerce Amendment Act 2008 (2008 No 70).
73 Conferencesinrelationtoauthorisationsaboutcontrolled goods or services [Repealed] Section 73: repealed, on 14 October 2008, by section 8 of the Commerce Amendment Act 2008 (2008 No 70).
74 Levies
[Repealed]
Section 74: repealed, on 14 October 2008, by section 8 of the Commerce Amendment Act 2008 (2008 No 70).
Part 6 Enforcement, remedies, and appeals
Cease and desist orders
Heading: inserted,on1April2002,bysection15(1)oftheCommerceAmend ment Act 2001 (2001 No 32).
74AA Cease and desist Commissioners
- (1)
- The Governor-General, on the recommendation of the Minister (which recommendation may be given only after consultationbytheMinisterwiththeAttorney-General),mustappoint 2 persons as Commissioners for the sole purpose of hearing ceaseanddesistapplicationsinaccordancewith sections74A to 74C.
- (2)
- TheMinistermaynotrecommendapersonforappointmentas a Commissioner unless that person—
- (a)
- is a barrister or solicitor; and
- (b)
- would qualify for appointment as a member of the Commission under section 9(4)(a) of this Act and sec tions 29(2) and 30(2) of the Crown Entities Act 2004.
- (3)
- The notice of appointment must—
- (a)
- state—
- (i)
- the date on which the appointment takes effect; and
- (ii)
- the term of appointment, which may be 5 years or any shorter period that is stated in the notice; and
- (b)
- be published by the Minister in the Gazette as soon as practicable after being given.
- (4)
- Section 106 of this Act and sections 31, 32(2) to (4), 34, 35, 39 to 45, 47, 48, 62 to 68, 122 to 126 (as applied by section 106(3B) ofthisAct),and 188to190 oftheCrownEntitiesAct 2004 apply to a Commissioner, with any necessary modification, as if he or she were a member of the Commission.
- (5)
- A Commissioner must act independently of the Commission in carrying out his or her functions under this Act.
- (6)
- The Commission must include in its annual report under sec tion 150 of the Crown Entities Act 2004 the information in
section 152(1)(a) and (d) to (f) of that Act, in respect of each Commissioner. Section 74AA: inserted, on 25 January 2005, by section 200 of the Crown En
tities Act 2004 (2004 No 115).
74A Commissioner may make cease and desist orders
- (1)
- A Commissioner may make a cease and desist order, by consentorfollowingahearingheldunder section74C ,iftheCommissioner is satisfied that—
- (a)
- a prima facie case has been made out that a person has engaged in any conduct referred to in section 80(1) or section 83(1); and
- (b)
- it is necessary to act urgently—
- (i)
- topreventaparticularpersonorconsumersfrom suffering serious loss or damage:
- (ii)
- in the interests of the public.
- (2)
- Subject to subsection (3)(a), the effect of a cease and desist order is to restrain conduct for any period and on any terms that are specified in the order.
- (3)
- A cease and desist order made under subsection (1)—
- (a)
- mayrequireapersontodosomethingonlyiftheCommissioner is satisfied that restraining the person from engagingintheconductwillnotrestorecompetition,or the potential for competition, in a market:
- (b)
- must be in writing with the facts and reasons for it clearly set out:
- (c)
- isdeemedtobeadeterminationoftheCommissionthat is subject to appeal in accordance with sections 91 to
97 .
Section 74A: inserted, on 1 April 2002, by section 15(1) of the Commerce Amendment Act 2001 (2001 No 32).
74B Investigation, notice, and opportunity to be heard
Aceaseanddesistordermaybemadeunder section74A only if—
- (a)
- an investigation has been conducted into the alleged contravention ofthis Act andareport has been submitted to the Commission recommending that a cease and desist order be sought; and
- (b)
- theCommissionagreeswiththerecommendationinthe report and directs an employee of the Commission to make an application for a cease and desist order; and
- (c)
- the person against whom an order is sought is served with notice in writing of the following matters:
- (i)
- the nature of the alleged contravention:
- (ii)
- the terms of the proposed order:
- (d)
- the person against whom an order is sought has an opportunity to—
- (i)
- accesstherelevantinformationheldbytheCommission:
- (ii)
- make a written submission:
(iii) consenttothetermsoftheproposedorderorhave the matter determined by a Commissioner following a hearing.
Section 74B: inserted, on 1 April 2002, by section 15(1) of the Commerce Amendment Act 2001 (2001 No 32).
Section 74B(b): amended, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
74C Procedure at cease and desist hearing
- (1)
- At every hearing for a cease and desist order, the Commissioner presiding over the hearing—
- (a)
- must provide for as little formality and technicality as therequirementsofthisActanda properconsideration of the matter permits:
- (b)
- must permit the Commission and the person against whom an order is sought to appear and give evidence, to be represented by counsel, to call witnesses, and to cross-examine witnesses:
- (c)
- has the necessary incidental powers in relation to the hearing of evidence, including the power to exclude irrelevantorrepetitiveevidenceandthepowerssetoutin sections 99 and 100.
- (2)
- Forthepurposesofconductingahearingforaceaseanddesist order, a Commissioner may exercise the powers in section 98 as if he or she were the Commission. Section 74C: inserted, on 1 April 2002, by section 15(1) of the Commerce
Amendment Act 2001 (2001 No 32).
Section 74C(2): added, on 25 January 2005, by section 200 of the Crown En tities Act 2004 (2004 No 115).
74D Pecuniary penalties for contravention of cease and desist order
- (1)
- If the court is satisfied on the application of the Commission that a person has acted in contravention of an order made under section 74A, the court may order the person to pay to the Crown any pecuniary penalty that the court determines to be appropriate.
- (2)
- The amount of any pecuniary penalty must not exceed $500,000.
- (3)
- [Repealed]
- (4)
- [Repealed]
(5) Proceedings under this section may be commenced within 3 years after the matter giving rise to the contravention was discovered or ought reasonably to have been discovered. However, no proceedings under this section may be commenced 10 years or more after the matter giving rise to the contravention. Section 74D: inserted, on 1 April 2002, by section 15(1) of the Commerce
Amendment Act 2001 (2001 No 32).
Section74D(3): repealed,on14October2008,bysection12(2)(a)oftheCom merce Amendment Act 2008 (2008 No 70).
Section74D(4): repealed,on14October2008,bysection12(2)(a)oftheCom merce Amendment Act 2008 (2008 No 70).
Jurisdiction of courts
75 Jurisdiction of High Court
(1) In accordance with this Part, the High Court shall hear and determine the following matters: (aa) applications for orders under section 74D:
- (a)
- in the case of contraventions of Part 2,—
- (i)
- proceedingsfortherecoveryofpecuniarypenal ties under section 80:
- (ii)
- applications for injunctions under section 81:
- (b)
- in the case of contraventions of Part 3,—
- (i)
- proceedingsfortherecoveryofpecuniarypenal ties under section 83:
- (ii)
- applications for injunctions under section 84: (iia) actions for damages under section 84A:
- (c)
- in the case of contraventions relating to Part 4,—
- (i)
- proceedingsfortherecoveryofpecuniarypenal ties under section 86 or 87:
- (ii)
- applications for orders under section 86A, 86C, or 87A:
- (d)
- applications for orders under section 89:
- (e)
- appeals against determinations of the Commission:
- (f)
- applications for orders under section 80B or sec tion 80C:
- (g)
- proceedings for offences against section 80E:
- (h)
- applications for orders under section 82A:
- (i)
- applications for orders under section 85A or 85B.
(2) [Repealed]
Section75(1)(aa): inserted,on26May2001,bysection16(1)oftheCommerce Amendment Act 2001 (2001 No 32).
Section 75(1)(b)(i): substituted, on 1 January 1991, by section 25 of the Com merce Amendment Act 1990 (1990 No 41).
Section75(1)(b)(iia): inserted, on 2 September 1996,by section 5 oftheCommerce Amendment Act 1996 (1996 No 113).
Section75(1)(c): substituted, on14October2008,bysection9(1)oftheCom merce Amendment Act 2008 (2008 No 70).
Section 75(1)(e): added, on 15 August 1991, by section 3(4) of the Judicature Amendment Act 1991 (1991 No 60).
Section 75(1)(f): added, on 26 May 2001, by section 16(2) of the Commerce Amendment Act 2001 (2001 No 32).
Section 75(1)(g): added, on 26 May 2001, by section 16(2) of the Commerce Amendment Act 2001 (2001 No 32).
Section 75(1)(h): added, on 26 May 2001, by section 16(2) of the Commerce Amendment Act 2001 (2001 No 32).
Section75(1)(i): added,on 14October2008, bysection9(2)oftheCommerce Amendment Act 2008 (2008 No 70).
Section 75(2): repealed, on 15 August 1991, by section 3(4) of the Judicature Amendment Act 1991 (1991 No 60).
76 Jurisdiction of District Courts
In accordance with this Part, the District Court shall hear and determineproceedingsforoffencesagainst sections86B , 87B , 100 , and 103. Section 76: amended, on 14 October 2008, by section 10 of the Commerce
Amendment Act 2008 (2008 No 70).
77 Additional lay members of High Court for purposes of appellate jurisdiction in respect of Commission determinations
- (1)
- Forthepurposesoftheexercisebythecourtofitsjurisdiction and powers under this Part, there shall be lay members of the courtwhoshallbepersonsappointedfromtimetotimebythe Governor-General.
- (2)
- No person shall be appointed as a lay member of the court unless, in the opinion of the Governor-General, that person is qualified for appointment by virtue of that person’s know-ledgeorexperienceinindustry,commerce,economics,law,or accountancy.
- (3)
- Alaymemberofthecourtshallholdofficeforsuchterm,not exceeding 5 years, as the Governor-General shall specify in that member’s instrument of appointment, but may from time to time be reappointed.
- (4)
- There shall be paid to such lay members, out of money appropriated by Parliament for the purpose, remuneration by way of fees, salary, or allowances, and travelling allowances and expenses, in accordance with the Fees and Travelling Allowances Act 1951, and the provisions of that Act shall applyaccordinglyasifthecourtwereastatutoryBoardwithin the meaning of that Act.
- (5)
- TheGovernor-Generalmayterminatetheappointmentofalay member of the court for inability to perform the functions of the office, bankruptcy, neglect of duty, or misconduct, proved to the satisfaction of the Governor-General.
- (6)
- Any lay member of the court may resign his office by notice in writing to the Minister.
- (7)
- Notwithstanding that the term of office of a lay member of the court has expired or that a lay member has resigned that office,thatpersonshallbedeemedtocontinueasalaymember
169
of the court for the purpose of completing the hearing of any matterbeforethatperson,asalaymemberofthecourt,which was commenced before the expiration of the term of office or before the resignation took effect, as the case may be.
- (8)
- Beforeenteringupontheexerciseofthedutiesoftheiroffice, thelaymembersshalltakeanoathbeforeaJudgeofthecourt that they will faithfully and impartially perform the duties of their office.
- (9)
- ThepresenceofaJudgeofthecourtandofatleast1laymember shall be necessary to constitute a sitting of the court.
- (10)
- Thedecisionofamajority(includingtheJudgeor,wheremore than 1 Judge sits, including a majority of the Judges) of the members present at a sitting of the court shall be the decision of the court.
- (11)
- Ifthememberspresentareequallydividedinopinion,thedecisionoftheJudge,orofamajorityoftheJudges,shallbethe decision of the court.
- (12)
- If any question before the court cannot be decided in accordance with subsections (10) and (11), the question shall be referred to the Court of Appeal for decision in accordance with thepracticeandprocedureofthatcourt,whichforthepurpose shall have all the powers of the High Court under this Part.
- (13)
- ThedecisionoftheCourtofAppealinanyproceedingsunder this section takes effect, and must be entered, as if it were a decision of the High Court under this Act.
- (14)
- Notwithstanding anything in the foregoing provisions of this section, a Judge of the court sitting alone shall have jurisdiction to make any of the following orders:
- (a)
- an order on any application made in the course of any proceedings:
- (b)
- an order that is not opposed:
- (c)
- anorderinanyproceedingsthatthepartiesagreeshould be heard and determined by a Judge alone:
- (d)
- anorderinanyproceedingswherethematterinissueis substantially a question of law only:
- (e)
- anordermadeontheapplicationofanypartydirecting that any proceedings should be heard and determined by a Judge alone on the ground that the matter in issue is substantially a question of law only:
- (f)
- an order granting the leave of the court to appeal to the
Court of Appeal. Compare: 1975 No 113 s 122A; 1983 No 144 s 41; 1985 No 7 s 2
Section 77(1): amended, on 15 August 1991, by section 3(4) of the Judicature Amendment Act 1991 (1991 No 60).
Section 77(2): amended, on 15 August 1991, by section 3(4) of the Judicature Amendment Act 1991 (1991 No 60).
Section 77(3): amended, on 15 August 1991, by section 3(4) of the Judicature Amendment Act 1991 (1991 No 60).
Section 77(5): amended, on 1 January 2002, by section 70(1) of the Human Rights Amendment Act 2001 (2001 No 96).
Section 77(5): amended, on 15 August 1991, by section 3(4) of the Judicature Amendment Act 1991 (1991 No 60).
Section 77(6): amended, on 15 August 1991, by section 3(4) of the Judicature Amendment Act 1991 (1991 No 60).
Section 77(7): amended, on 15 August 1991, by section 3(4) of the Judicature Amendment Act 1991 (1991 No 60).
Section 77(9): amended, on 15 August 1991, by section 3(4) of the Judicature Amendment Act 1991 (1991 No 60).
Section 77(13): amended, on 1 January 2004, by section 48(1) of the Supreme Court Act 2003 (2003 No 53).
Section77(14): amended,on15August1991,bysection3(4)oftheJudicature Amendment Act 1991 (1991 No 60).
78 Lay members of High Court in certain cases
- (1)
- ForthepurposesoftheexercisebytheHighCourtofitsjuris diction and powers under sections 80 to 85 in respect of pro ceedings which relate to any of sections 27 to 29, 36, 36A, 37 , 38, or 47, a Judge of the court may, of his own motion or ontheapplicationofanypartytotheproceedings,requireany person or persons appointed as a lay member or lay members oftheHighCourtpursuantto section77 ,tohearanddetermine the proceedingsasanadditional lay memberoradditional lay members of the court.
- (2)
- Where a lay member of the High Court is required pursuant tosubsection(1)to hearanddetermine any proceedingsasan additional lay member of the court, that person shall for the purposes of those proceedings be a lay member of the court.
- (3)
- The provisions of subsections (10) to (13) of section 77 shall apply in respect of any proceedings to which this section appliesasiftheproceedingstowhichthoseprovisionsreferwere proceedings in the High Court under sections 80 to 85.
- (4)
- Notwithstanding anything in the foregoing provisions of this section, a Judge of the court sitting alone shall have jurisdiction—
- (a)
- to make any of the following orders—
- (i)
- anorderonanyapplicationmadeinthecourseof any proceedings:
- (ii)
- an order that is not opposed:
- (iv)
- an order in any proceedings where the matter in issue is substantially a question of law only:
- (v)
- an order made on the application of any party directing that any proceedings should be heard and determined by a Judge alone on the ground thatthematterinissueissubstantiallyaquestion of law only:
- (vi)
- anordergrantingtheleaveofthecourttoappeal to the Court of Appeal:
- (b)
- to determine any question as to the application of sec tion 30 arising in any proceedings:
- (c)
- to exercise the power to make an order directing the payment of a pecuniary penalty pursuant to section 80 or section 83:
- (d)
- toexercisethepowertograntaninjunctionpursuantto section 81 or section 84:
- (e)
- toexercisethepowertomakeanorderforthepayment of damages in proceedings under section 82 or section 84A :
- (f)
- to exercise the power to make an order directing the disposal of shares or assets under section 85.
Section 78(1): amended, on 2 September 1996, by section 6 of the Commerce Amendment Act 1996 (1996 No 113).
Section 78(1): amended, on 15 August 1991, by section 3(4) of the Judicature Amendment Act 1991 (1991 No 60).
Section 78(1): amended, on 1 January 1991, by section 26(1)(a) of the Com merce Amendment Act 1990 (1990 No 41).
Section 78(1): amended, on 1 January 1991, by section 26(1)(b) of the Com merce Amendment Act 1990 (1990 No 41).
Section 78(2): amended, on 15 August 1991, by section 3(4) of the Judicature Amendment Act 1991 (1991 No 60).
Section78(3): amended,on1January1991,bysection26(2)oftheCommerce Amendment Act 1990 (1990 No 41).
Section78(4)(c): amended,on1January1991,bysection26(3)(a)oftheCom merce Amendment Act 1990 (1990 No 41).
Section78(4)(d): amended,on1January1991,bysection26(3)(b)oftheCom merce Amendment Act 1990 (1990 No 41).
Section78(4)(e): amended,on1January1991,bysection26(3)(c)oftheCom merce Amendment Act 1990 (1990 No 41).
Section 78(4)(f): added, on 1 January 1991, by section 26(3)(d) of the Com merce Amendment Act 1990 (1990 No 41).
79 Evidence not otherwise admissible In the exercise of its jurisdiction under this Part, except in respect of criminal proceedings and proceedings for pecuniary penalties, the court may receive in evidence any statement, document, or information that would not be otherwise admissible that may in its opinion assist it to deal effectively with the matter. Section 79: amended, on 14 October 2008, by section 11 of the Commerce
Amendment Act 2008 (2008 No 70).
Proceedings for pecuniary penalties
Heading: inserted, on 14 October 2008, by section 12(1) of the Commerce Amendment Act 2008 (2008 No 70).
79A Proceedings for pecuniary penalties
In any proceedings under this Part for a pecuniary penalty—
- (a)
- the standard of proof is the standard of proof applying in civil proceedings; and
- (b)
- the Commission may, by the order of the court, obtain discovery and administer interrogatories.
Section 79A: inserted, on 14 October 2008, by section 12(1) of the Commerce Amendment Act 2008 (2008 No 70).
79B Relationship between pecuniary penalties and criminal liability
- (1)
- Once criminal proceedings against a person for an offence under section86B or 87B aredetermined,theHighCourtmay not order the person to pay a pecuniary penalty in respect of the conduct, events, transactions, or other matters that were the subject of the criminal proceedings.
- (2)
- Once civil proceedings against a person for a pecuniary penalty under this Part are determined, the person may not be convicted of an offence under section 86B or 87B in respect oftheconduct,events,transactions,orothermattersthatwere the subject of the civil proceedings. Section 79B: inserted, on 14 October 2008, by section 12(1) of the Commerce
Amendment Act 2008 (2008 No 70).
Restrictive trade practices
80 Pecuniary penalties
(1) If the court is satisfied on the application of the Commission that a person—
- (a)
- has contravened any of the provisions of Part 2; or
- (b)
- has attempted to contravene such a provision; or
- (c)
- has aided, abetted, counselled, or procured any other person to contravene such a provision; or
- (d)
- has induced, or attempted to induce, any other person, whether by threats or promises or otherwise, to contravene such a provision; or
- (e)
- has been in any way, directly or indirectly, knowingly concernedin,orpartyto,thecontraventionbyanyother person of such a provision; or
- (f)
- hasconspiredwithanyotherpersontocontravenesuch
a provision,— the court may order the person to pay to the Crown such pecuniary penalty as the court determines to be appropriate.
(2) The court must order an individual who has engaged in any conduct referred to in subsection (1) to pay a pecuniary penalty, unless the court considers that there is good reason for not making that order.
(2A) In determining an appropriate penalty under this section, the courtmusthaveregardtoallrelevantmatters,inparticular,—
- (a)
- any exemplary damages awarded under section 82A; and
- (b)
- inthecaseofabodycorporate,thenatureandextentof any commercial gain.
(2B) 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 the case of a body corporate, the greater of—
- (i)
- $10,000,000; or
- (ii)
- either—
- (A)
- if it can be readily ascertained and if the courtissatisfiedthatthecontraventionoccurred in the course of producing a commercialgain,3timesthevalueofanycommercialgainresultingfromthecontravention; or
- (B)
- if the commercial gain cannot be readily ascertained, 10% of the turnover of the body corporate and all of its interconnected bodies corporate (if any).
- (3)
- [Repealed]
- (4)
- [Repealed]
(5) Proceedings under this section may be commenced within 3 years after the matter giving rise to the contravention was discovered or ought reasonably to have been discovered. However, no proceedings under this section may be commenced 10 years or more after the matter giving rise to the contravention.
(6) Where conduct by any person constitutes a contravention of 2 or more provisions of Part 2, proceedings may be instituted underthisActagainstthatpersoninrelationtothecontraventionofany1ormoreoftheprovisions;butnopersonshallbe liable to more than 1 pecuniary penalty under this section in respect of the same conduct. Compare: Trade Practices Act 1974 ss 76, 77 (Aust) Section 80(1): amended, on 26 May 2001, by section 17(1) of the Commerce Amendment Act 2001 (2001 No 32). Section80(2): substituted,on26May2001,bysection17(2)oftheCommerce Amendment Act 2001 (2001 No 32).
Section 80(2A): inserted, on 26 May 2001, by section 17(2) of the Commerce Amendment Act 2001 (2001 No 32).
Section 80(2B): inserted, on 26 May 2001, by section 17(2) of the Commerce Amendment Act 2001 (2001 No 32).
Section 80(3): repealed, on 14 October 2008, by section 12(2)(b) of the Com merce Amendment Act 2008 (2008 No 70).
Section 80(4): repealed, on 14 October 2008, by section 12(2)(b) of the Com merce Amendment Act 2008 (2008 No 70).
Section80(5): substituted,on26May2001,bysection17(3)oftheCommerce Amendment Act 2001 (2001 No 32).
80A Body corporate not to indemnify certain persons in respect of pecuniary penalties
- (1)
- A body corporate must not indemnify a director, servant, or agent of the body corporate or an interconnected body corporate in respect of—
- (a)
- liability for payment of a pecuniary penalty under sec tion 80 that arises out of a provision of a contract, ar rangement,orunderstandingthatisdeemed,under sec tion30 ,tohavethepurpose,ortohaveortobelikelyto have the effect, of substantially lessening competition in a market; or
- (b)
- costs incurred by that director, servant, or agent in defendingorsettlinganyproceedingrelatingtothatliability.
- (2)
- Anindemnitygivenincontraventionofsubsection(1)isvoid.
- (3)
- In this section,— agent includes a former agent director includes a former director indemnify includes relieve or excuse from liability, whether
beforeoraftertheliabilityarises;andindemnityhasacorres
ponding meaning servant includes a former servant. Section80A:inserted,on26May2001,by section18 oftheCommerceAmend
ment Act 2001 (2001 No 32).
80B Pecuniary penalties for contravention of section 80A
- (1)
- If the court is satisfied on the application of the Commis sion that a body corporate has acted in contravention of sec tion80A ,thecourtmayorderthebodycorporatetopaytothe Crown any pecuniary penalty that the court determines to be appropriate.
- (2)
- The amount of any pecuniary penalty must not, in respect of each act or omission, exceed 2 times the value of any indem nity given in contravention of section 80A.
- (3)
- [Repealed]
- (4)
- [Repealed]
(5) Proceedings under this section may be commenced within 3 years after the matter giving rise to the contravention was discovered or ought reasonably to have been discovered. However, no proceedings under this section may be commenced 10 years or more after the matter giving rise to the contravention. Section80B:inserted,on26May2001,by section18 oftheCommerceAmend
ment Act 2001 (2001 No 32).
Section80B(3): repealed,on14October2008,bysection12(2)(c)oftheCom merce Amendment Act 2008 (2008 No 70).
Section80B(4): repealed,on14October2008,bysection12(2)(c)oftheCom merce Amendment Act 2008 (2008 No 70).
80C Court may order certain persons to be excluded from management of body corporate The court may make an order that a person must not, without the leave of the court, be a director or promoter of, or in any way, either directly or indirectly, be concerned or take part in themanagementof, abodycorporateforaperiodnotexceeding 5 years as may be specified in the order, if the court is satisfied on the application of the Commission that—
- (a)
- the person has entered into a contract or arrangement, or arrived at an understanding, containing a provision that is deemed by section 30(1) to have the purpose, or tohaveortobelikelytohavetheeffect,ofsubstantially lessening competition in a market:
- (b)
- the person has given effect to a provision of a contract, arrangement, or understanding that is deemed by sec tion30(1) tohavethepurpose,ortohaveortobelikely to have the effect, of substantially lessening competition in a market:
- (c)
- the person has entered into a contract or arrangement, or arrived at an understanding, that contains an exclusionary provision:
- (d)
- thepersonhasgiveneffecttoanexclusionaryprovision of a contract, arrangement, or understanding.
Section80C:inserted,on26May2001,by section18 oftheCommerceAmendment Act 2001 (2001 No 32).
80D Application for order under section 80C
- (1)
- TheCommissionmustgivenotlessthan10days’noticeofits intentiontoapplyforanorderunder section80C totheperson against whom the order is sought.
- (2)
- On the hearing of the Commission’s application or an applicationforleavebyapersonagainstwhomanorderunder sec tion 80C has been made,—
- (a)
- the Commission must appear and call the attention of the court to any matter that seems to it to be relevant, and may give evidence or call witnesses; and
- (b)
- thepersonagainstwhomtheorderissoughtorhasbeen made may appear and give evidenceor call witnesses.
- (3)
- The Registrar of the court must, as soon as practicable after the making of an order under section 80C, give notice of the order to—
- (a)
- thepersonagainstwhomtheorderhasbeenmade;and
- (b)
- the Registrar of Companies, and the Registrar of Companies must give notice in the Gazette of the name of the person against whom the order is made.
Section80D:inserted,on26May2001,by section18 oftheCommerceAmendment Act 2001 (2001 No 32).
80E Offence to act in contravention of order made under section 80C
- (1)
- Everypersoncommitsanoffencewhoactsincontraventionof an order made under section 80C.
- (2)
- A person who commits an offence against subsection (1) is liableonconvictiontoimprisonmentforatermnotexceeding 5 years or to a fine not exceeding $200,000.
- (3)
- The offence is triable on indictment.
Section80E:inserted,on26May2001,by section18 oftheCommerceAmendment Act 2001 (2001 No 32).
81 Injunctions may be granted by court for contravention of Part 2 The court may, on the application of the Commission or any otherperson,grantaninjunctionrestrainingapersonfromengaging in conduct that constitutes or would constitute any of the following—
- (a)
- a contravention of any of the provisions of Part 2:
- (b)
- any attempt to contravene such a provision:
- (c)
- aiding, abetting, counselling, or procuring any other person to contravene such a provision:
- (d)
- inducing, or attempting to induce, any other person, whether by threats, promises or otherwise, to contravene such a provision:
- (e)
- beinginanywaydirectlyorindirectly,knowinglyconcerned in, or party to, the contravention by any other person of such a provision:
- (f)
- conspiring with any other person to contravene such a
provision. Compare: Trade Practices Act 1974 s 80(1), (2) (Aust)
82 Actions for damages for contravention of Part 2
- (1)
- Every person is liable in damages for any loss or damage causedbythatpersonengaginginconductthatconstitutesany of the following—
- (a)
- a contravention of any of the provisions of Part 2:
- (b)
- aiding, abetting, counselling, or procuring the contravention of such a provision:
- (c)
- inducing by threats, promises, or otherwise the contravention of such a provision:
- (d)
- beinginanywaydirectlyorindirectly,knowinglyconcerned in, or party to, the contravention of such a provision:
- (e)
- conspiring with any other person in the contravention of such a provision.
- (2)
- An action under subsection (1) may be commenced within 3 years after the matter giving rise to the contravention was
179
discovered or ought reasonably to have been discovered. However, no action under subsection (1) may be commenced 10years or moreafter thematter givingrise to the contravention. Compare: Trade Practices Act 1974 s 82 (Aust)
Section 82(2): substituted, on 26 May 2001, by section 19 of the Commerce Amendment Act 2001 (2001 No 32).
82A Exemplary damages for contravention of Part 2
- (1)
- Thecourtmayorderapersonwhohasengagedinanyconduct referred to in section 82(1) to pay exemplary damages even though the court has made, or may make, an order directing thepersontopayapecuniarypenaltyunder section 80forthe same conduct.
- (2)
- In determining whether to award exemplary damages and, if they are to be awarded, the amount of them, the court must have regard to—
- (a)
- whether a pecuniary penalty has been imposed on the defendant for a contravention involving the conduct concerned in the claim for exemplary damages; and
- (b)
- if so, the amount of the pecuniary penalty.
Section82A:inserted,on26May2001,by section20 oftheCommerceAmendment Act 2001 (2001 No 32).
Business acquisitions
Heading: substituted, on 1 January 1991, by section 29 of the Commerce Amendment Act 1990 (1990 No 41).
83 Pecuniary penalties
(1) If the court is satisfied on the application of the Commission that a person—
- (a)
- has contravened section 47:
- (b)
- has attempted to contravene that section:
- (c)
- has aided, abetted, counselled, or procured any other person to contravene that section:
- (d)
- has induced, or attempted to induce, any other person, whether by threats or promises or otherwise, to contravene that section:
- (e)
- has been in any way, directly or indirectly, knowingly concernedin,orpartyto,thecontraventionbyanyother person of that section:
- (f)
- has conspired with any other person to contravene that
section,— the court may order the person to pay to the Crown such pecuniary penalty as the court determines to be appropriate, not exceeding $500,000 in the case of a person not being a body corporate, or $5,000,000 in the case of a body corporate, in respect of each such act or omission.
(2) In determining an appropriate penalty under this section, the court shall have regard to all relevant matters, including—
- (a)
- the nature and extent of the act or omission:
- (b)
- thenatureandextentofanylossordamagesufferedby any person as a result of the act or omission:
- (c)
- the circumstances in which the act or omission took place:
- (d)
- whetherornotthepersonhaspreviouslybeenfoundby thecourtinproceedingsunderthisParttohaveengaged in any similar conduct.
- (3)
- [Repealed]
- (4)
- [Repealed]
- (5)
- Proceedings under this section may be commenced within 3 years after the mattergiving rise to the contravention arose.
- (6)
- A person is not liable to a pecuniary penalty under both sec tion 80 and this section in respect of the same conduct. Section 83: substituted, on 1 January 1991, by section 29 of the Commerce
Amendment Act 1990 (1990 No 41).
Section 83(3): repealed, on 14 October 2008, by section 12(2)(d) of the Com merce Amendment Act 2008 (2008 No 70).
Section 83(4): repealed, on 14 October 2008, by section 12(2)(d) of the Com merce Amendment Act 2008 (2008 No 70).
84 Injunctions may be granted by court for contravention of Part 3 or undertaking
(1) Where it appears to the court, on the application of the Commission or any other person, that a person intends to engage, or is engaging, or has engaged, in conduct that constitutes or would constitute a contravention of section 47, the court, by order, may do all or any of the following things:
- (a)
- grant an injunction restraining any person from engaging in conduct that constitutes or would constitute—
- (i)
- a contravention of section 47:
- (ii)
- any attempt to contravene that provision:
- (iv)
- inducing or attempting to induce any other person, whether by threats, promises or otherwise, to contravene that provision:
- (v)
- being in any way directly or indirectly, knowinglyconcernedin,orpartyto,thecontravention by any other person of that provision:
- (vi)
- conspiring with any other person to contravene that provision:
- (b)
- imposeonanypersonobligationstobeobservedinthe carrying on of any business or the safeguarding of any business or any assets of any business:
- (c)
- provide for the carrying on of any business or the safeguarding of any business or assets of any business, either by the appointment of a person to conduct or supervise the conduct of any business (on such terms and with such powers as may be specified or described intheorder),orinanyothermanner,asitthinksnecessary in the circumstances of the case.
(2) Ifitappearstothecourt,ontheapplicationoftheCommission, thatapersonintendstoengage,orisengaging,orhasengaged, inconductthatconstitutesorwouldconstituteacontravention of an undertaking accepted under section 69A, the court, by order, may do all or any of the following things:
- (a)
- grant an injunction restraining any person from engaging in conduct that constitutes or would constitute—
- (i)
- a contravention of that undertaking:
- (ii)
- any attempt to contravene that undertaking:
- (iv)
- inducing or attempting to induce any other person, whether by threats, promises, or otherwise, to contravene that undertaking:
- (v)
- being in any way directly or indirectly, knowinglyconcernedin,orpartyto,thecontravention by any other person of that undertaking:
- (vi)
- conspiring with any other person to contravene that undertaking:
- (b)
- imposeonanypersonobligationstobeobservedinthe carrying on of any business or the safeguarding of any business or any assets of any business:
- (c)
- provide for the carrying on of any business or the safeguarding of any business or assets of any business, either by the appointment of a person to conduct or supervisetheconductofanybusiness(onthetermsand withthepowersasmaybespecifiedordescribedinthe order),or inany other manner, asit thinksnecessary in the circumstances of the case.
Compare: 1975 No 113 s 81H; 1976 No 67 s 22; 1983 No 144 s 35
Section 84 heading: amended, on 14 October 2008, by section 13(1) of the Commerce Amendment Act 2008 (2008 No 70).
Section84(1): amended,on1January1991,bysection30(a)oftheCommerce Amendment Act 1990 (1990 No 41).
Section84(1)(a)(i): amended,on1January1991,bysection30(b)oftheCom merce Amendment Act 1990 (1990 No 41).
Section84(2): added,on14October2008(applyingonlytoundertakingsunder section 69A that are accepted in relation to clearances given or authorisations granted on notices undersection66or67that areregisteredafterthatdate), by section 13(2) of the Commerce Amendment Act 2008 (2008 No 70).
84A Actions for damages for contravention of Part 3
- (1)
- Every person is liable in damages for any loss or damage causedbythatpersonengaginginconductthatconstitutesany of the following:
- (a)
- a contravention of section 47:
- (b)
- aiding, abetting, counselling, or procuring the contravention of that section:
- (c)
- inducing by threats, promises, or otherwise the contravention of that section:
- (d)
- beinginanywaydirectlyorindirectly,knowinglyconcernedin,orparty to, the contraventionof thatsection:
- (e)
- conspiring with any other person in the contravention of that section.
- (2)
- Anactionundersubsection(1)maybecommencedatanytime within 3 years from the time when the cause of action arose. Section 84A: inserted, on 1 January 1991, by section 31 of the Commerce
Amendment Act 1990 (1990 No 41).
85 Court may order divestiture of assets or shares in respect of contravention of Part 3
- (1)
- Inanycasewherethecourt,ontheapplicationoftheCommission, is satisfied that any person—
- (a)
- has contravened section 47; or
- (b)
- hasbeenfoundinanyotherproceedingsunderthisPart to have contravened section 47,— it may, by order,—
- (c)
- give directions for the disposal by that person of such assets or shares as shall be specified in the order; or
- (d)
- givedirectionsforthedisposalbythatpersonofanyassets or shares in accordance with an undertaking given by the person under section 69A.
- (2)
- Anapplicationundersubsection(1)maybemadeatanytime within 2 years from the date on which the contravention occurred. Section 85: substituted, on 1 January 1991, by section 32 of the Commerce
Amendment Act 1990 (1990 No 41).
85A Pecuniary penalties for contravention of undertaking
- (1)
- Thecourtmay,ontheapplicationoftheCommission,ordera person to pay a pecuniary penalty to the Crown if the court is satisfied that the person—
- (a)
- has contravened an undertaking accepted under sec tion 69A; or
- (b)
- has attempted to contravene an undertaking accepted under section 69A; or
- (c)
- has aided, abetted, counselled, or procured any other person to contravene an undertaking accepted under section 69A; or
- (d)
- has induced, or attempted to induce, any other person, whether by threats or promises or otherwise, to contra vene an undertaking accepted under section 69A; or
- (e)
- has been in any way, directly or indirectly, knowingly concernedin,orpartyto,thecontraventionbyanyother person of an undertaking accepted under section 69A; or
- (f)
- has conspired with any other person to contravene an undertaking accepted under section 69A.
- (2)
- However, the court may only make an order under subsection (1) if the acquisitiontowhich the undertaking relates has proceeded.
- (3)
- The amount of pecuniary penalty must not, in respect of each act or omission, exceed $500,000.
- (4)
- Insettingtheamountofpecuniarypenalty,thecourtmusttake into account all of the following matters:
- (a)
- the nature and extent of the contravention:
- (b)
- the circumstances in which the contravention took place:
- (c)
- whetherthepersonhasobstructedorhinderedtheCommission in any attempt of the Commission to obtain compliance with the undertaking:
- (d)
- whether the person has taken any steps with the intention of—
- (i)
- impeding the disposal of assets or shares in accordance with the undertaking; or
- (ii)
- limiting the effectiveness of the undertaking in preventingasubstantiallesseningofcompetition in a market:
- (e)
- whetherthepersonoraninterconnectedbodycorporate has previously been found by the court in proceedings under this Part to have engaged in similar conduct.
- (5)
- Subsection (4) is subject to section 85C.
- (6)
- A person may not be liable to more than 1 pecuniary penalty in respect of the same conduct.
- (7)
- An application under this section may be made at any time within 12 months from the date on which the relevant obligation under the undertaking was required to be met.
Section85A:inserted,on14October2008(applyingonlytoundertakingsunder section 69A that are accepted in relation to clearances given or authorisations granted on notices undersection66or67that areregisteredafterthatdate), by section 14(1) of the Commerce Amendment Act 2008 (2008 No 70).
85B Court may order divestiture of assets or shares in respect of contravention of undertaking
- (1)
- If the court, on the application of the Commission, is satisfied that any person has contravened an undertaking accepted under section 69A and the acquisition to which the undertak ing relates hasproceeded,thecourt may, by order, give directions for the disposal by that person of any assets or shares in accordance with the undertaking.
- (2)
- An application under this section may be made at any time
within 12 months from the date on which the relevant obliga
tion under the undertaking was required to be met.
Section85B:inserted,on14October2008(applyingonlytoundertakingsunder section 69A that are accepted in relation to clearances given or authorisations granted on notices undersection66or67that areregisteredafterthatdate), by section 14(1) of the Commerce Amendment Act 2008 (2008 No 70).
85C Matters court must not take into account under sections 85A and 85B
For the purposes of sections 85A and 85B, the court must not take into account any of the following:
- (a)
- whether it was appropriate for the Commission to ac cept the undertaking under section 69A:
- (b)
- whether the undertaking under section 69A is still ne cessary or desirable:
- (c)
- whether any of the terms of the undertaking under sec tion 69A are still necessary or desirable:
- (d)
- theextenttowhichthecontraventionoftheundertaking
under section 69A may have lessened competition in a
market.
Section85C:inserted,on14October2008(applyingonlytoundertakingsunder section 69A that are accepted in relation to clearances given or authorisations granted on notices undersection66or67that areregisteredafterthatdate), by section 14(1) of the Commerce Amendment Act 2008 (2008 No 70).
Regulated goods or services
Heading: substituted, on 14 October 2008, by section 15 of the Commerce Amendment Act 2008 (2008 No 70).
86 Pecuniary penalty for contravening information disclosure requirement
- (1)
- The court may, on application by the Commission, order any person to pay a pecuniary penalty to the Crown if the court is satisfied that the person—
- (a)
- has contravened any information disclosure require ment (as defined in section 52C); or
- (b)
- has attempted to contravene any such requirement; or
- (c)
- has aided, abetted, counselled, or procured any other person to contravene any such requirement; or
- (d)
- has induced, or attempted to induce, any other person, whether by threats or promises or otherwise, to contravene any such requirement; or
- (e)
- has been in any way, directly or indirectly, knowingly concernedin,orpartyto,thecontraventionbyanyother person of any such requirement; or
- (f)
- has conspired with any other person to contravene any such requirement.
- (2)
- Insubsection(1)and section86B ,areferencetocontravening aninformationdisclosurerequirementincludesalloranyof the following:
- (a)
- failingtodiscloseinformationrequiredtobedisclosed:
- (b)
- failingtodiscloseinformationintheformorwithinthe time required:
- (c)
- disclosinginformationunderaninformationdisclosure requirement that is false or misleading.
- (3)
- The amount of pecuniary penalty must not, in respect of each actoromission,exceed$500,000inthecaseofanindividual, or $5,000,000 in the case of a body corporate.
- (4)
- Indeterminingtheamountofpecuniarypenalty,thecourtmust have regard to all relevant matters, including—
- (a)
- the nature and extent of the contravention; and
- (b)
- thecircumstancesinwhichthecontraventiontookplace (including whether the contravention was intentional, inadvertent, or caused by negligence); and
- (c)
- whether the person has previously been found by the courtin proceedings under thisPart to haveengaged in similar conduct.
- (5)
- Asuppliermaynotbeliabletomorethan1pecuniarypenalty in respect of the same conduct.
- (6)
- Proceedingsunderthissectionmaybecommencedatanytime within 3 years after the contravention occurred. Section 86: substituted, on 14 October 2008, by section 15 of the Commerce
Amendment Act 2008 (2008 No 70).
86A Order requiring information disclosure requirement to be complied with
- (1)
- Thecourtmay,onapplicationbytheCommission,orderasupplier of regulated goods or services to comply with an information disclosure requirement that applies to the supplier.
- (2)
- An order under this section must specify the date by which, orperiod withinwhich,the supplier must comply withtherequirement. Section 86A: inserted, on 14 October 2008, by section 15 of the Commerce
Amendment Act 2008 (2008 No 70).
86B Offences relating to information disclosure regulation
- (1)
- A person commits an offence if—
- (a)
- the person, knowing that particular goods or services are subject to information disclosure regulation, intentionally contravenes any information disclosure requirement relating to those goods or services; or
- (b)
- thepersonissubjecttoanorderunder section86A and failstocomplywiththeorderbythedate,orwithinthe period, specified.
- (2)
- A person who commits an offence under subsection (1) is liable onsummaryconvictiontoafinenotexceeding$200,000 inthecaseofanindividual,or$1,000,000inthecaseofabody corporate.
- (3)
- Despite section14 oftheSummaryProceedingsAct1957,proceedings for an offence under subsection (1)(a) may be commenced at any time within 3 years after the contravention occurred.
Section 86B: inserted, on 14 October 2008, by section 15 of the Commerce Amendment Act 2008 (2008 No 70).
86C Orders where negotiate/arbitrate regulation applies
- (1)
- The court may, on the application of a party (party A) to negotiationorarbitrationin respectofgoods orservicesthat are subject to negotiate/arbitrate regulation, make either or both of the following orders:
- (a)
- an order requiring another party to the negotiation or arbitration (party B ) to comply with the relevant sec tion 52P determination in the manner specified by the court:
- (b)
- an order requiring party B to pay party A an amount to compensate party A for loss or damage suffered as a result of party B failing to co-operate, or inadequately co-operating with, the negotiation or arbitration.
- (2)
- Any application for an order under subsection (1)(b) must be madewithin1yearafterthedateonwhichthefailuretoco-operate, or inadequate co-operation, occurred.
- (3)
- In setting an amount under subsection (1)(b), the court must have regard to all relevant factors, including—
- (a)
- the nature and extent of the failure to co-operate; and
- (b)
- the extent to which the failure was the result of factors outside the control of party B; and
- (c)
- whether party B has previously been ordered to pay compensationforasimilarfailureinproceedingsunder this section.
Section 86C: inserted, on 14 October 2008, by section 15 of the Commerce Amendment Act 2008 (2008 No 70).
87 Pecuniary penalty for contravening price-quality requirements
- (1)
- The court may, on application by the Commission, order a person to pay a pecuniary penalty to the Crown if the court is satisfied that the person—
- (a)
- hascontravenedanyprice-qualityrequirementapplying to the regulated goods or services; or
- (b)
- has attempted to contravene any such requirement; or
- (c)
- has aided, abetted, counselled, or procured any other person to contravene any such requirement; or
- (d)
- has induced, or attempted to induce, any other person, whether by threats or promises or otherwise, to contravene any such requirement; or
- (e)
- has been in any way, directly or indirectly, knowingly concernedin,orpartyto,thecontraventionbyanyother person of any such requirement; or
- (f)
- has conspired with any other person to contravene any such requirement.
- (2)
- In subsection (1) and sections 87A to 87C, a reference to contravening a price-quality requirement—
- (a)
- refers to a requirement imposed by a determination madeunder section52P inrelationtogoodsorservices that are subject to default/customised price-quality regulation or to individual price-quality regulation imposed under Part 4; and
- (b)
- means either or both of the following:
- (i)
- failing to comply with the requirements for prices,whetherbychargingapriceforthegoods orservicesthatishigherthanthemaximumprice permitted, or by receiving more revenue than is permitted, or in any other way:
- (ii)
- refusing or failing to comply with any quality standards required under the price-quality regulation.
- (3)
- The amount of pecuniary penalty must not, in respect of each actoromission,exceed$500,000inthecaseofanindividual, or $5,000,000 in the case of a body corporate.
- (4)
- Insettingtheamountofpecuniarypenalty,thecourtmusttake into account all of the following matters:
- (a)
- the nature and extent of the contravention:
- (b)
- thenatureandextentofanylossordamagesufferedby any person as a result of the contravention:
- (c)
- thecircumstancesinwhichthecontraventiontookplace (including whether the contravention was intentional, inadvertent, or caused by negligence):
- (d)
- whetherornotthepersonhaspreviouslybeenfoundby thecourtinproceedingsunderthisParttohaveengaged in similar conduct.
- (5)
- Asuppliermaynotbeliabletomorethan1pecuniarypenalty in respect of the same conduct.
- (6)
- Proceedingsunderthissectionmaybecommencedatanytime within 3 years after the contravention occurred. Section 87: substituted, on 14 October 2008, by section 15 of the Commerce
Amendment Act 2008 (2008 No 70).
87A Compensation for contravention of price-quality requirement
- (1)
- If the court orders a person to pay a pecuniary penalty under section 87 in respect of the contravention of a price-quality requirement, the court may, in addition, order the person to paycompensationtoanypersonwhohassuffered,orislikely to suffer, loss or damage as a result of the contravention (an aggrieved person).
- (2)
- An application for orders under this section may be made by the Commission or any aggrieved person.
- (3)
- Theapplicationmustbemadewithin1yearofthedateofthe pecuniary penalty order.
- (4)
- Thecourtmaymakeanorderunderthissectionwhetherornot any aggrieved person is party to the proceedings.
- (5)
- In proceedings under this section, the court may make such orders as to cost as it thinks fit. Section 87A: inserted, on 14 October 2008, by section 15 of the Commerce
Amendment Act 2008 (2008 No 70).
87B Offence relating to price-quality regulation
- (1)
- A person commits an offence if—
- (a)
- the person, knowing that particular goods or services are subject to price-quality regulation, intentionally contravenes a price-quality requirement in respect of the goods or services; or
- (b)
- thepersonissubjecttoanorderunder section87C(1)(b) and fails to comply with the order.
- (2)
- A person who commits an offence under subsection (1) is liable onsummaryconvictiontoafinenotexceeding$200,000 inthecaseofanindividual,or$1,000,000inthecaseofabody corporate.
- (3)
- Despite section14 oftheSummaryProceedingsAct1957,proceedings for an offence under subsection (1)(a) may be commenced at any time within 3 years after the contravention occurred. Section 87B: inserted, on 14 October 2008, by section 15 of the Commerce
Amendment Act 2008 (2008 No 70).
87C Injunction and other orders relating to price-quality regulation
- (1)
- If the court is satisfied that goods or services that are subject to price-quality regulation are being supplied, or are likely to besupplied,incontraventionofanyprice-qualityrequirement applyingwithrespecttothosegoodsorservices,thecourtmay do either or both of the following:
- (a)
- grant an injunction restraining any supplier of those goodsorservicesfromsupplyingthemincontravention of the price-quality requirement:
- (b)
- requiringthesuppliertosupplythegoodsorservicesin accordancewiththeprice-qualityrequirementapplying to them.
- (2)
- Anapplicationforanorderunderthissectionmaybemadeby any person. Section 87C: inserted, on 14 October 2008, by section 15 of the Commerce
Amendment Act 2008 (2008 No 70).
Injunctions generally
88 General provisions relating to granting of injunctions
- (1)
- The court may at any time rescind or vary an injunction granted under this Part.
- (2)
- Where an application is made to the court under this Part for the grant of an injunction restraining a person from engaging in conduct of a particular kind the court may,—
- (a)
- if it is satisfied that the person has engaged in conduct of that kind, grant an injunction restraining the person from engaging in conduct of that kind; or
- (b)
- if in the opinion of the court it is desirable to do so, grant an interim injunction restraining the person from engaging in conduct of that kind,—
whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind.
(3) Where an application is made to the court under this Part for the grant of an injunction restraining a person from engaging in conduct of a particular kind, the court may,—
- (a)
- ifitappearstothecourtthat,intheeventthataninjunctionisnotgranted,itislikelythatthepersonwillengage in conduct of that kind, grant an injunction restraining the person from engaging in conduct of that kind; or
- (b)
- if in the opinion of the court it is desirable to do so, grant an interim injunction restraining the person from engaging in conduct of that kind,—
whether or not the person has previously engaged in conduct ofthatkindandwhetherornotthereisanimminentdangerof substantialdamagetoanypersonifthefirst-mentionedperson engages in conduct of that kind.
(3A) In determining whether to grant an interim injunction under thissection,thecourtmustgiveanyweightthatthecourtconsiders appropriate totheinterestsofconsumers or, asthecase may be, acquirers.
(4) In any proceeding under this section, the Commission, upon the order of the court, may obtain discovery and administer interrogatories. Compare: Trade Practices Act 1974 s 80(3), (4), (5) (Aust) Section 88(3A): substituted, on 26 May 2001, by section 22 of the Commerce Amendment Act 2001 (2001 No 32).
88A When undertaking as to damages not required by Commission
- (1)
- If the Commission applies to the court for the grant of an interiminjunctionunderthisPart,thecourtmustnot,asaconditionofgrantinganinteriminjunction,requiretheCommission to give an undertaking as to damages.
- (2)
- However,indeterminingtheCommission’sapplicationforthe grantofaninteriminjunction,thecourtmustnottakeintoac
countthattheCommissionisnotrequiredtogiveanundertaking as to damages. Section88A:inserted,on26May2001,by section23 oftheCommerceAmend
ment Act 2001 (2001 No 32).
89 Other orders
- (1)
- Where,inanyproceedingsunderthisPart,thecourtfindsthat a person who is a party to the proceedings has suffered, or is likely to suffer, loss or damage by conduct of another person that was engaged in in contravention of any of the provisions of Part 2, the court may, whether or not it grants an injunc tionormakesanyotherorderunderthisPart,makesuchorder or orders as it thinks appropriate against the person who engaged in the conduct, or any other person who in relation to the contravention did any act referred to in section 81(b) to (f) .
- (2)
- Where a contract is entered into in contravention of this Act, or as the case may be, a contract contains a provision which if giveneffect to would contravene this Act, the court may, in any proceedings under this Part, or on application made for the purpose by a party to the contract or any person claiming through or under any party to the contract, make an order—
- (a)
- varyingthecontract,insuchmannerasitthinksfit,not being a manner inconsistent with the provisions of this Act:
- (b)
- cancelling the contract:
- (c)
- requiring any person who is a party to the contract to make restitution or pay compensation to any other person who is a party to the contract.
- (3)
- Where a covenant is given in contravention of this Act, or as the case may be, the enforcement of the terms of a covenant would contravene this Act, the court may, in any proceedings under this Part, or on application made for the purpose by a person who, but for section 28(4) would be bound by or en titled to the benefit of the covenant or any person claiming through or under any such person, make an order—
- (a)
- varyingthecovenant,insuchmannerasitthinksfit,not being a manner inconsistent with the provisions of this Act:
- (b)
- requiring any person who, but for section 28(4) would be bound by or entitled to the benefit of the covenant to make restitution or pay compensation to any other personwho,butforsection28(4)wouldbeboundbyor entitled to the benefit of the covenant.
- (4)
- Nothing in subsection (2) or subsection (3) shall prevent any proceedings being instituted or commenced under this Part.
- (5)
- Nothing in the Illegal Contracts Act 1970 applies to any con tractenteredintoincontraventionofthisActortoanycontract whichcontainsaprovisionthegivingeffecttoofwhichwould constitute a contravention of this Act.
- (6)
- Notwithstanding any enactment or rule of law, where a contract is entered into in contravention of this Act by reason thatthecontractcontainsaparticularprovision,orthecontract containsaprovisionwhichifgiveneffecttowouldcontravene this Act, the enforceability of any other provision of the contract shall not be affected by the existence of that provision.
(7) In this section, a reference to a contravention of this Act includes a reference to contravening the requirements of any type of regulation under Part 4. Compare: Trade Practices Act 1974 s 87(1)(a) (Aust) Section 89(7): added, on 14 October 2008, by section 16 of the Commerce Amendment Act 2008 (2008 No 70).
90 Conduct by servants or agents
- (1)
- Where, in proceedings under this Part in respect of any conductengagedinbyabodycorporate,beingconductinrelation to which any of the provisions of this Act applies, it is necessary to establish the state of mind of the body corporate, it is sufficient to show that a director, servant or agent of the body corporate,actingwithinthescopeofhisactualorapparentauthority, had that state of mind.
- (2)
- Any conduct engaged in on behalf of a body corporate—
- (a)
- by a director, servant, or agent of the body corporate, actingwithinthescopeofhisactualorapparentauthority; or
- (b)
- byanyotherpersonatthedirectionorwiththeconsent oragreement(whetherexpressorimplied)ofadirector, servant,oragentofthebodycorporate,givenwithinthe
195
scopeoftheactualorapparentauthorityofthedirector,
servant or agent— shall be deemed, for the purposes of this Act, to have been engaged in also by the body corporate.
- (3)
- Where, in a proceeding under this Part in respect of any conductengagedinbyapersonotherthanabodycorporate,being conduct in relation to which a provision of this Act applies, it is necessary to establish the state of mind of the person, it is sufficient to show that a servant or agent of the person, acting within the scope of his actual or apparent authority, had that state of mind.
- (4)
- Any conduct engaged in on behalf of a person other than a body corporate—
- (a)
- by a servant or agent of the person acting within the scope of his actual or apparent authority; or
- (b)
- byanyotherpersonatthedirectionorwiththeconsent or agreement (whether express or implied) of a servant oragentofthefirst-mentionedperson,givenwithinthe scope of the actual or apparent authority of the servant or agent—
shall be deemed, for the purposes of this Act, to have been engaged in also by the first-mentioned person.
(5) A reference in this section to the state of mind of a person in-cludesareferencetotheknowledge,intention,opinion,belief or purpose of the person and the person’s reasons for that intention, opinion, belief or purpose. Compare: Trade Practices Act 1974 s 84 (Aust)
Appeals from determinations of Commission
91 Appeals in relation to determinations by Commission
(1) ThereisarightofappealtotheHighCourtunderthissubsection against any determination of the Commission under this Act, other than the following:
- (a)
- a determination, or any part of a determination, made under section 52P (a section 52P determination) that sets out—
- (i)
- howinformationdisclosureregulationornegotiate/arbitrate regulation applies to regulated suppliers; or
- (ii)
- thedefaultprice-qualitypaththatappliestoregulated suppliers:
- (b)
- aninputmethodologydetermination(asdefinedin sec tion52Z ,andforwhich aseparateappealrightisgiven under that section).
(1A) Anappealagainstasection52Pdeterminationmaynotinclude anappealagainstallorpartofaninputmethodology,whether on a point of law or any other ground.
(1B) There is a right of appeal to the High Court on a question of law against any determination of the Commission under this Act (including a determination referred to in subsection (1)).
(2) Every such appeal shall be made by giving notice of appeal within20workingdaysafterthedateofthedeterminationappealed against or within such further time as the court may allow. Compare: 1975 No 113 s 42 Section91(1): substituted,on14October2008,bysection17oftheCommerce Amendment Act 2008 (2008 No 70).
Section 91(1A): inserted, on 14 October 2008, by section 17 of the Commerce Amendment Act 2008 (2008 No 70).
Section 91(1B): inserted, on 14 October 2008, by section 17 of the Commerce Amendment Act 2008 (2008 No 70).
92 Persons entitled to appeal The following persons may exercise the right of appeal pur suant to section 91—
- (a)
- in the case of an appeal against a determination of the Commission inrelationtoan applicationforanauthor isation under section 58, the applicant and any person who participated in any conference held by the Commissionunder section62 inrelationtotheauthorisation:
- (b)
- in the case of an appeal against a determination of the Commission revoking or amending an authorisation pursuant to section 65(1) or revoking an authorisation and substituting a further authorisation pursuant to that subsection, the person to whom the authorisation was granted:
- (c)
- in the case of an appeal against a determination of the Commission under section 66 or section 67 in relation to a notice seeking a clearance or an authorisation, as the case may be,—
- (i)
- the person who sought the clearance or the authorisation; and
- (ii)
- any person whose assets, or the shares in which, areproposedtobeacquiredpursuanttotheclearance or authorisation; and
- (d)
- in the case of an appeal against a determination made under section52P ,anysupplierorconsumer(asdefined in section52C )ofgoodsorservicestowhichthedetermination relates:
(e) [Repealed]
(f) in the case of an appeal against a determination of a Commissioner under section 74A, any person against whom a cease and desist order was made.
Section 92(c): substituted, on 1 January 1991, by section 33 of the Commerce Amendment Act 1990 (1990 No 41).
Section92(d): substituted,on14October2008,bysection18oftheCommerce Amendment Act 2008 (2008 No 70).
Section 92(e): repealed, on 14 October 2008, by section 18 of the Commerce Amendment Act 2008 (2008 No 70).
Section 92(f): added, on 1 April 2002, by section 15(2) of the Commerce Amendment Act 2001 (2001 No 32).
93 Determination of appeals In determining an appeal under section 91(1), the court may do any of the following:
- (a)
- confirm, modify, or reverse the determination or any part of it:
- (b)
- exercise any of the powers that could have been exercised by the Commission in relation to the matter to which the appeal relates.
Compare: 1975 No 113 s 45(3), (4) Section 93: amended, on 14 October 2008, by section 19 of the Commerce Amendment Act 2008 (2008 No 70).
94 Court may refer appeals back for reconsideration
- (1)
- Notwithstandinganythingin section93 ,thecourtmay,inany case,insteadofdetermininganyappealunderthatsection,direct the Commission to reconsider, either generally or in respectofany specified matters,thewholeorany specified part of the matter to which the appeal relates.
- (2)
- In giving any direction under this section, the court shall—
- (a)
- advise the Commission of its reasons for doing so; and
- (b)
- give to the Commission such directions as it thinks just concerning the reconsideration or otherwise of the wholeor any partofthe matterthat isreferred back for reconsideration.
- (3)
- In reconsidering the matter so referred back, the Commission shall have regard to the court’s reasons for giving a direction under subsection (1), and the court’s directions under subsection (2). Compare: 1975 No 113 s 46
95 Provisions pending determination of appeal
(1) Where an appeal is brought under any provision of this Part against any determination of the Commission, the determination to which the appeal relates shall remain in full force pending the determination of the appeal, unless the court orders to the contrary.
(2) However,thecourtmaynotstaytheapplicationofadeterminationmadeunder section52P in respectofwhichanappealis brought under section 91(1) or (1B) . Compare: 1975 No 113 s 47; 1979 No 140 s 21 Section 95(2): added, on 14 October 2008, by section 20 of the Commerce Amendment Act 2008 (2008 No 70).
96 Court may order proceedings to be heard in private
- (1)
- The court may, in its discretion, order that the hearing or any part of the hearing of any proceedings under this Act shall be held in private.
- (2)
- The court may make an order prohibiting the publication of any report or description of proceedings or any part of proceedingsunderthisAct(whetherheardinpublicorinprivate); but no order under this subsection shall prohibit the publication of any determination of the court. Compare: 1975 No 113 s 45(1), (2)
97 Appeal to Court of Appeal in certain cases
- (1)
- Notwithstanding anything in any enactment, any party to any appealbeforetheHighCourtagainstanydeterminationofthe Commission who is dissatisfied with any decision or order of the court may, with the leave of the court or of the Court of Appeal, appeal to the Court of Appeal; and section 66 of the Judicature Act 1908 shall apply to any such appeal.
- (2)
- Indeterminingwhethertograntleavetoappealunderthissection,thecourttowhichtheapplicationforleaveismadeshall have regard to the following matters:
- (a)
- whether any question of law or general principle is involved:
- (b)
- the importance of the issues to the parties:
- (c)
- the amount of money in issue:
- (d)
- suchothermattersasintheparticularcircumstancesthe court thinks fit.
- (3)
- The court granting leave under this section may in its discretionimposesuchconditionsasitthinksfit,whetherastocosts or otherwise.
(4) [Repealed]
(5) An appeal to the Court of Appeal under this section may be made against either of the following only on a point of law:
- (a)
- adecisionororderoftheHighCourtunder section52Z :
- (b)
- adecisionororderoftheHighCourtonanappealunder section 91(1) or (1B) against a determination of the Commission made under section 52P.
Section 97(1): amended, on 15 August 1991, by section 3(4) of the Judicature Amendment Act 1991 (1991 No 60).
Section 97(4): repealed, on 1 January 2004, by section 48(1) of the Supreme Court Act 2003 (2003 No 53).
Section 97(5): added, on 14 October 2008, by section 21 of the Commerce Amendment Act 2008 (2008 No 70).
Part 7 Miscellaneous provisions 98 Commissionmayrequirepersontosupplyinformationor documents or give evidence
WheretheCommissionconsidersitnecessaryordesirablefor the purposes of carrying out its functions and exercising its powersunderthisAct,theCommissionmay,bynoticeinwriting served on any person, require that person—
- (a)
- tofurnishtotheCommission,bywritingsignedbythat personor, inthe caseofabody corporate, by adirector or competent servant or agent of the body corporate, withinthetimeandinthemannerspecifiedinthenotice, anyinformationorclassof information specifiedin the notice; or
- (b)
- to produce to the Commission, or to a person specified inthenoticeactingonitsbehalfinaccordancewiththe notice,anydocumentorclassofdocumentsspecifiedin the notice; or
- (c)
- to appear before the Commission at a time and place specified in the notice to give evidence, either orally or in writing, and produce any document or class of documents specified in the notice.
Section98: substituted,on1July1990,bysection34oftheCommerceAmend ment Act 1990 (1990 No 41).
98A Power to search
- (1)
- The Commission may, from time to time, authorise an employee of the Commission to search under a warrant issued under subsection (2) any place named in the warrant for the purpose of ascertaining whether a person has engaged in or is engaging in conduct that constitutes or may constitute a contravention of this Act, not being a contravention of sec tion 99A.
- (2)
- A District Court Judge, Justice, or Community Magistrate, or a court Registrar (not being a constable) who is satisfied on applicationmadeonoathbyapersonwhoisauthorisedunder subsection(1)thattherearereasonablegroundstobelievethat it is necessary for the purpose of ascertaining whether or not apersonhasengaged in or isengaging in conduct thatconsti
201
tutes or may constitute a contravention of this Act, not being a contravention of section 99A, for an employee of the Com mission to search any place may, by warrant, authorise that employee to search a place specified in the warrant.
- (3)
- Apersonwhoappliesforawarrantshall,havingmadereasonable inquiries, disclose—
- (a)
- details of every previous application for a warrant to search the place that the person knows has been made within the preceding 28 days; and
- (b)
- the result of the application.
- (4)
- In this section, a reference to a contravention of this Act includes a reference to contravening the requirements of any type of regulation under Part 4. Section98A:inserted,on1July1990,by section34 oftheCommerceAmend
ment Act 1990 (1990 No 41).
Section98A(2): amended,on30June1998, by section 7ofthe DistrictCourts Amendment Act 1998 (1998 No 76).
Section 98A(4): added, on 14 October 2008, by section 22 of the Commerce Amendment Act 2008 (2008 No 70).
98B Powers conferred by warrant
(1) A warrant issued under section 98A authorises the person named in it—
- (a)
- to enter and search the place specified in the warrant on 1occasion within 30days of the date ofissue of the warrantatatimethatisreasonableinthecircumstances:
- (b)
- to use such assistance as is reasonable in the circumstances:
- (c)
- to use such force for gaining entry and for breaking openanyarticleorthingasisreasonableinthecircumstances:
- (d)
- to search for and remove documents or any article or thing that the person executing the warrant believes on reasonable grounds may be relevant:
- (e)
- where necessary, to take copies of documents, or extracts from documents, that the person executing the warrant believes on reasonable grounds may be relevant:
- (f)
- where necessary, to require a person to reproduce, or assistanypersonexecutingthewarranttoreproduce,in
usable form, information recorded or stored in a document.
- (2)
- A person assisting the person executing the warrant also has the powers referred to in paragraphs (c), (d), and (e) of subsection (1).
- (3)
- Thewarrantshallbeexecutedinaccordancewithsuchreasonable conditions as may be specified in the warrant when it is issued. Section98B:inserted,on1July1990,by section34 oftheCommerceAmend
ment Act 1990 (1990 No 41).
98C Warrant to be produced
A person executing a warrant issued under section 98A—
- (a)
- must have the warrant with him or her; and
- (b)
- mustproduceitoninitialentryand,ifrequested,atany subsequent time; and
- (c)
- mustidentifyhimselforherselftotheowneroroccupier orpersoninchargeoftheplaceifthatpersonispresent; and
- (d)
- must produce evidence of his or her identity.
Section98C:inserted,on1July1990,by section34 oftheCommerceAmendment Act 1990 (1990 No 41).
98D Other duties of person who executes a warrant
- (1)
- A person who executes a warrant issued under section 98A must,beforecompletingthesearch,leaveinaprominentplace at the place searched,—
- (a)
- in the case of a search carried out at a time when the owneroroccupierwasnotpresent,awrittennoticestating,—
- (i)
- thedateandtimewhenthewarrantwasexecuted; and
- (ii)
- thenameofthepersonwhoexecutedthewarrant; and
- (b)
- in the case of a search where a document or article or thing was removed from the place being searched, a schedule of documents or articles or things that were removed during the search.
- (2)
- If it is not practicable to prepare a schedule before completing the search, or if the owner or occupier of the place being searched consents, the person executing the warrant—
- (a)
- may,insteadofleavingaschedule,leaveanoticestating thatdocuments,orarticles,orthingshavebeenremoved during the search and that, within 7 days of the search, a schedule will be delivered, left, or sent stating what documents, articles, or things have been removed; and
- (b)
- must, within 7 days of the search,—
- (i)
- deliver a schedule to the owner or occupier; or
- (ii)
- leave a schedule in a prominent position at the place searched; or
- (3)
- Every schedule must state—
- (a)
- the documents, articles, and things that have been removed; and
- (b)
- the location from where they were removed; and
- (c)
- the location where they are being held.
Section98D:inserted,on1July1990,by section34 oftheCommerceAmendment Act 1990 (1990 No 41).
98E Duty to assist Theoccupierorpersoninchargeoftheplacethatapersonauthorisedpursuanttoawarrantissuedunder section98A enters forthepurpose ofsearching mustprovidethatpersonwithall reasonable facilities and assistance in executing the warrant. Section98E:inserted, on1July 1990,bysection34 oftheCommerceAmend
ment Act 1990 (1990 No 41).
98F Power to inspect and take copies of documents, etc TheCommission,oranypersonauthorisedbytheCommission forthepurpose,mayinspectandtakecopiesofanydocuments or extracts from them obtained pursuant to a warrant issued under section 98A. Section98F: inserted,on 1July1990,bysection34 oftheCommerceAmend
ment Act 1990 (1990 No 41).
98G Commission may exercise powers notwithstanding other proceedings
The Commission may exercise any power under sections 98 to 98F notwithstanding that any proceedings, whether under Part 6 or otherwise, have been instituted in any court. Section98G:inserted,on1July1990,by section34 oftheCommerceAmend
ment Act 1990 (1990 No 41).
98H Supply of information and documents in relation to section 36A
- (1)
- WheretheCommissionconsidersitnecessaryordesirablefor the purposes of carrying out its functions and exercising its powersunderthisActinrelationto section36A ,theCommission may by notice in writing served on any person who is ordinarily resident in Australia or who carries on business in Australia, require that person—
- (a)
- tofurnishtotheCommission,bywritingsignedbythat personor, inthe caseofabody corporate, by adirector or competent servant or agent of the body corporate, withinthetimeandinthemannerspecifiedinthenotice, anyinformationorclassof information specifiedin the notice; or
- (b)
- to produce to the Commission, or to a person specified inthenoticeactingonitsbehalfinaccordancewiththe notice,anydocumentorclassofdocumentsspecifiedin the notice.
- (2)
- A person who is required to furnish information or a class of information or produce any document or class of documents totheCommission pursuant to thissection complieswiththis sectionifthatpersonfurnishestheinformationorthatclassof information or produces the document or that class of documents to the Australian Competition and Consumer Commission in accordance with the Trade Practices Act 1974. Section98H:inserted,on1July1990,by section34 oftheCommerceAmend
ment Act 1990 (1990 No 41).
Section98H(2): amended,on2September1996,bysection8oftheCommerce Amendment Act 1996 (1996 No 113).
99 Powers of Commission to take evidence
- (1)
- For the purposes of carrying out its functions and exercising itspowersunderthisAct,theCommissionmayreceiveinevidence any statement, document, information, or matter that may in its opinion assist it to deal effectively with the matter before it, whether or not the same would be otherwise admissible in a court of law.
- (2)
- The Commission may take evidence on oath and for that purpose a member of the Commission or any employee of the Commission duly appointed for the purpose may administer an oath.
- (3)
- The Commission may require the evidence referred to in sec tion 98(c) to be given on oath, and for that purpose a member of the Commission or any employee of the Commission duly appointed for the purpose may administer an oath.
- (4)
- The Commission may permit a person appearing as a witness before the Commission to give evidence by tendering and, if the Commission thinks fit, verifying by oath, a written statement.
(5) Where any person has appeared as a witness before the Commission pursuant to a notice in that behalf, or has given evidencebeforetheCommission,whetherpursuanttoanoticeor not, the Commission may, if it thinks fit, order any sum to be paidtothatwitnessonaccountofhisexpenses,notexceeding theamountthatwouldbepayabletohimifhisattendancehad been as a witness for the Crown in a criminal case in accordance with the regulations for the time being in force for the payment of witnesses for the Crown in criminal cases. Compare: 1975 No 113 s 13; 1976 No 67 s 8(8)(d) Section 99(2): amended, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115). Section 99(3): amended, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section 99(3): amended, on 1 July 1990, by section 35 of the Commerce Amendment Act 1990 (1990 No 41).
99A Commission may receive information and documents on behalf of Australian Competition and Consumer Commission
- (1)
- Where the Australian Competition and Consumer Commission requires any person resident or carrying on business in New Zealand to furnish any information or any class of information or produce any document or class of documents to it pursuant to section 155A of the Trade Practices Act 1974, the information or class of information may be furnished or the document or class of documents may be produced to the Commission for transmission to the Australian Competition and Consumer Commission.
- (2)
- The Commission shall deliver the information or class of information furnished or the document or class of documents produced to it to the Australian Competition and Consumer Commission as soon as practicable.
- (3)
- Every person who—
- (a)
- refuses or fails, without reasonable excuse, to comply with a requirement referred to in subsection (1); or
- (b)
- in purported compliance with such a requirement, furnishes information or produces a document knowing it to be false or misleading—
commits an offence and is liable on summary conviction to a fine not exceeding $10,000 in the case of an individual, or $30,000 in the case of a body corporate. Section99A:inserted,on1July1990,by section36 oftheCommerceAmend
ment Act 1990 (1990 No 41).
Section99Aheading: amended,on2September1996,bysection9oftheCommerce Amendment Act 1996 (1996 No 113).
Section99A(1): amended,on2September1996,bysection9oftheCommerce Amendment Act 1996 (1996 No 113).
Section99A(2): amended,on2September1996,bysection9oftheCommerce Amendment Act 1996 (1996 No 113).
100 Powers of Commission to prohibit disclosure of information, documents, and evidence
(1) Subject to subsection (2), the Commission may, in relation to any application for, or any notice seeking, any clearance or authorisationunder Part5 ,orinthecourseofcarryingoutany other investigation or inquiry under this Act, make an order prohibiting—
- (a)
- the publication or communication of any information ordocumentorevidencewhichisfurnishedorgivenor tenderedto,orobtainedby,theCommissioninconnection with the operations of the Commission:
- (b)
- thegivingofanyevidenceinvolvinganysuchinformation, document, or evidence.
- (2)
- AnyordermadebytheCommissionundersubsection(1)may be expressed to have effect for such period as is specified in the order, but no such order shall have effect,—
- (a)
- where that order was made in connection with any applicationfor,oranynoticeseeking,anyclearanceorau thorisation under Part 5, after the expiry of 20 working days from the date on which the Commission makes a final determination in respect of that application or notice, or, where that application or notice is withdrawn before any such determination is made, after the date on which the application or notice is withdrawn:
- (b)
- wherethatorderwasmadeinconnectionwithanyother investigationorinquiryconductedby the Commission, after the conclusion of that investigation or inquiry.
- (3)
- On the expiry of any order made under subsection (1), the provisions of theOfficialInformation Act 1982 shallapply in respectofanyinformation,document,orevidencethatwasthe subject of that order.
- (4)
- Everypersonwho,contrarytoanyordermadebytheCommission under subsection (1), publishes or communicates any informationordocumentorevidencecommitsanoffenceandis liable,onsummaryconviction,toafinenotexceeding$4,000 inthecaseofapersonnotbeingabodycorporate,and$12,000 in the case of a body corporate. Section 100: substituted, on 1 April 1987, by section 25(1) of the Official In
formation Amendment Act 1987 (1987 No 8).
100A Commission may state case for opinion of High Court
- (1)
- The Commission may at any time state a case for the opinion ofthecourtonanyquestionoflawarisinginanymatterbefore it.
- (2)
- The court may order the removal into the Court of Appeal of any case stated for theopinion ofthe court under this section.
- (3)
- The court or the Court of Appeal, as the case may be, shall hearanddeterminethequestion,andshallremitthecasewith its opinion to the Commission. Section 100A: inserted, on 2 September 1996, by section 10 of the Commerce
Amendment Act 1996 (1996 No 113).
101 Notices
(1) AnynoticegivenbytheCommissionunderorforthepurposes of this Act shall be sufficiently given if it is in writing under thesealoftheCommissionorissignedbythechairperson,or by 1 or more of the members of the Commission, or by any person purporting to act by direction of the Commission, and isservedinaccordancewith section102 onthepersonorpersonsprimarilyconcernedtherewithoronanypersonororganisation deemed by the Commission to represent the person or persons primarily concerned therewith.
(2) All documents purporting to be signed by or on behalf of the Commission or to be sealed with the seal of the Commission shall, in all courts and in all proceedings under this Act, be deemed to have been so signed or sealed with due authority unless the contrary is proved. Compare: 1975 No 113 s 120A; 1976 No 67 s 37(1) Section 101(1): amended, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
102 Service of notices
- (1)
- Any notice or other document required or authorised to be served on or given to any person for the purposes of this Act may be served or given by delivering it to that person, or by leavingitathisusualorlastknownplaceofresidenceorbusiness or at the address specified by him in any notice, application,orotherdocumentmadeorgivenortenderedtotheCommission under this Act, or by posting it by letter addressed to him at that place of residence or business or at that address.
- (2)
- If any such notice or other document is sent to any person by registered letter, then, unless the contrary is shown, it shall be deemed to have been delivered to him when it would have
209
been delivered in the ordinary course of post; and in proving the delivery it shall be sufficient to prove that the letter was properly addressed and posted.
(3) WhereforanypurposeunderthisActanoticeordocumentis requiredtobeservedonanassociationorbodyofpersonsthe notice or document may be served on the secretary,executive officer, manager, or other officer holding a similar position in the association or body; and for the purposes of this Act, serviceontheassociationorbodyshall,unlessotherwisedirected by the Commission, be deemed to be service on all persons whoaremembersoftheassociationorbodyorwhoarerepresented on the association or body by those members. Compare: 1975 No 113 s 121(1)–(3)
103 Offences
- (1)
- No person shall—
- (a)
- withoutreasonableexcuse,refuseorfailtocomplywith a notice under sections 53B(1)(c), 53N, 53ZD, and 98; or
- (b)
- in purported compliance with such a notice, furnish information, or produce a document, or give evidence, knowing it to be false or misleading; or
- (c)
- resist, obstruct, or delay an employee of the Commission acting pursuant to a warrant issued under section 98A.
- (2)
- No person shall attempt to deceive or knowingly mislead the Commission in relation to any matter before it.
- (3)
- No person, having been required to appear before the Com mission pursuant to section 98(c), shall—
- (a)
- without reasonable excuse, refuse or fail to appear before the Commission to give evidence; or
- (b)
- refuse to take an oath or make an affirmation as a witness; or
- (c)
- refuse to answer any question; or
- (d)
- refusetoproducetotheCommissionanybookordocument that that person is required to produce.
- (4)
- Any person who contravenes subsection (1) or subsection (2) orsubsection(3)commitsanoffenceandisliableonsummary conviction to a fine not exceeding $10,000 in the case of an individual, or $30,000 in the case of a body corporate.
- (5)
- Proceedings for an offence against subsection (4) may be commenced within 6 months after the matter giving rise to thecontraventionwasdiscoveredoroughtreasonablytohave been discovered. Section 103: substituted, on 1 July 1990, by section 37 of the Commerce
Amendment Act 1990 (1990 No 41).
Section 103(1)(a): amended, on 14 October 2008, by section 23 of the Com merce Amendment Act 2008 (2008 No 70).
Section 103(5): added, on 26 May 2001, by section 25 of the Commerce Amendment Act 2001 (2001 No 32).
104 Determinations of Commission
- (1)
- Anydetermination,clearance,authorisation,ordecisiongiven bytheCommissionunderorforthepurposesofthisActshall be sufficiently given if it is in writing under the seal of the Commission or is signed by 1 or more members of the Commission or by an employee of the Commission authorised for the purpose.
- (2)
- Acopyofadetermination,clearance,authorisationordecision oftheCommission,certifiedtobeatruecopybyanemployee of the Commission authorised in that behalf to certify copies of determinations, clearances, authorisations or decisions of theCommission,shallbereceivedinallcourtsasevidenceof the determination, clearance, authorisation or decision.
(3) Adocumentpurportingtobeacopyofadetermination,clearance, authorisation or decision of the Commission and to be certified to be a true copy in accordance with subsection (2) shall,unlessthecontraryisestablished, bedeemedtobesuch a copy and to be so certified. Compare: 1975 No 113 s 120A; 1976 No 67 s 37(1) Section 104(1): amended, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section 104(2): amended, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
105 Restriction on delegation
(1) TheCommissionmaynotdelegateitspowerstogrant,revoke, or vary an authorisation under this Act.
- (2)
- [Repealed]
- (3)
- [Repealed]
Section 105: substituted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section 105(1): amended, on 14 October 2008, by section 24(1) of the Com merce Amendment Act 2008 (2008 No 70).
Section 105(2): repealed, on 14 October 2008, by section 24(2) of the Com merce Amendment Act 2008 (2008 No 70).
Section 105(3): repealed, on 14 October 2008, by section 24(2) of the Com merce Amendment Act 2008 (2008 No 70).
106 Proceedings privileged
- (1)
- No proceedings, civil or criminal, shall lie against the Commission for anything it may do or fail to do in the course of the exercise or intended exercise of its functions, unless it is shown that the Commission acted without reasonable care or in bad faith.
- (2)
- No proceedings, civil or criminal, lie against any member of the Commission, or any officer or employee of the Commission, or any member of a committee of the Commission, for anything that person may do or say or fail to do or say in the courseoftheoperationsoftheCommission,unlessitisshown that the person acted in bad faith.
- (3)
- Nothing in subsections (1) and (2) applies in respect of proceedings for—
- (a)
- an offence against section 78 or section 78A or section 105 or section 105A of the Crimes Act 1961; or
- (b)
- the offence of conspiring to commit an offence against section78 or section78A or section105 or section105A of the Crimes Act 1961; or
- (c)
- the offence of attempting to commit an offence against section78 or section78A or section105 or section105A of the Crimes Act 1961.
(3A) Section59(3)oftheCrownEntitiesAct2004(whichprovides that a statutory entity may bring an action against a member for breach of an individual duty) does not apply, unless it is shown by the Commissionthat the person acted inbad faith.
(3B) Sections122to126oftheCrownEntitiesAct2004applyasif theconductforwhichapersonmaybeindemnifiedorinsured
under those sections were conduct that is covered by the protection from liability in this section.
(3C) Thissectioncontainsanexceptiontosection121oftheCrown Entities Act 2004.
- (4)
- A person shall not be excused from complying with any requirementtofurnishinformation,producedocuments,orgive evidenceunderthisAct,or,onappearingbeforetheCommission, from answering any question or producing any document, on the ground that to do so might tend to incriminate that person.
- (5)
- A statement made by a person in answer to a question put by orbeforetheCommissionshallnotincriminalproceedingsor in proceedings for pecuniary penalties, be admissible against that person.
- (6)
- Nothing in subsection (5) applies in respect of—
- (a)
- proceedingsonachargeofperjuryagainstthemakerof the statement; or
- (b)
- proceedings on a charge of an offence against sec tion 103.
- (7)
- Nocourtorotherpersonshallbeentitledtorequireanymember of the Commission, or any employee of the Commission oranyotherpersonpresentatanymeetingoftheCommission, to divulge or communicate any information furnished or obtained,documentsproduced,obtainedortendered,orevidence given, in connection with the operations of the Commission.
- (8)
- Nothing in subsection (7) applies in respect of—
- (a)
- anyproceedingsreferredtoinsubsection(3)orsubsection (6); or
- (b)
- any proceedings to which the Commission is a party.
- (9)
- Anythingsaid,oranyinformationfurnished,oranydocument produced or tendered, or any evidence given by any person to the Commission, shall be privileged in the same manner as if that statement, information, document, or evidence were made,furnished,produced,orgiveninproceedingsinacourt.
- (10)
- For the purposes of clause 3 of Part 2 of Schedule 1 of the Defamation Act 1992, any statement, document, determination, clearance, authorisation, or decision made by the Commissionintheexerciseorintendedexerciseofanyofitsfunc
tions or powers shall be deemed to be an official report made by a person holding an inquiry under the authority of the Parliament of New Zealand. Compare: 1975 No 113 ss 17(1), (3), (4), 130B; 1976 No 67 ss 9, 23(3); 1983
No 144 s 45
Section 106(2): substituted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section 106(3A): inserted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section 106(3B): inserted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section 106(3C): inserted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section 106(4): substituted, on 1 July 1990, by section 39 of the Commerce Amendment Act 1990 (1990 No 41).
Section 106(4): amended, on 14 October 2008, by section 25(1) of the Com merce Amendment Act 2008 (2008 No 70).
Section 106(5): substituted, on 1 July 1990, by section 39 of the Commerce Amendment Act 1990 (1990 No 41).
Section 106(5): amended, on 14 October 2008, by section 25(2) of the Com merce Amendment Act 2008 (2008 No 70).
Section 106(5): amended, on 14 October 2008, by section 25(3) of the Com merce Amendment Act 2008 (2008 No 70).
Section106(6)(b): amended,on14October2008,bysection25(4)oftheCom merce Amendment Act 2008 (2008 No 70).
Section 106(7): amended, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section 106(10): substituted, on 1 February 1993, by section 56(1) of the Defamation Act 1992 (1992 No 105).
106A Judicial notice For the purposes of this Act, judicial notice shall be taken in all courts and for all purposes of—
- (a)
- the common seal of the Commission:
- (b)
- thesignatureofanypersonholding,orwhohasheld,officeasthechairperson,deputychairperson,oramember of the Commission on a document that appears to be a document made on behalf of the Commission:
- (c)
- theofficialsealoftheAustralianCompetitionandConsumer Commission:
- (d)
- theofficialsignatureofanypersonholding,orwhohas held,officeasthechairperson,deputychairperson,ora
member, of the Australian Competition and Consumer Commission on a document that appears to be a document made on behalf of that Commission.
Section106A:inserted,on1July1990,by section40 oftheCommerceAmendment Act 1990 (1990 No 41).
Section 106A(b): amended, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section 106A(c): amended, on 2 September 1996, by section 12 of the Commerce Amendment Act 1996 (1996 No 113).
Section 106A(d): amended, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section 106A(d): amended, on 2 September 1996, by section 12 of the Commerce Amendment Act 1996 (1996 No 113).
107 Annual report
[Repealed]
Section107: repealed,on25January2005,bysection200oftheCrownEntities Act 2004 (2004 No 115).
108 Regulations The Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes:
- (a)
- prescribingtheproceduretobefollowedunderthisAct in respect of applications and notices to, and proceedings of, the Commission:
- (b)
- prescribing forms of applications, notices, and other documents required for the purposes of this Act, and requiring the use of such forms:
- (c)
- prescribingfeestobepaidforthepurposesofthisAct:
(ca) authorisingtheCommissioninitsdiscretion,oronsuch grounds as may be prescribed, to refund a part of the prescribedfeepaidbyapersonwhogivesanoticeunder section 67(1) in any case where the Commission gives a clearance under that section:
(cb) authorising the Commission to refund a part of a prescribedfeepaidbyapersoninanycasewhereawritten undertaking is obtained or accepted from that person:
(d) providingforsuchothermattersasarecontemplatedby or necessary for giving full effect to the provisions of this Act and for its due administration.
Compare: 1975 No 113 s 132
Section 108(ca): inserted, on 1 July 1990, by section 42 of the Commerce Amendment Act 1990 (1990 No 41).
Section 108(cb): substituted, on 14 October 2008, by section 26 of the Com merce Amendment Act 2008 (2008 No 70).
109 Commission may prescribe forms ForthepurposesofthisActtheCommissionmayfromtimeto time prescribe forms of applications, notices, and other documents required for the purposes of this Act.
110 Repeals, revocations, savings, and consequential amendments
- (1)
- The enactments specified in Schedule 2 are hereby amended in the manner indicated in that schedule.
- (2)
- The enactments specified in Schedule 3 are hereby repealed.
- (3)
- Theregulationsandordersspecifiedin Schedule4 arehereby revoked.
- (4)
- Without limiting any provision of this Act, it is hereby expressly declared that every order, approval, authorisation, notice, decision, consent, or any other act of authority that orginated under or was deemed to have originated under any enactment, regulations, or order repealed or revoked by this section (not being a consent granted in respect of a merger or takeover proposal under the Commerce Act 1975) and subsisting or in force at the commencement of this Act, shall cease to have effect on that commencement.
- (5)
- The repeal of the enactments, and the revocation of the regulations and orders, by this section shall not affect the liability of any person for any offence that was committed before the commencementofthisAct,andanyproceedingsforanysuch offence may be taken as if this Act had not been passed.
- (6)
- Unlessthecontextotherwiserequires,inanyotherenactment a reference to the Examiner of Trade Practices and Prices appointedundersection10oftheTradePracticesAct1958shall beread as a reference to the Secretary of Trade andIndustry.
111 Transitional provisions in respect of certain contracts, arrangements, or understandings
- (1)
- Nothingin sections27 and 29 and sections80to82 shallhave any application before 1 March 1987 to the giving effect to a provisionofacontractenteredintoonorbefore11June1985.
- (2)
- Nothingin section28 and sections80to82 shallhaveanyapplicationbefore1March1987tothecarryingoutorenforcing of the terms of a covenant given before 11 June 1985.
- (3)
- [Repealed]
- (4)
- [Repealed]
- (5)
- Nothingin sections27 and 29 and sections80to82 shallhave any application before 1 March 1987 to the giving effect to a provision of a contract, arrangement, or understanding which immediately before the commencement of this Act—
- (a)
- constituted a trade practice in respect of which an approval granted by the Commerce Commission under section29oftheCommerceAct1975wasinforce(being a trade practice to which section 27(1) of that Act applied); or
- (b)
- constituted a trade practice deemed to have been approved, or deemed to have been approved subject to conditions,undersection29oftheCommerceAct1975 pursuanttosubsection(10)ofthatsection(beingatrade practicetowhichsection18AoftheTradePracticesAct 1958 applied); or
- (c)
- constituted a collective pricing practice to which section 30 of the Commerce Act 1975 applied.
- (6)
- Nothing in this section limits or affects the application of the provisions of Part 5 and the provisions of Part 6 (except sec tions 80 to 82). Section111(3): repealed,on1March1987,bysection2(3)oftheCivilAviation
Amendment Act 1987 (1987 No 12).
Section111(4): repealed,on1March1987,bysection2(3)oftheCivilAviation Amendment Act 1987 (1987 No 12).
112 Transitional provisions in respect of goods and services subject to price control under Commerce Act 1975 [Repealed] Section 112: repealed, on 1 July 1990, by section 43(1) of the Commerce Amendment Act 1990 (1990 No 41).
113 Transitional provisions in respect of goods and services subject to price restraint under regulations made under Commerce Act 1975 [Repealed] Section 113: repealed, on 1 July 1990, by section 43(1) of the Commerce Amendment Act 1990 (1990 No 41).
114 Transitional provisions in respect of milk pricing
[Repealed]
Section 114: repealed, on 1 July 1990, by section 43(1) of the Commerce Amendment Act 1990 (1990 No 41).
115 Savings in respect of certain provisions of Commerce Act 1975 [Repealed] Section 115: repealed, on 1 March 1987, by section 49(2) of the Fair Trading Act 1986 (1986 No 121).
116 Winding up of Commerce Commission established under Commerce Act 1975 [Repealed] Section 116: repealed, on 14 October 2008, by section 27 of the Commerce Amendment Act 2008 (2008 No 70).
117 Members of Commerce Commission established under Commerce Act 1975 deemed to be members of Commission [Repealed] Section 117: repealed, on 14 October 2008, by section 27 of the Commerce Amendment Act 2008 (2008 No 70).
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] Section 118: repealed, on 14 October 2008, by section 27 of the Commerce Amendment Act 2008 (2008 No 70).
Schedule 1 s 50
Classes of merger or takeover proposals
requiringpriorclearanceorauthorisation
by the Commission
[Repealed]
Schedule 1: repealed, on 1 January 1991, by section 44 of the Commerce Amendment Act 1990 (1990 No 41).
Schedule 2 s 110(1) Enactments amended Air Services Licensing Act 1983 (1983 No 36)
Amendment(s) incorporated in the Act(s).
Milk Act 1967 (1967 No 53) (RS Vol 18, p 451)
Amendment(s) incorporated in the Act(s).
Ministry of Energy Act 1977 (1977 No 33)
Amendment(s) incorporated in the Act(s).
Official Information Act 1982 (1982 No 156)
Real Estate Agents Act 1976 (1976 No 9)
Sharebrokers Amendment Act 1981 (1981 No 43) (RS Vol 11, p 344)
Amendment(s) incorporated in the Act(s).
Social Security Act 1964 (1964 No 136) (RS Vol 13, p 403)
Amendment(s) incorporated in the Act(s).
Transport Act 1962 (1962 No 135) (RS Vol 16, p 659)
Amendment(s) incorporated in the Act(s).
Trustee Banks Act 1983 (1983 No 116)
Amendment(s) incorporated in the Act(s).
Schedule 3 s 110(2) Enactments repealed Commerce Act 1975 (1975 No 113) (RS Vol 7, p 1) Commerce AmendmentAct1976 (1976 No 67) (RS Vol 7,p148) Commerce AmendmentAct1979 (1979 No 42) (RS Vol 7,p155) Commerce Amendment Act (No 2) 1979 (1979 No 140) (RS Vol 7, p 155) Commerce Amendment Act 1980 (1980 No 105) (RS Vol 7, p 159) Commerce Amendment Act 1983 (1983 No 144) Commerce Amendment Act 1985 (1985 No 7) Commerce Amendment Act (No 2) 1985 (1985 No 67) Milk Amendment Act 1980 (1980 No 60)
Amendment(s) incorporated in the Act(s).
Ministry of Agriculture and Fisheries Amendment Act 1976 (1976 No 102)
Schedule 4 s 110(3) Orders and notices revoked Commerce Act Commencement Order 1975 (SR 1975/247) Commerce Regulations 1984 (SR 1984/68) Natural Gas (Price Restraint) Regulations 1981 (SR 1981/335) PositiveListofControlledGoodsandServices1981(SR1981/37) Positive List of Controlled Goods and Services 1981, Amendment No 1 (SR 1981/156) Positive List of Controlled Goods and Services 1981, Amendment No 2 (SR 1981/166) Positive List of Controlled Goods and Services 1981, Amendment No 3 (SR 1981/173) Positive List of Controlled Goods and Services 1981, Amendment No 4 (SR 1981/348) Positive List of Controlled Goods and Services 1981, Amendment No 5 (SR 1982/42) Positive List of Controlled Goods and Services 1981, Amendment No 6 (SR 1982/121) Positive List of Controlled Goods and Services 1981, Amendment No 7 (SR 1983/122) Positive List of Controlled Goods and Services 1981, Amendment No 8 (SR 1984/29) Positive List of Controlled Goods and Services 1981, Amendment No 9 (SR 1984/327)
Positive List of Controlled Goods and Services 1981, Amendment No 10 (SR 1985/56)
Positive List of Controlled Goods and Services 1981, Amendment No 11 (SR 1985/64)
Positive List of Controlled Goods and Services 1981, Amendment No 12 (SR 1985/165)
Positive List of Controlled Goods and Services 1981, Amendment No 13 (SR 1985/191)
Positive List of Controlled Goods and Services 1981, Amendment No 14 (SR 1985/218)
Positive List of Controlled Goods and Services 1981, Amendment No 15 (SR 1985/303)
Positive List of Controlled Goods and Services 1981, Amendment No 16 (SR 1986/30)
Positive List of Controlled Goods and Services 1981, Amendment No 17 (SR 1986/56)
Schedule 5 s 53ZF Material incorporated by reference
Schedule5: added,on14October2008,bysection28oftheCommerceAmend ment Act 2008 (2008 No 70).
1 Definitions
In this schedule, unless the context otherwise requires,—
material means written material that is set out in a document other than a Part 4 determination Part 4 determination means either of the following:
2 Material incorporated by reference into Part 4 determinations
- (1)
- The Commission may incorporate by reference any material into a Part 4 determination if—
- (a)
- the material deals with technical matters; and
- (b)
- it is impractical to include it in, or publish it as part of, the determination.
- (2)
- Materialmaybeincorporatedbyreferenceintoa Part4 determination—
- (a)
- in whole or in part; and
- (b)
- with any modifications, additions, or variations speci fied in the Part 4 determination.
- (3)
- Material incorporated by reference—
3 Proof of material incorporated by reference
- (1)
- A copy of any material incorporated by reference in a Part 4 determination must be—
- (a)
- certifiedbythechairpersonasacorrectcopyofthematerial; and
- (b)
- retained by the chairperson.
- (2)
- The production in proceedings of a certified copy of the material is, in the absence of evidence to the contrary, sufficient evidence of the incorporation of the material into the Part 4 determination.
4 Access to material incorporated by reference
- (1)
- The Commission—
- (a)
- mustmakecopiesofallmaterialincorporatedbyrefer ence in a Part 4 determination available for inspection during normal working hours at the head office of the Commission; and
- (b)
- mustmakecopiesofthematerialavailableforpurchase at a reasonable price from the head office of the Commission; and
- (c)
- may make copies of the material available in any other way that the chairperson considers appropriate in the circumstances (such as on an Internet site); and
- (d)
- must give notice in the Gazette of how the material is available for inspection and purchase.
- (2)
- Subclause (1) applies to material when it is first incorporated intoa Part4 determination,andtoanysubsequentamendment orreplacementofthematerialthatisincorporatedintothedetermination.
- (3)
- Afailuretocomplywiththisclausedoesnotinvalidatea Part4 determination.
5 Effect of amendments to, or replacements of, material incorporated by reference
Anamendmentto,orreplacementof,materialincorporatedby reference in a Part 4 determination has legal effect as part of the determination only if—
- (a)
- the amendment or replacement material is made by the person or organisation that made the original material; and
- (b)
- the amendment or replacement material is of the same general character as the original material; and
- (c)
- either—
- (i)
- a subsequent Part 4 determination states that the particular amendment or replacement material has legal effect as part of the determination; or
- (ii)
- the chairperson, by notice in the Gazette, adopts the amendment or replacement material as having legal effect as part of the determination.
6 Effect of expiry of material incorporated by reference Material incorporated by reference in a Part 4 determination thatexpires,isrevoked,orceasestohaveeffect,ceasestohave legal effect as part of the Part 4 determination only if—
- (a)
- asubsequent Part4 determinationstatesthatthematerial ceases to have that legal effect; or
- (b)
- thechairperson,bynoticeinthe Gazette,statesthatthe material ceases to have that legal effect.
7 Consultation before material incorporated by reference
- (1)
- This clause applies if—
- (a)
- the Commission proposes to incorporate material by reference into any Part 4 determination; or
- (b)
- the Commission proposes to make a Part 4 determin ation adopting amended or replacement material; or
- (c)
- the chairperson proposes to publish a notice in the Gazette adopting amended or replacement material.
- (2)
- If any of the things referred to in subclause (1) are proposed, the Commission—
- (a)
- must make copies of the material (which in this sub-clause includes any amended or replacement material) proposed to be incorporated by reference available for inspectionduringnormalworkinghoursattheheadoffice of the Commission; and
- (b)
- mustmakecopiesofthematerialavailableforpurchase at a reasonable price from the head office of the Commission; and
- (c)
- may make copies of the material available in any other way that the chairperson considers appropriate in the circumstances (such as on an Internet site); and
- (d)
- mustgivenoticeintheGazette ofhowcopiesofthematerialmaybeinspectedandpurchased,andhowpeople may make comments on the proposal; and
- (e)
- mustallowareasonableopportunityforpeopletocomment on the proposal; and
- (f)
- must consider any comments made within the time allowed.
- (3)
- Afailuretocomplywiththisclausedoesnotinvalidatea Part4 determination.
8 Acts and Regulations Publication Act 1989 not applicable The ActsandRegulationsPublicationAct1989 doesnotapply tomaterialincorporatedbyreferenceina Part4 determination, or to any amendment to, or replacement of, the material.
9 Regulations (Disallowance) Act 1989 not applicable The Regulations (Disallowance) Act 1989 does not apply to material incorporated by reference in a Part 4 determination, or to any amendment to, or replacement of, the material.
Schedule 6 s 55A(2)(c), (4) Exemptions from Part 4 in respect of specific pipelines
Schedule6: added,on14October2008,bysection28oftheCommerceAmend ment Act 2008 (2008 No 70).
Pipeline owner
Todd Taranaki Limited
SwiftEnergyNewZealand
Limited Methanex New Zealand Limited
Energy Infrastructure Limited and Petroleum Infrastructure Limited
Vector Limited
Nova Gas Limited
Pipeline
McKee Production Station—Tikorangi gas pipelines Waihapa—New Plymouth gas pipeline
- Bertrand Road—Waitara Valley Plant gas pipeline (via Faull Road Mixing Station)
- Tikorangi—Faull Road Mixing Station gas pipeline
- FaullRoadMixingStation—Motunui Plant main process gas pipeline
- Faull Road Mixing Station—Waitara
Valley Plant minor gas pipeline The 032 pipeline running from the T-junctionontheMauiPipelineatNgatimaruRoad to the Pohokura Production Station and the Methanex Motunui Methanol Plant
Kapuni—Faull Road Mixing Station low temperature separator gas pipeline All gas pipelines
Commerce Amendment Act 1990
Public Act 1990 No 41 Date of assent 29 June 1990 Commencement see section 1
1 Short Title and commencement
- (1)
- ThisActmaybecitedasthe CommerceAmendmentAct1990 and shall be read together with and deemed part of the CommerceAct1986(hereinafterreferredtoas“theprincipalAct”).
- (2)
- Except as provided in subsection (3), this Act shall come into force on 1 July 1990.
- (3)
- Sections 2(1), (3), (4), (5), and (6), 17, 18, 23, 25, 26 (except subsection (1)(b)), 27, 29, 30, 31, 32, 33, 44, 46, 47, and 48 shall come into force on 1 January 1991.
48 Transitional provisions in relation to mergers and takeovers
- (1)
- Notwithstandingtherepealsandamendmentseffectedbythis Act,—
- (a)
- theprovisionsoftheprincipalActthatwereinforceimmediatelybefore1January1991shallapplyin relation to every notice given under section 66 or section 67 of thatActasin forceimmediately beforethatdateandto every clearance given or authorisation granted in relationtotheproposaltowhichthenoticerelatesasifthis Act had not been passed:
- (b)
- without limiting paragraph (a), every clearance given andeveryauthorisationgrantedundersection66orsection67oftheprincipal Actas inforce immediatelybefore 1 January 1991 or as continued in force by virtue of paragraph (a) is deemed to be a clearance or an authorisation to which section 69 of the principal Act (as inserted by section 23) applies.
- (2)
- Nothing in section 27 or section 47 of the principal Act (as enactedbysection18)shallapplyinrelationtotheacquisition of assets or shares if—
- (a)
- the acquisition results from a proposal that was not a merger or takeover proposal under Part 3 of the Commerce Act 1986 (as in force immediately before the commencement of this Act) by reason of section 47(2) of that Act (as so in force); and
- (b)
- theacquisitiongiveseffecttoawrittenagreementmade beforethecommencementofthisActwhetherornotthe partiestotheacquisitionandtheagreementarethesame persons.
Section48(2): added,on1August1990,bysection2oftheCommerceAmendment Act (No 2) 1990 (1990 No 84).
Commerce (Clearance Validation) Amendment Act 2001
Public Act 2001 No 89 Date of assent 6 November 2001 Commencement see section 2
1 Title
- (1)
- ThisActistheCommerce(ClearanceValidation)Amendment Act 2001.
- (2)
- In this Act, the Commerce Act 1986 is called “the principal Act”.
2 Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
3 Consideration of notices applying for clearance made before 26 May 2001
- (1)
- Thissectionappliestoanoticeundersection66(1)oftheprincipalActseekingclearancefortheacquisitionoftheassetsof a business, or shares if it—
- (a)
- was given to the Commission before the commencement of section 11 of the Commerce Amendment Act 2001; and
- (b)
- hadnotbeenfinallydisposedofbeforethatcommencement.
- (2)
- The principal Act applies to a notice (other than the notice seeking clearance for the proposed acquisition that was the subject of the proceedings Foodstuffs (Auckland) Limited v Commerce Commission and Progressive Enterprises Limited (CA 163/01, 19 September 2001)) to which this section applies as if section 11 of the Commerce Amendment Act 2001 had not been enacted.
- (3)
- Every action of the Commission before the commencement of this Act must for all purposes be treated as being as valid and effectual as it would have been if this Act had come into force on the commencement of section 11 of the Commerce Amendment Act 2001.
- (4)
- This section is for the avoidance of doubt.
Commerce Amendment Act 2004
Public Act 2004 No 23 Date of assent 14 April 2004 Commencement see section 2
1 Title
- (1)
- This Act is the Commerce Amendment Act 2004.
- (2)
- In this Act, the Commerce Act 1986 is called “the principal Act”.
2 Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
3 Associate members
(1) Amendment(s) incorporated in the Act(s).
(2) Fortheavoidanceofdoubt,anyappointmentmadebeforethe commencement of this Act under section 11 of the principal Act is valid and effective whether or not it relates to a matter or class of matters under an Act other than the principal Act.
Contents
1 General
2 Status of reprints
3 How reprints are prepared
4 Changesmadeundersection17CoftheActsandRegulations Publication Act 1989
5 List of amendments incorporated in this reprint (most recent first)
Notes
1 General
This is a reprint of the Commerce Act 1986. The reprint incorporates all the amendments to the Act as at 1 November 2010,asspecifiedinthelistofamendmentsattheendofthese notes.
Relevantprovisionsofany amending enactments thatcontain transitional, savings, or application provisions that cannot be compiled in the reprint are also included, after the principal enactment, in chronological order. For more information, see http://www.pco.parliament.govt.nz/reprints/ .
2 Status of reprints
Under section 16D of the Acts and Regulations Publication Act 1989, reprints are presumed to correctly state, as at the dateofthereprint,thelawenactedbytheprincipalenactment and by the amendments to that enactment. This presumption applies even though editorial changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in the reprint.
This presumption may be rebutted by producing the official volumes of statutes or statutory regulations in which the principal enactment and its amendments are contained.
3 How reprints are prepared
A number of editorial conventions are followed in the preparation of reprints. For example, the enacting words are not included in Acts, and provisions that are repealed or revoked are omitted. For a detailed list of the editorial conventions, see http://www.pco.parliament.govt.nz/editorial-conventions/ or Part8ofthe Tables of New Zealand Acts and Ordinances and Statutory Regulations and Deemed Regulations in Force.
Changes made under section 17C of the Acts and Regulations Publication Act 1989
Section17C oftheActsandRegulationsPublicationAct1989 authorises the making of editorial changes in a reprint as set out in sections 17D and 17E of that Act so that, to the extent permitted, the format and style of the reprinted enactment is consistent with current legislative drafting practice. Changes thatwould alter the effect of the legislation are not permitted.
Anewformatoflegislationwasintroducedon1January2000. Changestolegislativedraftingstylehavealsobeenmadesince 1997, and are ongoing. To the extent permitted by section 17C of the Acts and Regulations Publication Act 1989, all legislationreprintedafter1January2000isinthenewformat forlegislationandreflectscurrentdraftingpracticeatthetime of the reprint.
In outline, the editorial changes made in reprints under the authority of section 17C of the Acts and Regulations Publication Act 1989 are set out below, and they have been applied, where relevant, in the preparation of this reprint:
• omission of unnecessary referential words (such as “of this section” and “of this Act”)
- typefaceandtypesize(TimesRoman,generallyin11.5 point)
- layout of provisions, including:
- indentation
- positionofsectionheadings(eg,thenumberand heading now appear above the section)
- formatofdefinitions(eg,thedefinedtermnowappears in bold type, without quotation marks)
- format of dates (eg, a date formerly expressed as “the 1stdayofJanuary1999”isnowexpressedas“1January 1999”)
- positionofthedateofassent(itnowappearsonthefront page of each Act)
- punctuation (eg, colons are not used after definitions)
- Partsnumberedwithromannumeralsarereplacedwith arabic numerals, and all cross-references are changed accordingly
- case and appearance of letters and words, including:
- format of headings (eg, headings where each word formerly appeared with an initial capital letter followed by small capital letters are amended so that the heading appears in bold, with only the first word (and any proper nouns) appearing with an initial capital letter)
- small capital letters in section and subsection references are now capital letters
- schedules are renumbered (eg, Schedule 1 replaces First Schedule), and all cross-references are changed accordingly
- running heads (the information that appears at the top of each page)
- format of two-column schedules of consequential amendments, and schedules of repeals (eg, they are rearranged into alphabetical order, rather than chronologican( �/span>.
List of amendments incorporated in this reprint (most recent first)
Electricity Industry Act 2010 (2010 No 116): sections 146–156 Commerce Amendment Act 2008 (2008 No 70) Commerce Amendment Act (No 2) 2005 (2005 No 95) Crown Entities Act 2004 (2004 No 115): section 200 EmploymentRelationsAmendmentAct(No2)2004(2004No86): section72 Commerce Amendment Act (No 2) 2004 (2004 No 82) Commerce Amendment Act 2004 (2004 No 23) Supreme Court Act 2003 (2003 No 53): section 48(1) Commerce Amendment Act 2003 (2003 No 32) Trade Marks Act 2002 (2002 No 49): section 201 Human Rights Amendment Act 2001 (2001 No 96): section 70(1) Commerce Amendment Act 2001 (2001 No 32)
NewZealandPublicHealthandDisabilityAct2000(2000No91): section107 District Courts Amendment Act 1998 (1998 No 76): section 7 Commerce Amendment Act 1996 (1996 No 113) Copyright Act 1994 (1994 No 143): section 236(1) Commerce Amendment Act 1994 (1994 No 135) Layout Designs Act 1994 (1994 No 116): section 42(1) Company Law Reform (Transitional Provisions) Act 1994 (1994 No 16):
section 2 Defamation Act 1992 (1992 No 105): section 56(1) Judicature Amendment Act 1991 (1991 No 60): section 3(4) National Provident FundRestructuring Act 1990 (1990 No126): section 80 Port Companies Amendment Act 1990 (1990 No 120): section 11(1) Commerce Amendment Act 1990 (1990 No 41) Civil Aviation Amendment Act 1987 (1987 No 12): sections 2(3), 43(1) Official Information Amendment Act 1987 (1987 No 8): section 25(1) Fair Trading Act 1986 (1986 No 121): section 49(2)
Wellington, New Zealand: Published under the authority of the New Zealand Government—2011