Commerce Act 1986
Version as at 27 August 2025
Commerce Act 1986
Public Act |
1986 No 5 |
|
Date of assent |
28 April 1986 |
|
Commencement |
see section 1(2) |
Note
The Parliamentary Counsel Office has made editorial and format changes to this version using the powers under subpart 2 of Part 3 of the Legislation Act 2019.
Note 4 at the end of this version provides a list of the amendments included in it.
This Act is administered by the Ministry of Business, Innovation, and Employment.
Contents
Title: repealed, on 26 May 2001, by section 3 of the Commerce Amendment Act 2001 (2001 No 32).
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,—
accounting period has the same meaning as in section 5 of the Financial Reporting Act 2013
acquire,—
(a)
in relation to goods, includes obtain by way of gift, purchase, or exchange; and also includes take on lease, hire, or hire purchase:
(b)
in relation to services, includes accept:
(c)
in relation to goods or services that are interests in land, includes obtain by way of gift, purchase, exchange, lease, or licence
arrive at, in relation to an understanding, includes reach, and enter into
assets includes intangible assets
associate member means a member appointed under section 11(1)
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 goods or services are acquired or supplied otherwise than free of charge
cartel provision means a provision described in section 30A(1)
chairperson means the chairperson of the Commission
collaborative activity has the meaning given in section 31(4)
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)
Consumers Price Index means the Consumers Price Index (all groups) published by Statistics New Zealand or, if that index ceases to be published, any measure certified by the Government Statistician as being equivalent to that index
court means the High Court of New Zealand
covenant means a covenant (including a promise not under seal) annexed to or running with an estate or interest in land (whether at law or in equity and whether or not for the benefit 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)
any information recorded or stored by means of any tape 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
give effect to, in relation to a provision of a contract, arrangement, understanding, or covenant, includes—
(a)
do an act or thing in pursuance of or in accordance with 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:
(iii)
minerals, trees, and crops, whether on, under, or attached to land or not:
(iv)
gas and electricity:
(v)
to avoid doubt, water and computer software
international liner shipping service—
(a)
means a service exclusively for the carriage of goods by sea from a place in New Zealand to a place outside New Zealand, or from a place outside New Zealand to a place in New Zealand, that—
(i)
operates at regular intervals on a fixed route or fixed routes in accordance with an advertised schedule; and
(ii)
is supplied, as its capacity allows, to any paying customer; but
(b)
excludes a service for the carriage of goods to or from a ship or the loading or unloading of a ship
local authority includes (except for the purpose of subpart 12 of Part 4 and Schedule 7) every local authority and every public body or other authority created by or pursuant to any public Act or local Act
market allocating has the meaning given in section 30A(4)
member of the Commission—
(a)
means a member appointed under section 9(2); and
(b)
means the Telecommunications Commissioner appointed under section 9 of the Telecommunications Act 2001; and
(ba)
means the Grocery Commissioner appointed under section 167 of the Grocery Industry Competition Act 2023; and
(c)
in the circumstances in section 11(3), includes an associate member
Minister means the Minister of the Crown who, under the authority of any warrant or with the authority of the Prime Minister, is for the time being responsible for the administration of this Act
overseas regulator means an overseas body that has competition law functions corresponding to those of the Commission under this Act
person, includes a local authority, and any association of persons whether incorporated or not
place includes any premises, building, aircraft, ship, carriage, vehicle, or receptacle
prescribed means prescribed by regulations under this Act or by the Commission
price, includes valuable consideration in any form, whether direct or indirect; and includes any consideration that in effect relates to the acquisition or supply of goods or services, although ostensibly relating to any other matter or thing
price fixing has the meaning given in section 30A(2)
provision,—
(a)
in relation to a covenant, means a term of the covenant; and
(b)
in relation to an understanding or arrangement, means any matter forming part of or relating to the understanding or arrangement
public service agency means any of the agencies listed in section 10(a) of the Public Service Act 2020
publicly available, in relation to making a document or information available, means that—
(a)
the document or information is available for inspection, free of charge, on an Internet site that is publicly accessible at all reasonable times; and
(b)
a copy of the document or information is available for inspection at all reasonable times, free of charge, at the head office of the person that is required to make it publicly available or, if the person is the Minister, at the head office of the department responsible for the administration of this Act; and
(c)
copies of the document may be purchased by any person at a reasonable price
restricting output has the meaning given in section 30A(3)
services includes any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges, or facilities that are or are to be provided, granted, or conferred in trade; and, without limiting the generality of the foregoing, 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 professional nature), whether with or without the supply of goods; or
(ii)
the provision of, or the use or enjoyment of facilities for, accommodation, amusement, the care of persons or animals or things, entertainment, instruction, parking, or recreation; or
(iii)
the conferring of rights, benefits, or privileges for which remuneration is payable in the form of a royalty, tribute, levy, or similar exaction; or
(iv)
to avoid doubt, the supply of electricity, gas, telecommunications, or water, or the removal of waste water:
(b)
a contract of insurance, including life assurance, and life 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 or granting of credit, or the making of arrangements for the lending of money or granting of credit, or the buying or discounting of a credit instrument, or the 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
share means a share in the share capital of a company or other 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)
a power to exercise, or control the exercise of, a right to vote attaching to any such share that carries the right to vote at meetings of the company:
(c)
a power to acquire or dispose of, or control the acquisition or disposition of, any such share:
(d)
a perpetual debenture and perpetual debenture stock
substantial means real or of substance, except in—
(a)
sections 36 and 36A when referring to a degree of power in a market; and
(b)
(c)
supply,—
(a)
in relation to goods, includes supply (or resupply) by way of gift, sale, exchange, lease, hire, or hire purchase; and
(b)
in relation to services, includes provide, grant, or confer; and
(c)
in relation to goods or services that are interests in land, includes disposition
trade means any trade, business, industry, profession, occupation, activity of commerce, or undertaking relating to the supply or acquisition of goods or services
turnover means the total gross revenues (exclusive of any tax required to be collected) received or receivable by a body corporate 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)
a Saturday, a Sunday, Waitangi Day, Good Friday, Easter Monday, Anzac Day, the Sovereign’s birthday, Te Rā Aro ki a Matariki/Matariki Observance Day, and Labour Day; and
(ab)
if Waitangi Day or Anzac Day falls on a Saturday or a Sunday, the following Monday; and
(b)
a day in the period commencing with 25 December in any year and ending with 15 January in the following year.
(1A)
[Repealed](2)
In this Act,—
(a)
a reference to engaging in conduct shall be read as a reference to doing or refusing to do any act, including—
(i)
the entering into, or the giving effect to a provision of, a contract or arrangement; or
(ii)
the arriving at, or the giving effect to a provision of, an understanding; or
(iii)
the requiring of the giving of, or the giving effect to a provision of, or the giving of, a covenant:
(b)
a reference to conduct, when that expression is used as a noun otherwise than as mentioned in paragraph (a), shall be read as a reference to the doing of, or the refusing to do, any act, including—
(i)
the entering into, or the giving effect to a provision of, a contract or arrangement; or
(ii)
the arriving at, or the giving effect to a provision of, an understanding; or
(iii)
the requiring of the giving of, or the giving of, or the giving effect to a provision of, a covenant:
(c)
a reference to refusing to do an act includes a reference to—
(i)
refraining (otherwise than inadvertently) from doing that act; or
(ii)
making it known that that act will not be done:
(d)
a reference to a person offering to do an act, or to do an 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)
Where any provision of this Act is expressed to render a provision of a contract or a covenant unenforceable if the provision of the contract or the covenant has or is likely to have a particular effect, that provision of this Act applies in relation to the provision of the contract or the covenant at any time when the provision of the contract or the covenant has or is likely to have that effect, notwithstanding that—
(a)
at an earlier time the provision of the contract or the covenant did not have that effect or was not regarded as likely to have that effect; or
(b)
the provision of the contract or the covenant will not or 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 includes a reference to the supply or acquisition of goods together with other property or services or both:
(d)
a reference to the supply or acquisition of services 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)
a provision of a contract, arrangement or understanding, 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 or purposes that included or include that purpose; and
(ii)
that purpose was or is a substantial purpose:
(b)
a person shall be deemed to have engaged, or to engage, in conduct for a particular purpose or a particular reason if—
(i)
that person engaged or engages in that conduct for that purpose or reason or for purposes or reasons that included or include that purpose or reason; and
(ii)
that purpose or reason was or is a substantial purpose or reason.
(6)
In this Act,—
(a)
a reference to a contract shall be construed as including 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 construed notwithstanding any express reference in this 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)
a reference to a party to a contract, in relation to such a lease or licence, shall be read as including a reference to any person bound by, or entitled to the benefit of, any provision contained in the lease or licence:
(d)
a reference to a party to a covenant means a person who—
(i)
is bound by, or entitled to the benefit of, the covenant; or
(ii)
would be bound by, or entitled to the benefit of, the covenant if not for section 28(4) or 30C.
(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 section 5 of the Companies Act 1993); or
(b)
both of them are subsidiaries (within the meaning of that section) 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 (Transfers) Act 1993; or
(c)
both of them are interconnected with bodies corporate that, in accordance with paragraph (a) or paragraph (b), are interconnected,—
and interconnected bodies corporate has a corresponding meaning.
(7A)
For the purposes of subsection (7)(a) and (b), no body corporate may be regarded as a subsidiary (within the meaning of section 5 of the Companies Act 1993) of the Crown.
(8)
For the purposes of this Act,—
(a)
any contract or arrangement entered into, or understanding arrived at, or covenant given or required to be given, by an association or body of persons, shall be deemed to have been entered into, arrived at, given, or required to be given 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 that he disassociates himself from the contract, arrangement, understanding, or covenant or any provision thereof and who does so disassociate himself:
(b)
to any member of an association or body of persons who establishes that he had no knowledge and could not reasonably have been expected to have had knowledge of the contract, arrangement, understanding, or covenant.
Compare: 1975 No 113 ss 2(1), 67A(3); 1976 No 67 ss 22, 23(3); 1979 No 140 s 2; 1983 No 144 s 26; Trade Practices Act 1974 ss 4, 4C, 4F, 4H (Aust)
Section 2(1) accounting period: replaced, on 1 April 2014, by section 126 of the Financial Reporting (Amendments to Other Enactments) Act 2013 (2013 No 102).
Section 2(1) acquire paragraph (c): amended, on 5 May 2022, by section 4(3) of the Commerce Amendment Act 2022 (2022 No 11).
Section 2(1) acquire paragraph (c): amended, on 15 August 2017, by section 32(2)(d) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
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) business paragraph (b): replaced, on 5 May 2022, by section 4(4) of the Commerce Amendment Act 2022 (2022 No 11).
Section 2(1) cartel provision: inserted, on 15 August 2017, by section 4 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
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) collaborative activity: inserted, on 15 August 2017, by section 4 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
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: repealed, on 26 October 2018, by section 17(1) of the Commerce Amendment Act 2018 (2018 No 42).
Section 2(1) Consumers Price Index: inserted, on 1 September 2022, by section 107(1) of the Data and Statistics Act 2022 (2022 No 39).
Section 2(1) covenant: amended, on 15 August 2017, by section 32(2)(d) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 2(1) deputy chairman: repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section 2(1) deputy chairperson: inserted, on 25 January 2005, by section 200 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) give effect to: amended, on 5 April 2023, by section 4(5) of the Commerce Amendment Act 2022 (2022 No 11).
Section 2(1) goods: substituted, on 8 July 2003, by section 3(1) of the Commerce Amendment Act 2003 (2003 No 32).
Section 2(1) international liner shipping service: inserted, on 15 August 2017, by section 4 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 2(1) local authority: amended, on 27 August 2025, by section 8 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Section 2(1) market allocating: inserted, on 15 August 2017, by section 4 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 2(1) member of the Commission: substituted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section 2(1) member of the Commission paragraph (ba): inserted, on 10 July 2023, by section 200 of the Grocery Industry Competition Act 2023 (2023 No 31).
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) overseas regulator: inserted, on 5 May 2022, by section 4(1) of the Commerce Amendment Act 2022 (2022 No 11).
Section 2(1) place: inserted, on 1 July 1990, by section 2(2) of the Commerce Amendment Act 1990 (1990 No 41).
Section 2(1) price: amended, on 5 May 2022, by section 4(6) of the Commerce Amendment Act 2022 (2022 No 11).
Section 2(1) price fixing: inserted, on 15 August 2017, by section 4 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 2(1) provision: replaced, on 5 April 2023, by section 4(7) of the Commerce Amendment Act 2022 (2022 No 11).
Section 2(1) public service agency: inserted, on 5 May 2022, by section 4(1) of the Commerce Amendment Act 2022 (2022 No 11).
Section 2(1) publicly available: inserted, on 26 October 2018, by section 17(2) of the Commerce Amendment Act 2018 (2018 No 42).
Section 2(1) restricting output: inserted, on 15 August 2017, by section 4 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 2(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).
Section 2(1) share paragraph (b): amended, on 1 July 1994, by section 2 of the Company Law Reform (Transitional Provisions) Act 1994 (1994 No 16).
Section 2(1) substantial: inserted, on 5 April 2023, by section 4(2) of the Commerce Amendment Act 2022 (2022 No 11).
Section 2(1) substantial: repealed, on 1 January 1991, by section 2(4) of the Commerce Amendment Act 1990 (1990 No 41).
Section 2(1) supply: replaced, on 5 May 2022, by section 4(8) of the Commerce Amendment Act 2022 (2022 No 11).
Section 2(1) trade: amended, on 5 May 2022, by section 4(9) of the Commerce Amendment Act 2022 (2022 No 11).
Section 2(1) turnover: inserted, on 26 May 2001, by section 5 of the Commerce Amendment Act 2001 (2001 No 32).
Section 2(1) working day paragraph (a): replaced, on 12 April 2022, by wehenga 7 o Te Ture mō te Hararei Tūmatanui o te Kāhui o Matariki 2022/section 7 of the Te Kāhui o Matariki Public Holiday Act 2022 (2022 No 14).
Section 2(1) working day paragraph (ab): inserted, on 1 January 2014, by section 8 of the Holidays (Full Recognition of Waitangi Day and ANZAC Day) Amendment Act 2013 (2013 No 19).
Section 2(1A): repealed, on 5 April 2023, by section 4(10) of the Commerce Amendment Act 2022 (2022 No 11).
Section 2(2)(a)(iii): amended, on 5 April 2023, by section 4(11) of the Commerce Amendment Act 2022 (2022 No 11).
Section 2(2)(b)(iii): amended, on 5 April 2023, by section 4(12) of the Commerce Amendment Act 2022 (2022 No 11).
Section 2(4): amended, on 15 August 2017, by section 32(2)(d) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 2(5): amended, on 15 August 2017, by section 32(2)(d) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 2(6): amended, on 15 August 2017, by section 32(2)(d) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 2(6)(d): inserted, on 5 April 2023, by section 4(13) of the Commerce Amendment Act 2022 (2022 No 11).
Section 2(7): substituted, on 1 January 1991, by section 2(6) of the Commerce Amendment Act 1990 (1990 No 41).
Section 2(7)(a): replaced, on 5 December 2013, by section 14 of the Companies Amendment Act 2013 (2013 No 111).
Section 2(7)(b): replaced, on 5 December 2013, by section 14 of the Companies Amendment Act 2013 (2013 No 111).
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).
Section 2(7)(c): amended, on 15 August 2017, by section 32(2)(d) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 2(7A): replaced, on 5 December 2013, by section 14 of the Companies Amendment Act 2013 (2013 No 111).
Section 2(8): amended, on 15 August 2017, by section 32(2)(d) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 2(8)(a): amended, on 5 April 2023, by section 4(14)(a) of the Commerce Amendment Act 2022 (2022 No 11).
Section 2(8)(a): amended, on 5 April 2023, by section 4(14)(b) of the Commerce Amendment Act 2022 (2022 No 11).
Section 2(9)(a): amended, on 5 April 2023, by section 4(15) of the Commerce Amendment Act 2022 (2022 No 11).
Section 2(9)(b): amended, on 5 April 2023, by section 4(15) of the Commerce Amendment Act 2022 (2022 No 11).
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 in section 36A, 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)
[Repealed](1C)
[Repealed](2)
In this Act, unless the context otherwise requires, references to the lessening of competition include references to the hindering or preventing of competition.
(3)
For the purposes of this Act, the effect on competition in a market 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 of a contract, arrangement, or understanding, or of a covenant, 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)
any other market in which those goods or services may be supplied or acquired.
(5)
For the purposes of section 27, a provision of a contract, arrangement, or understanding shall be deemed to have or to be likely to have the effect of substantially lessening competition 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—
taken together, have or are likely to have the effect of substantially lessening competition in that market.
(6)
For the purposes of section 28, a covenant shall be deemed to have or to be likely to have the effect of substantially lessening 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—
taken together, have or are likely to have the effect of substantially lessening competition in that market.
(7)
For the purposes of sections 27, 28, 36, and 36A, the engaging in conduct 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
(b)
the engaging by that person in conduct of the same or a similar kind—
taken together, have or are likely to have the effect of substantially lessening competition in that market.
(8)
[Repealed](9)
[Repealed]Compare: Trade Practices Act 1974 ss 4, 4E, 4G, 45(3), (4), 45B(4), 46 (Aust)
Section 3(1): substituted, on 1 July 1990, by section 3(1) of the Commerce Amendment Act 1990 (1990 No 41).
Section 3(1): amended, on 15 August 2017, by section 32(2)(d) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 3(1A): inserted, on 1 July 1990, by section 3(1) of the Commerce Amendment Act 1990 (1990 No 41).
Section 3(1A): amended, on 5 April 2023, by section 5(1) of the Commerce Amendment Act 2022 (2022 No 11).
Section 3(1B): repealed, on 5 April 2023, by section 5(2) of the Commerce Amendment Act 2022 (2022 No 11).
Section 3(1C): repealed, on 5 April 2023, by section 5(2) of the Commerce Amendment Act 2022 (2022 No 11).
Section 3(7): amended, on 5 April 2023, by section 5(3) of the Commerce Amendment Act 2022 (2022 No 11).
Section 3(8): repealed, on 26 May 2001, by section 9(4) of the Commerce Amendment Act 2001 (2001 No 32).
Section 3(9): repealed, on 26 May 2001, by section 11(3) of the Commerce Amendment Act 2001 (2001 No 32).
3A Commission to consider efficiency
Where the Commission is required under this Act to determine whether or not, or the extent to which, conduct will result, or will be likely to result, in a benefit to the public, the Commission shall have regard to any efficiencies that the Commission considers will result, or will be likely to result, from that conduct.
Section 3A: inserted, on 1 July 1990, by section 4 of the Commerce Amendment Act 1990 (1990 No 41).
4 Application of Act
(1AA)
For the purposes of this Act,—
(a)
a person engages in conduct in New Zealand if any act or omission forming part of the conduct occurs in New Zealand; and
(b)
a person (person A) engages in conduct in New Zealand if another person (person B) engages in conduct in New Zealand, and the conduct of person B is deemed (by virtue of section 90) to be the conduct of person A.
(1)
This Act extends to the engaging in conduct outside New Zealand by any person resident or carrying on business in New Zealand to the extent that such conduct affects a market in New Zealand.
(2)
Without limiting subsection (1), section 36A extends to the engaging in conduct outside New Zealand by any person resident or carrying on business in Australia to the extent that such conduct affects a market, not being a market exclusively for services, in New Zealand.
(3)
[Repealed]Section 4: substituted, on 1 July 1990, by section 5 of the Commerce Amendment Act 1990 (1990 No 41).
Section 4 heading: amended, on 15 August 2017, by section 5(1) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 4(1AA): inserted, on 15 August 2017, by section 5(2) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 4(3): repealed, on 15 August 2017, by section 5(3) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
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)
The Crown shall not be liable to pay a pecuniary penalty under section 80.
(3)
The Crown shall not be liable to be prosecuted for an offence against this Act.
(4)
Where it is alleged that the Crown has contravened any provision of this Act and that contravention constitutes an offence, the Commission or the person directly affected by the contravention may apply to the court for a declaration that the Crown has contravened that provision; and, if the court is satisfied beyond 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)
This Act applies to every body corporate that is an instrument of the Crown in respect of the Government of New Zealand engaged in trade.
(2)
Notwithstanding any enactment or rule of law, proceedings under Part 6 may be brought against a body corporate referred 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
(1)
The provisions referred to in subsection (2) 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 Commonwealth of Australia within the meaning of section 4 of the Competition and Consumer Act 2010 of the Parliament of the 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)
every body corporate in which a State of the Commonwealth 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.
(2)
For the purposes of subsection (1), the provisions are—
(a)
section 36A; and
(b)
Part 5, in so far as it relates to section 36A; and
(c)
Schedule 1AA, in so far as it relates to section 36A; and
(d)
Parts 6 and 7, in so far as they relate to a contravention of, or confer powers that may be exercised in relation to,—
(i)
section 36A; or
(ii)
Part 5 or Schedule 1AA (in so far as that Part or that schedule relates to section 36A).
Section 6A: inserted, on 1 July 1990, by section 6 of the Commerce Amendment Act 1990 (1990 No 41).
Section 6A(1): amended, on 5 April 2023, by section 6(1) of the Commerce Amendment Act 2022 (2022 No 11).
Section 6A(1)(b): amended, on 15 August 2017, by section 32(2)(c) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 6A(2): inserted, on 5 April 2023, by section 6(2) of the Commerce Amendment Act 2022 (2022 No 11).
6B Crown and Crown corporations not immune from jurisdiction in relation to certain provisions of Competition and Consumer Act 2010
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 section 46A of the Competition and Consumer Act 2010 of the Parliament 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.
Section 6B: inserted, on 1 July 1990, by section 6 of the Commerce Amendment Act 1990 (1990 No 41).
Section 6B heading: amended, on 15 August 2017, by section 32(2)(c) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 6B: amended, on 15 August 2017, by section 32(2)(c) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
6C Transitional, savings, and related provisions
The transitional, savings, and related provisions set out in Schedule 1AA have effect according to their terms.
Section 6C: inserted, on 15 August 2017, by section 6 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
6C Application of Evidence Amendment Act 1980
[Repealed]Section 6C: repealed, on 30 May 2017, by section 9 of the Regulatory Systems (Commercial Matters) Amendment Act 2017 (2017 No 12).
7 Relationship with law on restraint of trade
(1)
Nothing in this Act limits or affects any rule of law relating to restraint of trade not inconsistent with any of the provisions of this Act.
(2)
[Repealed](3)
No rule of law referred to in subsection (1) affects the interpretation of any of the provisions of this Act.
Compare: Trade Practices Act 1974 s 4M (Aust)
Section 7 heading: replaced, on 5 April 2023, by section 7(1) of the Commerce Amendment Act 2022 (2022 No 11).
Section 7(2): repealed, on 5 April 2023, by section 7(2) of the Commerce Amendment Act 2022 (2022 No 11).
Section 7(3): amended, on 5 April 2023, by section 7(3) of the Commerce Amendment Act 2022 (2022 No 11).
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)
any other Act that expressly provides for the functions, 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).
Section 8(3): repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section 8(4): repealed, on 1 July 1990, by section 7 of the Commerce Amendment Act 1990 (1990 No 41).
8A Application of Crown Entities Act 2004
(1)
The Commission is a Crown entity for the purposes of section 7 of the Crown Entities Act 2004.
(2)
The Crown Entities Act 2004 applies to the Commission except to the extent that this Act expressly provides otherwise.
(3)
Members of the Commission are the board for the purposes of the Crown Entities Act 2004.
Section 8A: inserted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
9 Membership of Commission
(1)
The Commission must have no less than 4, and no more than 8, members appointed in accordance with this section, and may also have associate members appointed under section 11(1).
(2)
No less than 3, and no more than 7, of the members, of whom at least 1 must be a barrister and solicitor of at least 5 years’ standing, must be appointed by the Governor-General in accordance with section 28(1)(b) of the Crown Entities Act 2004.
(3)
One of the members must be appointed by the Governor-General as Telecommunications Commissioner under section 9 of the Telecommunications Act 2001.
(3A)
One of the members must be appointed by the Governor-General as Grocery Commissioner under section 167 of the Grocery Industry Competition Act 2023.
(3B)
[Repealed](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, by virtue of that person’s knowledge of or experience in industry, commerce, economics, law, accountancy, 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.
Section 9: substituted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section 9(1): amended, on 5 May 2022, by section 8(1) of the Commerce Amendment Act 2022 (2022 No 11).
Section 9(2): amended, on 5 May 2022, by section 8(2) of the Commerce Amendment Act 2022 (2022 No 11).
Section 9(3A): inserted, on 10 July 2023, by section 201 of the Grocery Industry Competition Act 2023 (2023 No 31).
Section 9(3B): repealed, on 17 February 2024, by section 12(1) of the Water Services Acts Repeal Act 2024 (2024 No 2).
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 of subsidy or contribution may from time to time be paid into any retirement scheme (within the meaning of section 6(1) of the Financial Markets Conduct Act 2013).
(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 Entities Act 2004 (2004 No 115).
Section 10(2): repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section 10(3): repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section 10(4): repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section 10(5): substituted, on 1 April 1991, by section 80 of the National Provident Fund Restructuring Act 1990 (1990 No 126).
Section 10(5): amended, on 1 December 2014, by section 150 of the Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70).
Section 10(6): repealed, on 25 January 2005, by section 200 of the Crown Entities 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 notice.
(3)
Subject to subsection (4), an associate member shall be deemed to be a member of the Commission for the purposes of the performance or exercise of any function, duty, or power of a member of the Commission under this Act or any other Act; and except where this section or the context otherwise requires, a reference in this Act or in any other Act to a member of the Commission must be construed as including a reference to an associate member.
(4)
An associate member may attend and vote only at a meeting of the Commission relating to the matter or class of matters specified in that member’s notice of appointment (including a meeting relating to matters incidental to the matter or class of matters so specified).
(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 section 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).
Section 11(3): amended, on 15 April 2004, by section 3(1)(a) of the Commerce Amendment Act 2004 (2004 No 23).
Section 11(3): amended, on 15 April 2004, by section 3(1)(b) of the Commerce 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).
Section 11(5): added, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section 11(6): added, on 25 January 2005, by section 200 of the Crown Entities 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)
The chairperson and deputy chairperson may only be removed from office as chairperson or deputy chairperson for just cause.
(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 Entities Act 2004 (2004 No 115).
13 Termination of appointment of members
(1)
The Governor-General may remove any member of the Commission appointed by the Governor-General from office under section 39 of the Crown Entities Act 2004.
(2)
The Minister may remove any associate member from office on the same grounds and in the same manner as the Governor-General may remove a member under section 39 of the Crown Entities Act 2004.
(3)
Subsection (2) applies despite section 39(1) of the Crown Entities Act 2004.
(4)
Notwithstanding that the term of office of a member has expired or that a member has resigned that office, that person shall be deemed to continue as a member for the purpose of—
(a)
completing the determination of any matter before that person, as a member, which was commenced before the expiration of the term of office or before the resignation took effect, as the case may be:
(b)
giving reconsideration to any matter following a direction of the court under Part 6.
(5)
Subsection (4) applies despite sections 32(3) and 45 of the Crown Entities Act 2004.
(6)
To avoid doubt, a former member who is deemed to continue as a member under subsection (4) is not a member for the purposes of determining the number of members under section 9(1) or (2).
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).
Section 13(5): added, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section 13(6): inserted, on 5 May 2022, by section 9 of the Commerce Amendment Act 2022 (2022 No 11).
14 Disclosure of financial interests
[Repealed]Section 14: repealed, on 25 January 2005, by section 200 of the Crown Entities 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 Schedule 5 of the Crown Entities Act 2004.
(6)
[Repealed](7)
Subject to the provisions of this Act, the chairperson may give directions regarding the procedure to be followed at or in connection with any meeting of the Commission.
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 Entities Act 2004 (2004 No 115).
Section 15(2): repealed, on 25 January 2005, by section 200 of the Crown Entities 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 Entities 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 Entities 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)
The chairperson may, by writing signed by him, direct that the powers of the Commission under this Act or any other Act in relation to any matter or class of matter, shall be exercised by separate Divisions of the Commission.
(1A)
The powers in subsection (1) are an exception to clause 14 of Schedule 5 of the Crown Entities Act 2004.
(2)
Each Division shall consist of such members as are for the time being assigned to that Division by the chairperson.
(3)
If the members appointed to any Division do not include either the chairperson or the deputy chairperson, the chairperson shall from time to time nominate the member who is to be chairperson of that Division.
(4)
In the absence of the member so nominated from any meeting of the Division, the members present shall appoint one of their number to be the chairperson of the Division for the purposes of that meeting.
(5)
For the purpose of the determination of a matter or class of matters specified in a direction given under subsection (1), the Commission shall be deemed to consist of the Division of the Commission specified in the direction; and the powers of any such Division shall not be affected by any changes or vacancies in its membership.
(6)
A Division of the Commission may exercise powers of the Commission under this Act or any other Act notwithstanding that another Division of the Commission is exercising powers of the Commission at the same time.
(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
Section 16 heading: amended, on 25 January 2005, by section 200 of the Crown 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).
Section 16(1A): inserted, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section 16(2): amended, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section 16(3): amended, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section 16(4): amended, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section 16(6): amended, on 15 April 2004, by section 5(2) of the Commerce Amendment Act 2004 (2004 No 23).
Section 16(7): amended, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
17 Assent to determination
(1)
A determination in writing signed, or assented to in writing (whether sent by post, delivery, or electronic communication), by all the members of the Commission or, of a Division of the Commission, as the case may be, necessary to constitute a quorum shall be as valid and effectual as if it had been made at a meeting of the Commission or Division duly called and constituted by those members.
(2)
This section applies despite clause 13 of Schedule 5 of the Crown Entities Act 2004.
Compare: 1975 No 113 s 7A; 1983 No 144 s 6
Section 17(1): amended, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Section 17(2): added, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
18 Officers and employees
[Repealed]Section 18: repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
18A Personnel policy
[Repealed]Section 18A: repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
18B Equal employment opportunities
[Repealed]Section 18B: repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
18C Choice of procedure
[Repealed]Section 18C: repealed, on 1 December 2004, by section 72 of the Employment 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 assisting the Commission by virtue of an appointment under section 18(1) and was a contributor to the Government Superannuation Fund under Part 2 of the Government Superannuation Fund Act 1956 shall be deemed, for the purposes of the Government Superannuation Fund Act 1956, to be employed in the Government service so long as that person continues to be an officer or employee of the Commission; and that Act shall apply to the person in all respects as if service as such an officer or employee were Government service. For the purposes of the Government Superannuation Fund Act 1956, the controlling authority in relation to any such person shall be the Commission.
(3)
Subject to the Government Superannuation Fund Act 1956, nothing in subsection (2) shall entitle any person to whom that subsection applies to become a contributor to the Government Superannuation Fund after ceasing to be a contributor to that Fund.
Section 18D: inserted, on 1 July 1990, by section 10 of the Commerce Amendment 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]Section 19: repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
20 Funds of Commission
[Repealed]Section 20: repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
21 Bank accounts
[Repealed]Section 21: repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
22 Crown entity
[Repealed]Section 22: repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
23 Investment of money
[Repealed]Section 23: repealed, on 25 January 2005, by section 200 of the Crown Entities 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)
the carrying out of the functions and the exercise of the 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 shall have regard to the economic policies of the Government as transmitted in writing from time to time to the Commission by the Minister.
(2)
The Minister shall cause every statement of economic policy transmitted to the Commission under subsection (1) to be published in the Gazette and laid before Parliament as soon as practicable after so transmitting it.
(3)
For the avoidance of doubt, a statement of economic policy transmitted to the Commission under this section is not a direction for the purposes of Part 3 of the Crown Entities Act 2004.
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).
Section 26(3): added, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
Part 2 Restrictive trade practices
Contracts, arrangements, understandings, or covenants substantially lessening competition
Heading: replaced, on 5 April 2023, by section 10 of the Commerce Amendment Act 2022 (2022 No 11).
27 Contracts, arrangements, or understandings substantially 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, or understanding that has the purpose, or has or is likely to have the effect, of substantially lessening competition in a market.
(3)
Subsection (2) applies in respect of a contract or arrangement entered into, or an understanding arrived at, whether before or after the commencement of this Act.
(4)
No provision of a contract, whether made before or after the commencement of this Act, that has the purpose, or has or is likely to have the effect, of substantially lessening competition in a market is enforceable.
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)
No person, either on his own or on behalf of an associated person, shall carry out or enforce the terms of a covenant that has the purpose, or has or is likely to have the effect, of substantially lessening competition in a market.
(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 commencement of this Act, that has the purpose, or has or is likely to have the effect of substantially lessening competition in a market is enforceable.
(5)
No person shall—
(a)
threaten to engage in particular conduct if a person who, but for subsection (4), would be bound by a covenant, does not comply with the terms of the covenant; or
(b)
engage in particular conduct because a person who, but for subsection (4), would be bound by a covenant, has failed to comply, or proposes or threatens to fail to comply, with the terms of the covenant.
(6)
For the purposes of this section, where a person—
(a)
issues an invitation to another person to enter into a contract containing a covenant; or
(b)
makes an offer to another person to enter into a contract containing a covenant; or
(c)
makes it known that the person will not enter into a contract of a particular kind unless the contract contains a covenant of a particular kind or in particular terms,—
that person shall, by issuing that invitation, making that offer, or making that fact known, be deemed to require the giving of the covenant.
(7)
For the purposes of this section, 2 persons shall be taken to be associated with each other in relation to a covenant or proposed covenant if, but only if,—
(a)
one person is under an obligation (otherwise than in pursuance of the covenant or proposed covenant), 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)
Section 28(6): amended, on 5 April 2023, by section 11 of the Commerce Amendment Act 2022 (2022 No 11).
28A Certain grocery-related covenants are treated as prohibited and unenforceable
(1)
A covenant to which this section applies must be treated, for the purpose of section 27 or 28 (as the case may be), as having the purpose, or as having or being likely to have the effect, of substantially lessening competition in the relevant market.
(2)
This section applies to any of the following in which a designated grocery retailer has an interest:
(a)
a restrictive or positive covenant that has the purpose, or has or is likely to have the effect, of impeding the development or use of land or a site as—
(i)
a retail grocery store; or
(ii)
any other retail store that is likely to compete with a retail grocery store operated by the designated grocery retailer:
(b)
a restrictive or positive covenant, and the provisions of any other contracts, arrangements, understandings, or covenants, if—
(i)
the restrictive or positive covenant has 1 or more of the same parties as the contract, arrangement, understanding, or covenant; and
(ii)
taken together, the restrictive or positive covenant and the provisions have the purpose, or have or are likely to have the effect, of impeding the development or use of land or a site as—
(A)
a retail grocery store; or
(B)
any other retail store that is likely to compete with a retail grocery store operated by the designated grocery retailer:
(c)
an exclusivity covenant or other provision in a lease that has the purpose, or has or is likely to have the effect, of impeding another person from operating—
(i)
a retail grocery store; or
(ii)
any other retail store that is likely to compete with a retail grocery store operated by the designated grocery retailer:
(d)
an exclusivity covenant or other provision in a lease, and the provisions of any other contracts, arrangements, understandings, or covenants, if—
(i)
the lease has 1 or more of the same parties as the contract, arrangement, understanding, or covenant; and
(ii)
taken together, the exclusivity covenant or other provision in the lease and the provisions have the purpose, or have or are likely to have the effect, of impeding another person from operating—
(A)
a retail grocery store; or
(B)
any other retail store that is likely to compete with a retail grocery store operated by the designated grocery retailer.
(3)
However, this section does not apply to—
(a)
a covenant that is reasonably necessary for environmental impact reasons connected with a retail fuel site within the meaning of the Fuel Industry Act 2020; or
(b)
a covenant in respect of which the Commission has granted an authorisation under section 58 or given a clearance under section 65A.
(4)
In this section, unless the context otherwise requires,—
covenant means any covenant or other provision referred to in subsection (2)
designated grocery retailer means all of the following:
(a)
Foodstuffs North Island Limited, Foodstuffs South Island Limited, and Woolworths New Zealand Limited:
(b)
a person that is designated as a designated grocery retailer by the Governor-General by Order in Council made under section 28C:
(c)
a person that is a successor to a person referred to in paragraph (a):
(d)
a person that is a franchisee, or a transacting shareholder (within the meaning of the Co-operative Companies Act 1996), of a person referred to in paragraph (a), (b), or (c):
(e)
a person that is an interconnected body corporate or associated person (within the meaning of section 47) of a person referred to in paragraph (a), (b), (c), or (d)
exclusivity covenant includes, without limitation, a right of first refusal
grocery product means goods in any of the following product categories: bread, dairy products, eggs or egg products, fruit, vegetables, meat, fish, rice, sugar, manufacturer-packaged food, and medicine other than prescription medicine
retail grocery store means a place at which a material part of the business being carried on is the business of supplying 1 or more categories of grocery products to consumers (for example, a butchery, fishmonger, bakery, or pharmacy).
(5)
A designated grocery retailer has an interest in a covenant—
(a)
if the person is or was a party to the covenant; or
(b)
if the person is or was a party to any contract, arrangement, or understanding that resulted in the giving of the covenant or to the inclusion of the covenant in a lease; or
(c)
if the person required, or is deemed by section 28(6) to have required, the giving of the covenant; or
(d)
if the person gives effect to, carries out, or enforces the terms or provisions of the covenant; or
(e)
if the person takes any action described in section 28(5).
(6)
Subsection (1) does not limit any other provision of this Part.
(7)
If this section applies, the reference in section 61(6) to any lessening in competition that would result, or would be likely to result, includes any lessening that this section provides must be treated as resulting.
Section 28A: inserted, on 30 June 2022, by section 4 of the Commerce (Grocery Sector Covenants) Amendment Act 2022 (2022 No 35).
28B Process for voluntary removal of grocery-related covenant from register of land
[Repealed]Section 28B: repealed, on 30 June 2024, by section 28B(5).
28C Process for designations for purpose of section 28A
(1)
The Governor-General may, on the recommendation of the Minister, make an Order in Council designating a person as a designated grocery retailer for the purpose of section 28A.
(2)
The Minister may recommend to the Governor-General that a person be designated as a designated grocery retailer only after receiving a recommendation from the Commission.
(3)
The Commission may recommend to the Minister that a person be designated as a designated grocery retailer only—
(a)
after consulting the person about the proposed designation (including the Commission’s reasons for proposing to recommend the designation); and
(b)
if the Commission has taken into account the following criteria:
(i)
whether the person carries on, or is likely to carry on, a business of supplying all or a majority of categories of grocery products to consumers; and
(ii)
whether designation of the person as a designated grocery retailer would be likely to promote competitive neutrality (that is, a level playing field) or to otherwise promote competition, having regard to the extent to which the person supplies, or is likely to supply, groceries in competition with 1 or more designated grocery retailers.
(4)
The Commission’s recommendation must advise the Minister whether the Commission considers that those criteria are met.
(5)
In deciding whether to make a recommendation, the Minister may do any of the following:
(a)
accept the Commission’s recommendation if the Minister is satisfied that those criteria are met:
(b)
reject the Commission’s recommendation:
(c)
request that the Commission reconsider any matter (such as an error, an oversight, or competing policy interests):
(d)
make any other decision that the Minister considers is in the public interest.
(6)
The Commission must make the recommendation publicly available as soon as practicable after making it, including a statement of its reasons for making the recommendation.
(7)
An order made under this section is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
| Legislation Act 2019 requirements for secondary legislation made under this section | ||||
| Publication | PCO must publish it on the legislation website and notify it in the Gazette | LA19 s 69(1)(c) | ||
| Presentation | The Minister must present it to the House of Representatives | LA19 s 114 | ||
| Disallowance | It may be disallowed by the House of Representatives | LA19 ss 115, 116 | ||
| This note is not part of the Act. | ||||
Section 28C: inserted, on 30 June 2022, by section 4 of the Commerce (Grocery Sector Covenants) Amendment Act 2022 (2022 No 35).
28D Commission may require designated grocery retailer to supply information about contract, etc, to which section 28A may apply
(1)
For the purpose of assessing compliance with the provisions listed in subsection (2), the Commission may, by written notice, require a designated grocery retailer to—
(a)
supply to the Commission information relating to any contract, arrangement, understanding, or covenant (including any process relating to the negotiation or renegotiation of that contract, arrangement, understanding, or covenant)—
(i)
to which section 28A may apply; or
(ii)
that contains a provision to which section 28A may apply; and
(b)
supply that information within the time and in the manner specified in the notice.
(2)
The provisions are—
(a)
sections 27, 28, 28A, 36, and 47 of this Act; and
(b)
sections 7, 8, 23, and 26B of the Fair Trading Act 1986.
(3)
Part 7 applies to a notice under subsection (1) as if it were a notice given under section 98.
(4)
This section does not limit any of the Commission’s other functions, duties, or powers under this Act or any other legislation.
(5)
In this section, designated grocery retailer has the same meaning as in section 28A.
Section 28D: inserted, on 30 June 2022, by section 4 of the Commerce (Grocery Sector Covenants) Amendment Act 2022 (2022 No 35).
29 Contracts, arrangements, or understandings containing exclusionary provisions prohibited
[Repealed]Section 29: repealed, on 15 August 2017, by section 7 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Cartel provisions
Heading: replaced, on 15 August 2017, by section 8 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
30 Contracts, arrangements, understandings, or covenants containing cartel provisions prohibited
(1)
No person may—
(a)
enter into a contract or arrangement, or arrive at an understanding, that contains a cartel provision; or
(ab)
give, or require the giving of, a covenant that contains a cartel provision; or
(b)
give effect to a cartel provision.
(2)
See section 80 for liability to a pecuniary penalty, and section 82B for criminal liability, for contravention of this section.
Section 30: replaced, on 15 August 2017, by section 8 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 30 heading: replaced, on 5 April 2023, by section 12(1) of the Commerce Amendment Act 2022 (2022 No 11).
Section 30(1)(ab): inserted, on 5 April 2023, by section 12(2) of the Commerce Amendment Act 2022 (2022 No 11).
Section 30(2): inserted, on 8 April 2021, by section 5 of the Commerce (Criminalisation of Cartels) Amendment Act 2019 (2019 No 9).
30A Meaning of cartel provision and related terms
(1)
A cartel provision is a provision, contained in a contract, arrangement, understanding, or covenant, that has the purpose, effect, or likely effect of 1 or more of the following in relation to the supply or acquisition of goods or services in New Zealand:
(a)
price fixing:
(b)
restricting output:
(c)
market allocating.
(2)
In this Act, price fixing means, as between the parties to a contract, arrangement, understanding, or covenant, fixing, controlling, or maintaining, or providing for the fixing, controlling, or maintaining of,—
(a)
the price for goods or services that any 2 or more parties to the contract, arrangement, understanding, or covenant supply or acquire in competition with each other; or
(b)
any discount, allowance, rebate, or credit in relation to goods or services that any 2 or more parties to the contract, arrangement, understanding, or covenant supply or acquire in competition with each other.
(3)
In this Act, restricting output means preventing, restricting, or limiting, or providing for the prevention, restriction, or limitation of,—
(a)
the production or likely production by any party to a contract, arrangement, understanding, or covenant of goods that any 2 or more of the parties to the contract, arrangement, understanding, or covenant supply or acquire in competition with each other; or
(b)
the capacity or likely capacity of any party to a contract, arrangement, understanding, or covenant to supply services that any 2 or more parties to the contract, arrangement, understanding, or covenant supply or acquire in competition with each other; or
(c)
the supply or likely supply of goods or services that any 2 or more parties to a contract, arrangement, understanding, or covenant supply in competition with each other; or
(d)
the acquisition or likely acquisition of goods or services that any 2 or more parties to a contract, arrangement, understanding, or covenant acquire in competition with each other.
(4)
In this Act, market allocating means allocating between any 2 or more parties to a contract, arrangement, understanding, or covenant, or providing for such an allocation of, either or both of the following:
(a)
the persons or classes of persons to or from whom the parties supply or acquire goods or services in competition with each other:
(b)
the geographic areas in which the parties supply or acquire goods or services in competition with each other.
Section 30A: inserted, on 15 August 2017, by section 8 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 30A(1): amended, on 5 April 2023, by section 13 of the Commerce Amendment Act 2022 (2022 No 11).
Section 30A(2): amended, on 5 April 2023, by section 13 of the Commerce Amendment Act 2022 (2022 No 11).
Section 30A(2)(a): amended, on 5 April 2023, by section 13 of the Commerce Amendment Act 2022 (2022 No 11).
Section 30A(2)(b): amended, on 5 April 2023, by section 13 of the Commerce Amendment Act 2022 (2022 No 11).
Section 30A(3)(a): amended, on 5 April 2023, by section 13 of the Commerce Amendment Act 2022 (2022 No 11).
Section 30A(3)(b): amended, on 5 April 2023, by section 13 of the Commerce Amendment Act 2022 (2022 No 11).
Section 30A(3)(c): amended, on 5 April 2023, by section 13 of the Commerce Amendment Act 2022 (2022 No 11).
Section 30A(3)(d): amended, on 5 April 2023, by section 13 of the Commerce Amendment Act 2022 (2022 No 11).
Section 30A(4): amended, on 5 April 2023, by section 13 of the Commerce Amendment Act 2022 (2022 No 11).
30B Additional interpretation relating to cartel provisions
In this Act, in relation to a cartel provision,—
(a)
if a person is a party to a contract, arrangement, understanding, or covenant, each of the person’s interconnected bodies corporate is taken to be a party to the contract, arrangement, understanding, or covenant; and
(b)
if a person (person A) or any of person A’s interconnected bodies corporate supplies or acquires goods or services in competition with another person (person B) or any of person B’s interconnected bodies corporate, person A is taken to supply or acquire those goods or services in competition with person B; and
(c)
a reference to persons in competition with each other for the supply or acquisition of goods or services includes a reference to—
(i)
persons who are, or are likely to be, in competition with each other in relation to the supply or acquisition of those goods or services; and
(ii)
persons who, but for a cartel provision relating to those goods or services, would, or would be likely to, be in competition with each other in relation to the supply or acquisition of those goods or services.
Section 30B: inserted, on 15 August 2017, by section 8 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 30B(a): amended, on 5 April 2023, by section 14 of the Commerce Amendment Act 2022 (2022 No 11).
30C Cartel provisions generally unenforceable
(1)
No cartel provision is enforceable.
(2)
However, nothing in subsection (1) affects the enforceability of a cartel provision in—
(a)
a contract or covenant to which section 31 applies; or
(b)
a contract to which section 32, 33, 44A(4) or (5), or 44B applies.
Section 30C: inserted, on 15 August 2017, by section 8 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 30C(2): replaced, on 5 April 2023, by section 15 of the Commerce Amendment Act 2022 (2022 No 11).
31 Exception for collaborative activity
Exception for entering into cartel provision
(1)
Nothing in section 30(1)(a) applies to a person in relation to a cartel provision if, at the time of entering into or arriving at the contract, arrangement, or understanding that contains the provision,—
(a)
the person and 1 or more other parties to the contract, arrangement, or understanding are involved in a collaborative activity; and
(b)
the cartel provision is reasonably necessary for the purpose of the collaborative activity.
Exception for giving, or requiring the giving of, covenant containing cartel provision
(1A)
Nothing in section 30(1)(ab) applies to a person in relation to a cartel provision if, at the time of giving, or requiring the giving of, a covenant that contains the provision,—
(a)
the person and 1 or more other parties to the covenant are involved in a collaborative activity; and
(b)
the cartel provision is reasonably necessary for the purpose of the collaborative activity.
Exceptions for giving effect to cartel provision
(2)
Nothing in section 30(1)(b) applies to a person in relation to a cartel provision if, at the time of giving effect to the cartel provision,—
(a)
the person and 1 or more other parties to the contract, arrangement, understanding, or covenant that contains the provision are involved in a collaborative activity; and
(b)
the cartel provision is reasonably necessary for the purpose of the collaborative activity.
(3)
Nothing in section 30(1)(b) applies to a person in relation to a cartel provision that constitutes a restraint of trade if—
(a)
the person and 1 or more other parties to the contract, arrangement, understanding, or covenant that contains the provision were involved in a collaborative activity that has ended; and
(b)
the cartel provision was reasonably necessary for the purpose of the collaborative activity; and
(c)
the collaborative activity did not end because the lessening of competition between any 2 or more parties became its dominant purpose.
Meaning of collaborative activity
(4)
In this Act, collaborative activity means an enterprise, venture, or other activity, in trade, that—
(a)
is carried on in co-operation by 2 or more persons; and
(b)
is not carried on for the dominant purpose of lessening competition between any 2 or more of the parties.
(5)
The purpose referred to in subsection (4)(b) may be inferred from the conduct of any relevant person or from any other relevant circumstance.
Section 31: replaced, on 15 August 2017, by section 8 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 31(1): amended, on 8 April 2021, by section 6(1) of the Commerce (Criminalisation of Cartels) Amendment Act 2019 (2019 No 9).
Section 31(1A) heading: inserted, on 5 April 2023, by section 16(1) of the Commerce Amendment Act 2022 (2022 No 11).
Section 31(1A): inserted, on 5 April 2023, by section 16(1) of the Commerce Amendment Act 2022 (2022 No 11).
Section 31(2): amended, on 8 April 2021, by section 6(2) of the Commerce (Criminalisation of Cartels) Amendment Act 2019 (2019 No 9).
Section 31(2)(a): amended, on 5 April 2023, by section 16(2) of the Commerce Amendment Act 2022 (2022 No 11).
Section 31(3): amended, on 8 April 2021, by section 6(3) of the Commerce (Criminalisation of Cartels) Amendment Act 2019 (2019 No 9).
Section 31(3)(a): amended, on 5 April 2023, by section 16(3) of the Commerce Amendment Act 2022 (2022 No 11).
Section 31(3)(a): amended, on 26 October 2018, by section 19 of the Commerce Amendment Act 2018 (2018 No 42).
32 Exception for vertical supply contracts
(1)
Nothing in section 30 applies to a person in relation to a cartel provision in a contract, if—
(a)
the contract is entered into between a supplier or likely supplier of goods or services and a customer or likely customer of that supplier; and
(b)
the cartel provision—
(i)
relates to the supply or likely supply of the goods or services to the customer or likely customer, including to the maximum price at which the customer or likely customer may resupply the goods or services; and
(ii)
does not have the dominant purpose of lessening competition between any 2 or more of the parties to the contract.
(2)
The purpose referred to in subsection (1)(b)(ii) may be inferred from the conduct of any relevant person or from any other relevant circumstance.
Section 32: replaced, on 15 August 2017, by section 8 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
33 Exception for joint buying and promotion agreements
A provision in a contract, arrangement, or understanding does not have the purpose, effect, or likely effect of price fixing if the provision—
(a)
relates to the price for goods or services to be collectively acquired, whether directly or indirectly, by some or all of the parties to the contract, arrangement, or understanding; or
(b)
provides for joint advertising of the price for the resupply of goods or services acquired in accordance with paragraph (a); or
(c)
provides for a collective negotiation of the price for goods or services followed by individual purchasing at the collectively negotiated price; or
(d)
provides for an intermediary to take title to goods and resell or resupply them to another party to the contract, arrangement, or understanding.
Section 33: replaced, on 15 August 2017, by section 8 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
34 Certain provisions of covenants with respect to prices deemed to substantially lessen competition
[Repealed]Section 34: repealed, on 15 August 2017, by section 8 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Practices substantially lessening competition conditional upon authorisation[Repealed]
Heading: repealed, on 15 August 2017, by section 8 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
35 Contracts or covenants subject to authorisation not prohibited under certain conditions
[Repealed]Section 35: repealed, on 26 May 2001, by section 8 of the Commerce Amendment Act 2001 (2001 No 32).
Misuse of market power
Heading: replaced, on 5 April 2023, by section 17 of the Commerce Amendment Act 2022 (2022 No 11).
36 Misuse of market power
(1)
A person that has a substantial degree of power in a market must not engage in conduct that has the purpose, or has or is likely to have the effect, of substantially lessening competition in—
(a)
that market; or
(b)
any other market in which the person, or an interconnected person,—
(i)
supplies or acquires, or is likely to supply or acquire, goods or services; or
(ii)
supplies or acquires, or is likely to supply or acquire, goods or services indirectly through 1 or more other persons.
(2)
In this section, a person has a substantial degree of power in a market if—
(a)
the person has a substantial degree of power in the market; or
(b)
the person, together with 1 or more interconnected persons, has a substantial degree of power in the market; or
(c)
1 or more interconnected persons of the person have a substantial degree of power in the market; or
(d)
2 or more interconnected persons together have a substantial degree of power in the market.
Compare: Competition and Consumer Act 2010 s 46 (Aust)
Section 36: replaced, on 5 April 2023, by section 17 of the Commerce Amendment Act 2022 (2022 No 11).
36A Misuse of market power in trans-Tasman markets
(1)
Subsection (2) applies if 1 or more of the following applies to a person:
(a)
the person has a substantial degree of power in a market in New Zealand:
(b)
the person has a substantial degree of power in a market in Australia:
(c)
the person has a substantial degree of power in a market in New Zealand and Australia.
(2)
The person must not engage in conduct that has the purpose, or has or is likely to have the effect, of substantially lessening competition in—
(a)
a market in New Zealand in which the person has a substantial degree of power (if any) and that is not a market exclusively for services; or
(b)
any other market in New Zealand, not being a market exclusively for services, in which the person, or an interconnected person,—
(i)
supplies or acquires, or is likely to supply or acquire, goods or services; or
(ii)
supplies or acquires, or is likely to supply or acquire, goods or services indirectly through 1 or more other persons.
(3)
In this section, a person has a substantial degree of power in a market if—
(a)
the person has a substantial degree of power in the market; or
(b)
the person, together with 1 or more interconnected persons, has a substantial degree of power in the market; or
(c)
1 or more interconnected persons of the person have a substantial degree of power in the market; or
(d)
2 or more interconnected persons together have a substantial degree of power in the market.
(4)
In this section, market means a market 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.
(5)
Section 36A does not limit section 36.
Compare: Competition and Consumer Act 2010 s 46A (Aust)
Section 36A: replaced, on 5 April 2023, by section 17 of the Commerce Amendment Act 2022 (2022 No 11).
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 conduct of any relevant person or from any other relevant circumstances.
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)
No person shall engage in the practice of resale price maintenance.
(2)
For the purposes of this section, a person engages in the practice of resale price maintenance if that person (in this section referred to as the supplier) does any of the acts referred to in subsection (3).
(3)
The acts referred to for the purposes of subsection (2) are—
(a)
the supplier making it known to another person that the supplier will not supply goods to the other person unless the other person agrees not to sell those goods at a price less than a price specified by the supplier:
(b)
the supplier inducing, or attempting to induce, another person not to sell, at a price less than a price specified by the supplier, goods supplied to the other person by the supplier or by a third person who, directly or indirectly, 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 one of the terms is or would be that the other person will not sell the goods at a price less than a price specified, or that would be specified, by the supplier:
(d)
the supplier withholding the supply of goods to another 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)
the supplier withholding the supply of goods to another 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, that the price below which those goods are not to be sold is a price specified by another person in respect of those goods, or in respect of goods of a like description, that price shall be deemed to have been specified, in respect of the first-mentioned goods, by the supplier:
(b)
where a set form, method, or formula is specified by or on behalf of the supplier and a price may be ascertained 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, that the price below which those goods are not to be sold is a price ascertained by calculation from or by reference to a set form, method, or formula specified by another person in respect of those goods, or in respect of goods of a like description, that price shall be deemed to have been specified, in respect of the first-mentioned goods, by the supplier:
(d)
where the supplier makes a statement to another person of a price that is likely to be understood by that person as the price below which goods are not to be sold, that price 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 arrangement with, the supplier shall be deemed to have 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.
Section 37(2): amended, on 15 August 2017, by section 32(2)(d) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
38 Resale price maintenance by others prohibited
(1)
No person (in this section referred to as the third party) shall—
(a)
make it known to another person that the third party proposes to engage in conduct, whether alone or in concert 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, that will 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 less than a price specified by the third party.
(2)
For the purposes of subsection (1),—
(a)
where the third party makes it known, in respect of any goods, that the price below which those goods are not to be sold is a price specified by another person in respect of those goods, or in respect of goods of a like description, that price shall be deemed to have been specified in respect of the first-mentioned goods, by the third party:
(b)
where a set form, method, or formula is specified by or on behalf of the third party and a price may be ascertained by calculation from, or by reference to, that set form, method, or formula, that price shall be deemed to have been specified by the third party:
(c)
where the third party makes it known, in respect of any goods, that the price below which those goods are not to be sold is a price ascertained by calculation from or by reference to a set form, method, or formula specified by another person in respect of those goods, or in respect of goods of a like description, that price shall be deemed to have been specified, in respect of the first-mentioned goods, by the third party:
(d)
where the third party makes a statement to another person of a price that is likely to be understood by that person as the price below which goods are not to be sold, that price shall be deemed to have been specified by the 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)
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.
39 Recommended prices
For the purposes of section 37(3)(b), a supplier of any goods is not to be taken as inducing, or attempting to induce, another person not to sell those goods at a price less than a price specified by the supplier merely because—
(a)
a statement of a price is applied or used in relation to the goods or is applied to a covering, label, reel, or thing if the statement is preceded by the words “recommended price”; or
(b)
the supplier has given notification in writing to the other person (not being a notification in the form of a statement applied to the goods or to any covering, label, reel, or thing as mentioned in paragraph (a)) of the price that the supplier recommends as appropriate for the sale of those goods, if the notification, and each writing that refers, whether expressly or by implication, to the notification, includes a statement to the effect that the price 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
For the purposes of section 37(3)(d) and (e) , the supplier shall be deemed to withhold the supply of goods to another person if—
(a)
the supplier refuses or fails to supply those goods to, 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 respect of time, method, or place of delivery, or otherwise, 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)
the acquisition of goods shall be deemed to be prevented 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 section 40; and
(b)
during a period ending immediately before the supplier 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)
during a period of 6 months immediately before the supplier so acted, the supplier became aware of a matter or circumstance capable of constituting a reason referred to in section 37(3)(d) or (e),—
it shall be presumed, in the absence of evidence to the contrary, that the supplier so acted on account of that matter.
(2)
Nothing in subsection (1) applies in respect of terms imposed by a supplier that are disadvantageous or treatment that is less favourable than the supplier accords other persons if the terms or treatment consists only of a requirement by the supplier as to the time at which, or the form in which, payment was to be made or as to the giving of security to secure payment.
Compare: Trade Practices Act 1974 s 100(1), (2) (Aust)
Section 42(1)(c): amended, on 15 August 2017, by section 32(2)(d) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Exceptions to Part 2
Heading: inserted, on 14 August 2019, by section 9 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
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 thing, notwithstanding that the act, matter, or thing requires or may be subject to approval or authorisation by a Minister of the Crown, statutory body or a person holding any particular office, or, in the case of a rule made or an act, matter, or thing done pursuant to any enactment, approval or authorisation by Order in Council.
(3)
No act, matter, or thing authorised under section 7(2)(i) of the Sharebrokers Amendment Act 1981 or section 70(1)(n) of the Real Estate Agents Act 1976 as enacted immediately before the commencement of this Act, shall be taken to be specifically authorised under subsection (1).
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 whom is a body corporate in so far as it contains a provision in relation to the terms of the partnership or the conduct of the partnership business or in relation to competition between the partnership and a party to the contract, arrangement, or understanding while that party is, or after that party ceases to be, a partner:
(b)
[Repealed](c)
to the entering into of a contract of service or a contract for the provision of services in so far as it contains a provision by which a person, not being a body corporate, agrees to accept restrictions as to the work, whether as an employee or otherwise, in which that person may engage 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 obliging a person to comply with or apply—
(i)
a New Zealand Standard relating to dimension, design, quality, or performance; or
(ii)
a standard of dimension, design, quality, or performance prepared or approved 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 provision that relates to the remuneration, conditions of 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 provision that relates exclusively to the export of goods from New Zealand or exclusively to the supply of services wholly outside New Zealand, if full and accurate particulars of the provision (not including particulars of prices for goods or services but including particulars of any method of fixing, controlling, or maintaining such prices) were furnished to the Commission before the expiration of 15 working days after the date on which the contract or arrangement was made or the understanding was arrived at, or 60 working days after the commencement of this Act, whichever is the later:
(h)
to any act done, otherwise than in trade, in concert by users of goods or services against the suppliers of those 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)
Nothing in this Part (except sections 36 and 36A) applies to—
(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)
[Repealed](3)
[Repealed]Compare: Trade Practices Act 1974 s 51(2), (2A) (Aust)
Section 44(1)(b): repealed, on 26 May 2001, by section 10(1) of the Commerce Amendment Act 2001 (2001 No 32).
Section 44(1)(e): replaced, on 1 March 2016, by section 45(1) of the Standards and Accreditation Act 2015 (2015 No 91).
Section 44(1A): inserted, on 26 May 2001, by section 10(2) of the Commerce Amendment Act 2001 (2001 No 32).
Section 44(2): repealed, on 14 August 2019, by section 34 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 44(3): repealed, on 14 August 2019, by section 34 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
44A Exceptions in relation to international liner shipping services
(1)
Nothing in section 27(1) applies to a person in relation to a provision of a contract, arrangement, or understanding if, at the time of entering into or arriving at the contract, arrangement, or understanding, the circumstances in subsection (6) apply.
(2)
Nothing in section 27(2) applies to a person in relation to a provision of a contract, arrangement, or understanding if, at the time of giving effect to the provision, the circumstances in subsection (6) apply.
(3)
Nothing in section 27(4) affects the enforceability of a provision in any contract to which subsection (1) or (2) applies.
(4)
Nothing in section 30(1)(a) applies to a person in relation to a cartel provision that has the effect, or likely effect, of restricting output or market allocating if, at the time of entering into or arriving at the contract, arrangement, or understanding that contains the provision, the circumstances in subsection (6) apply.
(5)
Nothing in section 30(1)(b) applies to a person in relation to a cartel provision that has the effect, or likely effect, of restricting output or market allocating if, at the time of giving effect to the provision, the circumstances in subsection (6) apply.
(6)
The circumstances are that—
(a)
the person and all other parties to the contract, arrangement, or understanding that contains the provision are supplying an international liner shipping service in co-operation with each other; and
(b)
the co-operation improves the service supplied to owners or consignors of goods carried at sea; and
(c)
the provision relates to—
(i)
a specified activity carried out for the purposes of the co-operation; or
(ii)
an activity ancillary to a specified activity that is reasonably necessary for the purposes of the co-operation.
(7)
For the purposes of subsection (6)(a), parties to the contract, arrangement, or understanding excludes persons who are parties only because section 30B(a) applies.
(8)
In this section,—
cartel provision means a cartel provision in a contract, arrangement, or understanding
specified activity means any of the following:
(a)
the co-ordination of schedules and the determination of port calls:
(b)
the exchange, sale, hire, or lease (including the sublease) of space on a ship:
(c)
the pooling of ships to operate a network:
(d)
the sharing or exchanging of equipment such as containers:
(e)
capacity adjustments in response to fluctuations in supply and demand for international liner shipping services.
Section 44A: inserted, on 14 August 2019, by section 10 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 44A(4): amended, on 8 April 2021, by section 7(1) of the Commerce (Criminalisation of Cartels) Amendment Act 2019 (2019 No 9).
Section 44A(5): amended, on 8 April 2021, by section 7(2) of the Commerce (Criminalisation of Cartels) Amendment Act 2019 (2019 No 9).
Section 44A(8) cartel provision: inserted, on 5 April 2023, by section 18 of the Commerce Amendment Act 2022 (2022 No 11).
44B Further exception in relation to international liner shipping services (price fixing in relation to space on ship)
(1)
Nothing in section 30(1)(a) applies to a person in relation to a cartel provision that has the effect, or likely effect, of price fixing if, at the time of entering into or arriving at the contract, arrangement, or understanding that contains the provision, the circumstances in subsection (3) apply.
(2)
Nothing in section 30(1)(b) applies to a person in relation to a cartel provision that has the effect, or likely effect, of price fixing if, at the time of giving effect to the provision, the circumstances in subsection (3) apply.
(3)
The circumstances are that—
(a)
the person and all other parties to the contract, arrangement, or understanding that contains the cartel provision are supplying an international liner shipping service in co-operation with each other; and
(b)
the co-operation improves the service supplied to owners or consignors of goods carried at sea; and
(c)
the provision relates to the exchange, sale, hire, or lease (including the sublease) of space on a ship between the person and 1 or more parties to the contract, arrangement, or understanding; and
(d)
the exchange, sale, hire, or lease (including the sublease) is carried out for the purposes of the co-operation.
(4)
For the purposes of subsection (3)(a), parties to the contract, arrangement, or understanding excludes persons who are parties only because section 30B(a) applies.
(5)
In this section, cartel provision means a cartel provision in a contract, arrangement, or understanding.
Section 44B: inserted, on 14 August 2019, by section 10 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 44B(1): amended, on 8 April 2021, by section 8(1) of the Commerce (Criminalisation of Cartels) Amendment Act 2019 (2019 No 9).
Section 44B(2): amended, on 8 April 2021, by section 8(2) of the Commerce (Criminalisation of Cartels) Amendment Act 2019 (2019 No 9).
Section 44B(5): inserted, on 5 April 2023, by section 19 of the Commerce Amendment Act 2022 (2022 No 11).
45 Exceptions in relation to intellectual property rights
[Repealed]Section 45: repealed, on 5 April 2023, by section 20 of the Commerce Amendment Act 2022 (2022 No 11).
46 Saving in respect of business acquisitions
Nothing in this Part applies—
(a)
to any of the following to the extent that the contract, arrangement, understanding, or covenant provides for the acquisition or disposition of assets of a business or shares:
(i)
entering into a contract or an arrangement:
(ii)
arriving at an understanding:
(iii)
giving, or requiring the giving of, a covenant; or
(b)
to any act done to give effect to a provision of a contract, arrangement, understanding, or covenant 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).
Section 46(a): replaced, on 5 April 2023, by section 21(1) of the Commerce Amendment Act 2022 (2022 No 11).
Section 46(b): amended, on 5 April 2023, by section 21(2) of the Commerce Amendment Act 2022 (2022 No 11).
Part 3 Business acquisitions
Part 3: substituted, on 1 January 1991, by section 18 of the Commerce Amendment Act 1990 (1990 No 41).
47 Certain acquisitions prohibited
(1)
A person must not acquire assets of a business or shares if the acquisition would have, or would be likely to have, the effect of substantially lessening competition in a market.
(2)
For the purposes of this section, a reference to a person includes 2 or more persons that are interconnected or associated.
(3)
For the purposes of this section, a person is associated with another person if that person is able, whether directly or indirectly, to exert a substantial degree of influence over the activities of the other.
(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)
those persons are in competition in the same market; 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).
47A Declaration relating to acquisition by overseas person
(1)
The Commission may apply to the High Court for a declaration under this section if an overseas person acquires, whether directly or indirectly, a controlling interest in a New Zealand body corporate through the acquisition outside New Zealand of the assets of a business or shares.
(2)
The High Court may make a declaration that it is satisfied that—
(a)
the overseas person has acquired a controlling interest in a New Zealand body corporate through the acquisition outside New Zealand of the assets of a business or shares; and
(b)
the acquisition of that controlling interest has, or is likely to have, the effect of substantially lessening competition in a market in New Zealand.
(3)
A declaration may not be made in respect of an acquisition if—
(a)
the application for the declaration is made more than 12 months after the date of the acquisition; or
(b)
the Commission has given a clearance, or granted an authorisation, under Part 5 in respect of the acquisition (see section 69).
(4)
Nothing in this section limits the Commission’s functions or powers under any other provision of this Act.
(5)
In this section and in sections 47B to 47D,—
controlling interest means, in the context of an overseas person having a controlling interest in a New Zealand body corporate, that the overseas person—
(a)
controls the composition of the board of the body corporate; or
(b)
is in a position to exercise, or control the exercise of, more than 20% of the maximum number of votes that can be exercised at a meeting of the body corporate; or
(c)
holds more than 20% of the issued shares of the body corporate, other than shares that carry no right to participate beyond an entitlement to a specified amount in a distribution of either profits or capital; or
(d)
is entitled to receive more than 20% of every dividend paid on shares issued by the body corporate, other than shares that carry no right to participate beyond an entitlement to a specified amount in a distribution of either profits or capital; or
(e)
is the holding company (as defined in section 5(2) of the Companies Act 1993) of the body corporate; or
(f)
holds assets in circumstances where the holding of those assets results in the overseas person having effective control of the body corporate
New Zealand body corporate means a body corporate (whether incorporated overseas or in New Zealand) that carries on business in New Zealand
overseas person means a person, whether a body corporate or otherwise, that is neither resident nor carrying on business in New Zealand.
Section 47A: inserted, on 15 August 2017, by section 11 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
47B Orders against New Zealand bodies corporate following declaration under section 47A
(1)
The Commission may apply to the High Court for an order under this section in respect of a New Zealand body corporate—
(a)
at the same time as the Commission applies for a declaration under section 47A in relation to an overseas person who has a controlling interest in the body corporate; or
(b)
at any time while that application is pending or after the declaration has been made.
(2)
If the High Court makes a declaration under section 47A in relation to an overseas person, it may make an order under this section requiring any New Zealand body corporate in which the person has a controlling interest to—
(a)
cease carrying on business in New Zealand, in the market to which the declaration relates, no later than 6 months after the date of the declaration or any longer period specified by the court; or
(b)
dispose of shares or other assets specified by the court; or
(c)
take any other action (including disposing of shares or other assets) that the court considers, in all the circumstances, is consistent with the purpose of this Act.
(3)
Contravention of an order made under this section is a contravention of this section.
Section 47B: inserted, on 15 August 2017, by section 11 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
47C Application by Commission for declaration or order
(1)
An application for a declaration under section 47A, or for an order under section 47B, may be made only by the Commission.
(2)
On making an application under section 47A, the Commission must give notice of the application to the relevant overseas person and New Zealand body corporate.
(3)
On making an application under section 47B, the Commission must give notice to any New Zealand body corporate to which the application relates.
Section 47C: inserted, on 15 August 2017, by section 11 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
47D Revocation and variation of declarations and orders
(1)
The Commission, or the overseas person or New Zealand body corporate to which a declaration made under section 47A relates, may apply to the High Court to have the declaration revoked.
(2)
The Commission, or the overseas person or any New Zealand body corporate to which an order under section 47B relates, may apply to the High Court to have the order revoked or varied.
(3)
The High Court may, if it is satisfied that there has been a material change of circumstances, do either or both of the following:
(a)
revoke a declaration:
(b)
revoke or vary any order.
Section 47D: inserted, on 15 August 2017, by section 11 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
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 3A Competition studies
Part 3A: inserted, on 26 October 2018, by section 4 of the Commerce Amendment Act 2018 (2018 No 42).
48 Interpretation
In this Part, unless the context otherwise requires,—
competition report means a report prepared by the Commission under section 51B
competition study means a study of any factors that may affect competition for the supply or acquisition of goods or services
organisation means any of the following:
(a)
an organisation named in Part 2 of Schedule 1 of the Ombudsmen Act 1975:
(b)
an organisation named in Schedule 1 of the Official Information Act 1982:
(c)
the Auditor-General.
Section 48: inserted, on 26 October 2018, by section 4 of the Commerce Amendment Act 2018 (2018 No 42).
Section 48 department: repealed, on 5 May 2022, by section 22 of the Commerce Amendment Act 2022 (2022 No 11).
49 Functions of Commission under this Part
The functions of the Commission under this Act include carrying out competition studies, and preparing competition reports, under this Part.
Section 49: inserted, on 26 October 2018, by section 4 of the Commerce Amendment Act 2018 (2018 No 42).
50 Commission may carry out competition study
(1)
The Commission may carry out a competition study if the Commission considers it to be in the public interest to do so.
(2)
Before carrying out a competition study, the Commission must, by notice in the Gazette,—
(a)
prescribe the terms of reference for the study; and
(b)
specify the date by which the Commission will make the final competition report for the study publicly available.
(3)
A copy of the notice must be made publicly available.
(4)
The Commission may amend the notice in the manner set out in subsections (1) to (3).
(5)
The Commission may revoke the notice by further notice in the Gazette.
Section 50: inserted, on 26 October 2018, by section 4 of the Commerce Amendment Act 2018 (2018 No 42).
51 Minister may require Commission to carry out competition study
(1)
The Minister may, by notice in the Gazette, require the Commission to carry out a competition study if the Minister considers it to be in the public interest to do so.
(2)
The notice must—
(a)
prescribe the terms of reference for the study; and
(b)
specify the date by which the Commission must make the final report for the study publicly available.
(3)
A copy of the notice must be made publicly available.
(4)
Before issuing the notice, the Minister must consult the Commission on a draft of the notice.
(5)
The Minister may amend the notice in the manner set out in subsections (1) to (4).
(6)
The Minister, having first consulted with the Commission, may revoke the notice by further notice in the Gazette.
Section 51: inserted, on 26 October 2018, by section 4 of the Commerce Amendment Act 2018 (2018 No 42).
51A Competition study terms of reference
(1)
The terms of reference for a competition study must—
(a)
specify the goods or services, or both, to which the study relates; and
(b)
describe the scope of the study.
(2)
If the study is required by the Minister, the terms of reference may require the Commission to consult any of the following as part of the study:
(a)
public service agencies:
(b)
organisations:
(c)
persons:
(d)
classes of persons.
(3)
If the Commission is carrying out the study on its own initiative, the terms of reference may name any of the following that it intends to consult as part of the study:
(a)
public service agencies:
(b)
organisations:
(c)
persons:
(d)
classes of persons.
(4)
The Commission—
(a)
must carry out the competition study in accordance with the terms of reference; and
(b)
may exercise its discretion in relation to any ancillary matters that are related to, but not explicitly covered by, the terms of reference.
Section 51A: inserted, on 26 October 2018, by section 4 of the Commerce Amendment Act 2018 (2018 No 42).
Section 51A(2)(a): amended, on 5 May 2022, by section 23 of the Commerce Amendment Act 2022 (2022 No 11).
Section 51A(3)(a): amended, on 5 May 2022, by section 23 of the Commerce Amendment Act 2022 (2022 No 11).
51B Preparation of competition report
(1)
The Commission must prepare a competition report that records its findings from the competition study.
(2)
The Commission may make recommendations in the report but it is not required to do so.
(3)
The recommendations may, without limitation, include 1 or more of the following:
(a)
changes to legislation or other instruments:
(b)
changes to the policies or practices of central or local government:
(c)
changes to the policies or practices of a person or an organisation responsible for the oversight or regulation of a specified industry:
(d)
changes to the amount or type of information made available by a person or an organisation in relation to a specified industry:
(e)
that a person or an organisation research or monitor a specified matter:
(f)
that persons within a specified industry change their behaviour.
Section 51B: inserted, on 26 October 2018, by section 4 of the Commerce Amendment Act 2018 (2018 No 42).
51C Consultation on draft competition report
(1)
Before a competition report is finalised, the Commission must—
(a)
make a draft report publicly available; and
(b)
allow a reasonable time for comments on the draft.
(2)
In preparing its final report, the Commission must have regard to any comments received on the draft report within the time allowed.
Section 51C: inserted, on 26 October 2018, by section 4 of the Commerce Amendment Act 2018 (2018 No 42).
51D Publication and status of competition report
(1)
The Commission must—
(a)
provide the final competition report to the Minister; and
(b)
at least 5 working days later, make the final competition report publicly available.
(2)
To avoid doubt, a competition report is not a determination of the Commission.
Section 51D: inserted, on 26 October 2018, by section 4 of the Commerce Amendment Act 2018 (2018 No 42).
51E Minister must respond to competition report
The Minister must respond to the final competition report within a reasonable time after the report is made publicly available.
Section 51E: inserted, on 26 October 2018, by section 4 of the Commerce Amendment Act 2018 (2018 No 42).
Part 4 Regulated goods or services
Part 4: substituted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
Subpart 1—Preliminary provisions
Subpart 1 heading: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
52 Overview of Part
This Part provides for the regulation of the price and quality of goods or services in markets where there is little or no competition 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 promoting outcomes that are consistent with outcomes produced in competitive markets such that suppliers of 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)
share with consumers the benefits of efficiency gains in the supply of the regulated goods or services, 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)
(2)
The different types of regulation under this Part (except for water services) are as follows:
(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 suppliers are required to negotiate with other parties on 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 may seek a customised price-quality path instead (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).
(2A)
The different types of regulation under this Part for water services are as follows:
(a)
information disclosure regulation (as referred to in subsection (2)(a)):
(b)
revenue threshold regulation, under which the Commission sets minimum or maximum revenue thresholds (or both) for 1 or more regulated suppliers (see Part 3 of Schedule 7):
(c)
quality regulation, under which the Commission sets a quality path for 1 or more regulated suppliers (see Part 4 of Schedule 7):
(d)
performance requirement regulation, under which the Commission sets performance requirements for 1 or more regulated suppliers (see Part 5 of Schedule 7):
(e)
price-quality regulation, under which the Commission sets a price-quality path for 1 or more regulated suppliers (see Part 6 of Schedule 7).
(3)
Regulation of the following services is dealt with by subparts 9 to 12:
(a)
electricity lines services (subpart 9):
(b)
gas pipeline services (subpart 10):
(c)
services at certain airports (subpart 11):
(d)
water services (subpart 12 and Schedule 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).
Section 52B(1)(a): amended, on 27 August 2025, by section 9(1) of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Section 52B(2): amended, on 27 August 2025, by section 9(2) of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Section 52B(2A): inserted, on 27 August 2025, by section 9(3) of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Section 52B(3): amended, on 27 August 2025, by section 9(4) of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Section 52B(3)(d): inserted, on 27 August 2025, by section 9(5) of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
52C Interpretation
In this Part, unless the context otherwise requires,—
claw-back has the meaning given to it by section 52D
consumer (other than in sections 54C, 54D, and 55A, subpart 12, and Schedule 7) means a person that consumes or acquires regulated goods or services
information disclosure requirement means a requirement that applies to a supplier of goods or services that are subject to information disclosure regulation, and is specified in a section 52P determination
input methodology means a description of any methodology, process, rule, or matter that includes any of the matters listed in section 52T (or clause 31 of Schedule 7) and that is published as referred to in section 52W; and, in relation to particular goods or services, means any input methodology, or all input methodologies, that relate to the supply, or to suppliers, of those goods or services
inquiry means,—
(a)
for the purposes of subpart 11, an inquiry by the Commission into the regulation of specified airport services that is carried out in accordance with sections 56F to 56H; and
(b)
for all other purposes, an inquiry by the Commission that is 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
publicly disclose, in relation to information required to be disclosed 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
regulated goods or services means goods or services that are declared to be regulated—
(a)
by Order in Council made under section 52N or 57L; or
(b)
by any of subparts 9 to 12
regulated supplier—
(a)
means a person to whom a section 52P determination applies in relation to particular goods or services; or
(b)
in relation to water services, has the meaning set out in clause 2(1) of Schedule 7
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, in relation to particular goods or services, means every section 52P determination relevant to the regulation of those goods or services
water services means any of the following (as defined in section 57A(1)):
(a)
water supply services:
(b)
wastewater services:
(c)
stormwater services.
Section 52C: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
Section 52C consumer: amended, on 27 August 2025, by section 10(1) of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Section 52C input methodology: amended, on 27 August 2025, by section 10(2) of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Section 52C input methodology: amended, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
Section 52C inquiry: replaced, on 26 October 2018, by section 5(1) of the Commerce Amendment Act 2018 (2018 No 42).
Section 52C publicly available: repealed, on 26 October 2018, by section 5(2) of the Commerce Amendment Act 2018 (2018 No 42).
Section 52C regulated goods or services paragraph (a): amended, on 27 August 2025, by section 10(3) of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Section 52C regulated goods or services paragraph (b): amended, on 27 August 2025, by section 10(4) of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Section 52C regulated supplier: replaced, on 27 August 2025, by section 10(5) of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Section 52C water services: inserted, on 27 August 2025, by section 10(6) of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
52D Meaning and application of claw-back
(1)
A reference to the Commission applying claw-back is a reference 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)
allowing a supplier to recover some or all of any shortfall in its revenues that occurred under the prices previously 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 over time in order to minimise undue financial hardship to the 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
Subpart 2: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
52E Overview of process if regulation imposed on goods or services
(1)
The process for imposing regulation under this subpart on particular goods or services involves the following steps:
(a)
the Commission holds an inquiry into whether, and if so how, to regulate the goods or services, and then makes a recommendation to the Minister under section 52K:
(b)
the Minister considers the Commission’s recommendation and decides whether or not to recommend to the Governor-General that regulation be imposed and, if so, 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 Commission 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, every regulated supplier of those goods or services must comply with—
(a)
the requirements of this Part relating to that type of regulation; and
(b)
every section 52P determination applying to the supplier; and
(c)
every input methodology relating to the supply of water services that is not specified in a section 52P determination (see clause 30(1)(b) of Schedule 7) and that applies to the regulated supplier.
(2)
Sections 86 to 87C (which relate to offences and civil proceedings relating to contraventions of this Part) apply to a regulated supplier on and from the date on which the supplier is obliged to comply with a relevant section 52P determination.
(3)
The Commission is entitled to exercise any of its powers under this Act for the purpose of monitoring compliance by regulated 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).
Section 52F(1)(c): inserted, on 21 August 2025, by section 11 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
52G When goods or services may be regulated
(1)
Goods or services may be regulated under this Part only if—
(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)
the benefits of regulating the goods or services in meeting 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, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
52H How inquiry triggered
(1)
The Commission—
(a)
must hold an inquiry if required to do so by the Minister; 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)
In conducting an inquiry into particular goods or services, the Commission must consider—
(a)
whether the test in section 52G is satisfied in relation to 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)
how the goods or services should be defined; and
(ii)
which type or types of regulation (as set out in section 52B(2)) the goods or services should be subject to; and
(iii)
how that type or those types of regulation should apply to suppliers of the goods or services.
(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 section 52G(1)(c), undertake a qualitative analysis of all material long-term efficiency and distributional considerations.
(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)
assess the direct and indirect costs and risks of any type of regulation considered, including administrative and compliance costs, transaction costs, and spill-over effects.
(4)
As part of an inquiry, the Commission must, when considering which type of regulation might be imposed,—
(a)
assess the benefits of imposing different types of regulation in meeting the purpose of this Part against the costs 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)
At the start of an inquiry, the Commission must publish in the 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)
must have regard to any views received from interested 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)
At the end of an inquiry, having considered the matters in section 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, the material provisions of the information disclosure requirements:
(e)
if negotiate/arbitrate regulation is recommended, the material provisions of the negotiation process and arbitration process:
(f)
if default/customised price-quality regulation is recommended, 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, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
52L Minister’s consideration
(1)
The Minister must consider any recommendation of the Commission 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 the Commission for written advice on what the material provisions of the relevant section 52P determination would be likely to be if the goods or services were subject to the type or types 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 accordance with section 52L and any advice given following a request under section 52L(3), the Minister must—
(a)
decide whether, in the opinion of the Minister, the goods or services should be regulated; and
(b)
if the goods or services are to be regulated, decide which 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)
The Minister’s decision may be the same as, or different from, the Commission’s recommendation under section 52K.
(3)
If the Minister’s decision is different from the Commission’s recommendation, the Minister must set out the reasons for the 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 Council imposing regulation on particular goods or services.
(2)
The order must—
(a)
declare that the goods or services are regulated; and
(b)
state which type or types of regulation the goods or services 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)
An order under this section is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
| Legislation Act 2019 requirements for secondary legislation made under this section | ||||
| Publication | PCO must publish it on the legislation website and notify it in the Gazette | LA19 s 69(1)(c) | ||
| Presentation | The Minister must present it to the House of Representatives | LA19 s 114, Sch 1 cl 32(1)(a) | ||
| Disallowance | It may be disallowed by the House of Representatives | LA19 ss 115, 116 | ||
| This note is not part of the Act. | ||||
52O Revocation or amendment of Order in Council
(1)
An Order in Council made under section 52N in respect of particular 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)
materially alters the goods or services to which the regulation 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)
An Order in Council made under section 52N may be amended in any other material way only after the Commission has consulted with interested parties, but may be amended in a non-material 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, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
52P Determinations by Commission under this section
(1)
The Commission must make determinations under this section specifying how the relevant forms of regulation apply to suppliers of regulated goods or services.
(2)
Determinations must be made,—
(a)
in the case of goods or services declared to be regulated by an Order in Council under section 52N, as soon as practicable after the Order in Council is made; and
(b)
in the case of goods or services declared to be regulated under subparts 9 and 10, in accordance with sections 54I, 54J, 54K, and 55E; and
(c)
in the case of regulation being imposed on specified airport services under section 56K, in accordance with section 56L; and
(d)
in the case of regulation being imposed on water services under subpart 12, in accordance with section 57N.
(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 to a supplier of regulated goods or services, and different parts of any determination may come into effect at different times.
(5)
If a determination under this section is made following an inquiry and a recommendation under section 52K, the requirements 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 determination that has been made under this section in respect of regulated goods or services of the same type.
(7)
The Commission must, as soon as practicable after making a determination under this section, give to each supplier to whom the determination relates notice of the determination and where it is available.
(8)
Each supplier to whom the determination relates must comply with the requirements imposed by the determination.
(8A)
See sections 57N to 57Q and Schedule 7, which provide for additional matters relating to determinations under this section that specify how regulation applies to suppliers of water services.
(9)
A determination under this section and an amendment to a determination are secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
| Legislation Act 2019 requirements for secondary legislation made under this section | ||||
| Publication | The maker must: | LA19 ss 73, 74(1)(a), Sch 1 cl 14 | ||
| • publish a summary of it in the Gazette | ||||
| • make it publicly available (see definition in section 2) | ||||
| • comply with subsection (7) | ||||
| Presentation | It is not required to be presented to the House of Representatives because a transitional exemption applies under Schedule 1 of the Legislation Act 2019 | LA19 s 114, Sch 1 cl 32(1)(a) | ||
| Disallowance | It is not disallowable because an exemption applies under Schedule 3 of the Legislation Act 2019 | LA19 s 115(d), Sch 3 | ||
| This note is not part of the Act. | ||||
Section 52P: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
Section 52P(2)(b): amended, on 26 October 2018, by section 6(1)(a) of the Commerce Amendment Act 2018 (2018 No 42).
Section 52P(2)(b): amended, on 26 October 2018, by section 6(1)(b) of the Commerce Amendment Act 2018 (2018 No 42).
Section 52P(2)(c): inserted, on 26 October 2018, by section 6(2) of the Commerce Amendment Act 2018 (2018 No 42).
Section 52P(2)(d): inserted, on 27 August 2025, by section 12(1) of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Section 52P(7): replaced, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
Section 52P(8A): inserted, on 27 August 2025, by section 12(2) of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Section 52P(9): replaced, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
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)
As soon as practicable after making an amendment, the Commission must give to each supplier to whom the determination relates notice of the amendment and where it is available.
(4)
An amendment relating to a customised price-quality path that takes effect under section 53ZA(3) may come into force before it is published under the Legislation Act 2019.
(5)
[Repealed]Section 52Q: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
Section 52Q(3): replaced, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
Section 52Q(4): replaced, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
Section 52Q(5): repealed, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
Subpart 3—Input methodologies
Subpart 3 heading: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
52R Purpose of input methodologies
The purpose of input methodologies is to promote certainty for suppliers and consumers in relation to the rules, 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
Every relevant input methodology relating to the supply of particular goods or services that is published as referred to in section 52W must be applied,—
(a)
if the goods or services are regulated, by every regulated supplier of the goods or services in accordance with the relevant section 52P determination; and
(b)
in all cases, by every person entitled or required under this Act to recommend, decide, or determine—
(i)
whether or how regulation under this Part should apply to the goods or services; or
(ii)
the prices or quality standards applying to the goods or services.
52T Matters covered by input methodologies
(1)
The input methodologies relating to particular goods or services must include, to the extent applicable to the type of regulation 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:
(iii)
allocation of common costs, including between activities, businesses, consumer classes, and geographic areas:
(iv)
treatment of taxation; and
(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 methodology determinations under this Part or of any appeals under section 91 or section 97); and
(ii)
identifying circumstances in which price-quality paths may be reconsidered within a regulatory period; and
(d)
matters relating to proposals by a regulated supplier for 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)
the criteria that the Commission will use to evaluate 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).
Section 52T(1)(b): amended, on 1 November 2010, by section 147 of the Electricity Industry Act 2010 (2010 No 116).
52U When input methodologies must be determined
(1)
[Repealed](2)
[Repealed](3)
The Commission must determine input methodologies for any 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).
Section 52U(1): repealed, on 26 October 2018, by section 7 of the Commerce Amendment Act 2018 (2018 No 42).
Section 52U(2): repealed, on 26 October 2018, by section 7 of the Commerce Amendment Act 2018 (2018 No 42).
52V Commission process for determining input methodologies
(1)
When the Commission begins work on an input methodology, 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)
must have regard to any views received from interested persons within any time frames set.
(3)
Despite subsections (1) and (2), any work done or action taken (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 deciding to treat earlier work or action as work or action done under this section.
Section 52V: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
52W Status of input methodologies, amendments, and revocations
(1)
The following are secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements):
(a)
an input methodology:
(b)
an amendment to an input methodology:
(c)
the revocation by the Commission of an input methodology.
(2)
The secondary legislation must be published under the Legislation Act 2019,—
(a)
if it is made by the Commission, within 10 working days after the Commission makes its determination; or
(b)
if it is made by the High Court on appeal, within 10 working days after the Commission receives a copy of the High Court’s decision.
(3)
If an input methodology or amendment is made by the High Court on appeal, the Legislation Act 2019 applies as if the Commission were the maker of the secondary legislation.
(4)
When a methodology or an amendment (but not a revocation) is published, the Commission must publish its reasons for determining the methodology, or for amending it, on an Internet site maintained by or on behalf of the Commission.
| Legislation Act 2019 requirements for secondary legislation referred to in subsection (1) | ||||
| Publication | The maker must: | LA19 ss 73, 74(1)(a), Sch 1 cl 14 | ||
| • notify it in the Gazette setting out a brief description of the nature of the methodology and the goods or services to which it applies, the reasons for making it, and how it is publicly available | ||||
| • make it publicly available (see definition in section 2) | ||||
| • comply with subsections (2) and (4) | ||||
| Presentation | It is not required to be presented to the House of Representatives because a transitional exemption applies under Schedule 1 of the Legislation Act 2019 | LA19 s 114, Sch 1 cl 32(1)(a) | ||
| Disallowance | It is not disallowable because an exemption applies under Schedule 3 of the Legislation Act 2019 | LA19 s 115(d), Sch 3 | ||
| This note is not part of the Act. | ||||
Section 52W: replaced, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
52X Amendment of input methodologies
(1)
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.
(2)
See also section 52W.
52Y Review and date of publication of input methodologies
(1)
The Commission must review each input methodology no later than 7 years after its date of publication and, after that, at intervals of no more than 7 years.
(2)
The date of publication of an input methodology is the date on which it is published under the Legislation Act 2019.
(3)
Section 52V applies, with all necessary modifications, as if the review were a new input methodology.
(4)
See also section 52W.
Section 52Y: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
Section 52Y(2): replaced, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
Section 52Y(4): replaced, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
Appeals against input methodology determinations
Heading: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
52Z Appeals against input methodology determinations
(1)
Any person who gave views on an input methodology determination to the Commission as part of the process under section 52V, and who, in the opinion of the court, has a significant interest in the matter, may appeal to the High Court against the 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)
any determination by the Commission of an input methodology following a review of the input methodology.
(3)
In determining an appeal against an input methodology determination, 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)
revoking the input methodology and substituting a new one; or
(iii)
referring the input methodology determination back to the Commission with directions as to the particular matters that require amendment.
(4)
The court may only exercise its powers under subsection (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)
If the court allows an appeal, the Commission may seek clarification from the court on any matter for the purpose of implementing 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 conducted solely on the basis of the documentary information and views that were before the Commission when it made its determination, and no party may introduce any new material during the appeal.
(3)
The High Court must sit with 2 lay members (unless the court considers that only 1 is required).
(4)
Each of the lay members must have relevant experience and be appointed from the pool of people appointed under section 77 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 subsection (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 as referred to in section 52W until any appeal against it is finally determined.
(2)
Section 52S continues to apply with respect to every input methodology published as referred to in 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).
Section 53(1): amended, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
Section 53(2): amended, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
Subpart 4—Information disclosure regulation
Subpart 4: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
53A Purpose of information disclosure regulation
The purpose of information disclosure regulation is to ensure that sufficient information is readily available to interested persons 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)
publicly disclose information in accordance with the information disclosure requirements set out in the relevant section 52P determination; and
(b)
supply to the Commission a copy of all information disclosed in accordance with the section 52P determination, within 5 working days after the information is first made publicly available; and
(c)
supply to the Commission, in accordance with a written notice by the Commission, any further statements, reports, agreements, particulars, or other information required for the purpose of monitoring the supplier’s compliance with the section 52P determination.
(2)
If a supplier of goods or services is subject to information disclosure 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.
(3)
To avoid doubt, the Commission may, as part of a summary and analysis, include an analysis of how effective the information disclosure requirements imposed on the goods or services are in promoting the purpose of this Part.
53C Section 52P determination to set out information disclosure requirements
(1)
A section 52P determination relating to goods or services that 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)
specify any other methodologies that are required in the preparation or compilation of the information.
(2)
Information required to be disclosed may include (without limitation) any or all of the following:
(a)
financial statements (including projected financial statements):
(b)
asset values and valuation reports:
(c)
prices, terms and conditions relating to prices, and pricing methodologies:
(d)
contracts:
(e)
transactions with related parties:
(f)
financial and non-financial performance measures:
(g)
plans and forecasts, including (without limitation) 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 following:
(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)
exempt any person or class of persons, or provide for exemptions, 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 considers necessary or desirable to promote the purpose of information disclosure regulation.
(4)
The section 52P determination may not require a supplier to publicly disclose any provision of an existing contract that, immediately before the goods or services became subject to information disclosure regulation, was not required by or under Part 4A (as defined in section 54B) or any other enactment to be publicly disclosed.
(5)
If a section 52P determination authorises a person to grant exemptions referred to in subsection (3)(d),—
(a)
an instrument granting or revoking an exemption is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements), unless it applies only to 1 or more named persons; and
(b)
the determination must contain a statement to that effect.
| Legislation Act 2019 requirements for secondary legislation referred to in subsection (5)(a) | ||||
| Publication | If the section 52P determination under which it is made was made before 28 October 2021, the maker must comply with any requirements to publish, notify, or otherwise make it available that applied under this Act or the section 52P determination immediately before that date | LA19 ss 69, 73, 74 | ||
| If the section 52P determination under which it is made was made on or after 28 October 2021, the maker must publish it in accordance with the Legislation (Publication) Regulations 2021 | ||||
| Presentation | The Minister must present it to the House of Representatives, unless it is excluded by section 114(2) or clause 32 of Schedule 1 of the Legislation Act 2019 | LA19 s 114, Sch 1 cl 32 | ||
| Disallowance | It may be disallowed by the House of Representatives, unless it is excluded by section 115 of the Legislation Act 2019 | LA19 ss 115, 116 | ||
| This note is not part of the Act. | ||||
Section 53C: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
Section 53C(5): inserted, on 28 October 2021, by regulation 42 of the Legislation Act (Amendments to Legislation) Regulations 2021 (LI 2021/247).
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 section 52P determination may require information referred to in subsection (3) to be disclosed only to the extent required 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 information referred to in section 53C, for all businesses (including those related to the supply of unregulated goods or services) undertaken by that supplier; and
(b)
consolidated financial statements, and any other information 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 section 52S, suppliers that are subject only to information disclosure regulation do not have to apply the following input methodologies in accordance with that section:
(a)
pricing methodologies:
(b)
methodologies for evaluating or determining the cost of capital.
(2)
However, to avoid doubt, subsection (1) does not affect anything else in this subpart, and in particular does not affect—
(a)
section 53B(2) (which means the Commission may use the input methodologies referred to in subsection (1) to monitor and analyse information); and
(b)
section 53C(2) (which means that suppliers may still be required to disclose information about the pricing methodologies, 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
Subpart 5: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
53G Purpose of negotiate/arbitrate regulation
The purpose of negotiate/arbitrate regulation is to encourage a supplier and its customers to reach agreement, through negotiation, on the supplier’s prices and quality standards during a specified regulatory period, and to provide for binding arbitration 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, the parties must enter into arbitration to resolve the outstanding matters; and
(c)
the terms of the arbitration are set by the Commission, and the arbitral award is binding on the parties unless or 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 following:
(a)
the parties to the negotiation or arbitration:
(b)
the matters (including the prices and quality standards associated with the regulated goods or services) that the parties must agree to by negotiation, or are bound to by 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)
the information that the parties must provide to the other 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)
the time frames for the negotiations (including stages in negotiations) and, in particular, the date by which, if negotiations are not complete, the parties must enter into arbitration to settle any remaining unresolved matters:
(h)
the terms of any compulsory arbitration that takes place 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 matters it considers necessary or desirable to promote the purpose of negotiate/arbitrate regulation.
(3)
If the parties to a negotiation agree to arbitration, the arbitration may be on whatever terms they agree to, but must be completed within the time frames set for the negotiation.
(4)
The Commission may extend any time frames set out in a section 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)
include a right of appeal to the High Court, 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)
If a settlement is not reached (whether by negotiation or voluntary arbitration) within the time frame set by the Commission, the parties must enter into arbitration under this section on the terms set out in the section 52P determination.
(2)
The Arbitration Act 1996 does not apply to arbitration under this section, but the Commission may, in setting out the terms of the arbitration in the section 52P determination, apply any provisions of that Act to the arbitration.
(3)
The arbitrator’s role is to make an arbitral award that promotes 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 must have particular regard to the effect of the outcome of the 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).
Subpart 6—Default/customised price-quality regulation
Subpart 6: inserted, on 14 October 2008, by section 4 of the Commerce Amendment 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 paths for suppliers of regulated goods or services, while allowing 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 a specified 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 individual price-quality path under subpart 7) must specify,—
(a)
in relation to prices, either or both of the following with respect to a specified regulatory period:
(i)
the maximum price or prices that may be charged by a regulated supplier:
(ii)
the maximum revenues that may be recovered by 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 supplier to maintain or improve its quality of supply, and those incentives may include (without limitation) any of the following:
(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, the supplier meets or exceeds the required quality 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)
Quality standards may be prescribed in any way the Commission considers appropriate (such as targets, bands, or formulae) and may include (without limitation)—
(a)
responsiveness to consumers; and
(b)
in relation to electricity lines services, reliability of supply, 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 5 years if it considers that it would better meet the purposes of this Part, but in any event may not set a term less than 4 years.
(6)
Subsections (4) and (5) are subject to section 53W.
(7)
No default price-quality path applies to a supplier until the date specified in the relevant section 52P determination, which must be a date at least 4 months after the determination is published as referred to in section 52P(9).
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 addition to exercising its powers under section 98, issue a written notice to a regulated supplier requiring it to provide any or all 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) that is signed by an auditor in accordance with any form specified by the Commission:
(c)
sufficient information to enable the Commission to properly determine whether all applicable price-quality paths have been complied with:
(d)
a certificate, in the form specified by the Commission and signed by at least 1 director of the supplier, 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, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
53O Section 52P determination to set out requirements of default price-quality paths
If default price-quality regulation applies to regulated goods or 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)
the rate or rates of change in prices, relative to the Consumers Price Index, allowed during the first regulatory period; and
(c)
the quality standards that apply during the first regulatory period; and
(d)
the date or dates on which the default price-quality path (or any part of it) takes effect; and
(e)
the annual date by which any proposal for a customised price-quality path must be received; and
(f)
the annual date by which compliance must be demonstrated in accordance with section 53N.
Section 53O: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
Section 53O(b): amended, on 1 September 2022, by section 107(1) of the Data and Statistics Act 2022 (2022 No 39).
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 determination by setting out the starting prices (as referred to in section 53O(a)), rates of change (as referred to in section 53O(b)), and quality standards (as referred to in section 53O(c)) that apply for the following regulatory period.
(2)
In resetting starting prices, rates of change, and quality standards, the Commission must consult with interested parties.
(3)
The starting prices must be either—
(a)
the prices that applied at the end of the preceding regulatory 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 not seek to recover any excessive profits made during any earlier period.
(5)
Subject to subsection (8), the Commission must set only 1 rate of change per type of regulated goods or services (for example, if the rate of change (x) is 1% in a CPI−x path, 1% must be the 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 measures of productivity the Commission considers appropriate.
(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)
The Commission may set alternative rates of change for a particular supplier—
(a)
as an alternative, in whole or in part, to the starting prices set under subsection (3)(b) if, in the Commission’s opinion, this is necessary or desirable to minimise any undue financial hardship to the supplier or to minimise 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 starting prices, rates of change, quality standards, or incentives 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 section 52P determination by the end of the regulatory period to which it applies, the starting prices, rates of change, and quality standards that apply at the end of the regulatory period continue 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, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
53Q Supplier may propose customised price-quality path
(1)
At any time after a default price-quality path is set by the Commission, 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)
comply with the input methodologies referred to in section 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, specified for the purpose in the section 52P determination; 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)
A supplier that makes a proposal must make it publicly available as soon as practicable after it has been made to 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 the input methodologies referred to in section 52T(1)(d) relating to the process for, and content of, customised price-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 requested by the Commission under subsection (2)(b), the Commission may discontinue any consideration of the proposal.
(4)
If a proposal is discontinued under subsection (2) or (3), section 53Q(3) does not apply and the supplier may make another proposal within the regulatory period (except in the 12 months 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 the input methodologies relating to the process for, and content of, customised price-quality path proposals, it must—
(a)
give notice that the proposal is under consideration, and how copies of the proposal may be obtained; and
(b)
set a date for interested persons to make submissions on 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 53U and 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)
The Commission may determine any customised price-quality path that the Commission considers appropriate for a supplier that has made a proposal.
(2)
To avoid doubt, and without limitation, in determining a customised price-quality path that complies with section 53M 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)
if it sets a lower or a higher price than applied under the default price-quality path, apply claw-back:
(c)
with the agreement of the supplier, vary an input methodology 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 relating to the default/customised price-quality regulation applying 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 this Part, but in any event may not set a term less than 3 years.
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)
When the customised price-quality path of a supplier of goods 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 customised price-quality path unless, at least 4 months before the end of the customised price-quality path, the Commission advises 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 customised price-quality path may apply in accordance with section 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 setting or reconsidering, a customised price-quality path must be 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 customised price-quality path exceeds the Commission’s costs 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)
The costs may be recovered in whatever manner the Commission determines.
Section 53Y: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
Section 53Y heading: amended, on 1 November 2010, by section 148(1) of the Electricity Industry Act 2010 (2010 No 116).
Section 53Y(1): amended, on 1 November 2010, by section 148(2) of the Electricity Industry Act 2010 (2010 No 116).
Section 53Y(1A): inserted, on 1 November 2010, by section 148(3) of the Electricity 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)
may defer the additional proposals to a subsequent year; but
(b)
must prioritise its consideration of the proposals in accordance with the criteria in subsection (3).
(3)
The criteria for Commission decisions on priorities are as follows:
(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 Commission of its information-gathering powers under section 53ZD or 98, the default price-quality path continues in effect at the close of that period, and the Commission must notify the supplier accordingly.
(3)
If the regulated supplier has so complied, the customised proposal 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 out the customised price-quality path applying to the supplier.
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 input methodologies change
Heading: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
53ZB What happens to price-quality paths if input methodologies change
(1)
Default or customised price-quality paths may not be reopened within a regulatory period on the grounds of a change in an input methodology, except as provided in subsection (2).
(2)
Every default and customised price-quality path must be reset 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
Subpart 7: inserted, on 14 October 2008, by section 4 of the Commerce Amendment 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 necessary modifications) where individual price-quality regulation is imposed:
(a)
sections 53M and 53N:
(b)
Section 53ZC: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
Subpart 8—Miscellaneous provisions
Subpart 8: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
53ZD Powers of Commission under this Part
(1)
For the purpose of carrying out its functions and exercising its powers under this Part, the Commission may, in addition to exercising its powers under section 98, do any of the following:
(a)
consult with any person the Commission considers may 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 be applied, or how any formula, methodology, or price-quality provision determined or authorised by the Commission has been applied, in considering proposed prices or quality standards:
(iii)
how any conditions relating to the quality of the goods or services may be, or are being, fulfilled:
(c)
examine, consider, or investigate any activity, 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)
to apply any methodology specified by the Commission 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)
produce or supply to the Commission documents and information in relation to the goods or services, or the prices or operations of the person in 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 opinion from an appropriately qualified person, or from a member of a class of appropriately qualified persons, as determined by the Commission in relation to the matters in paragraph (b), (c), (d), or (e)(i).
(2)
In subsection (1)(e), inquiry also means an inquiry carried out in accordance with sections 56F to 56H.
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)
The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations—
(a)
specifying the amount of levies, or method of calculating or ascertaining the amount of levies, on the basis that the estimated costs for an appropriation period 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)
providing different levies for different classes of suppliers or goods or services:
(e)
specifying the appropriation period or part appropriation period to which those levies apply, and applying to that appropriation period or part appropriation period and each subsequent appropriation period until revoked or replaced:
(f)
providing for the payment and collection of those levies:
(g)
for the first appropriation period to which the levy applies to a supplier or class of suppliers, including in the levy amount or method costs incurred by the Commission in connection with preparing itself to perform, and performing, its functions, powers, and duties under this Part, irrespective of the fact—
(i)
that the regulations are made and come into effect after that period; 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 an appropriation period or a part appropriation period, irrespective of the fact that the regulations may be made after that appropriation period 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.
(2A)
In subsection (2), appropriation period, in relation to any estimated costs, means—
(a)
a financial year; or
(b)
if the estimated costs will be incurred under the authority of a multi-year appropriation or of a multi-year appropriation proposed in any Estimates, the financial years to which the multi-year appropriation applies.
(2B)
In subsection (2A)(b),—
Estimates—
(a)
has the meaning given in section 2(1) of the Public Finance Act 1989; and
(b)
includes Supplementary Estimates as defined in section 2(1) of that Act
multi-year appropriation means an appropriation authorised to apply for more than 1 financial year (see section 10 of the Public Finance Act 1989).
(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 goods or services, or representatives of those suppliers, before making a recommendation for the purposes of subsection (2).
(5)
Regulations under this section are secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
(6)
If regulations authorise a person to grant exemptions or waivers referred to in subsection (2)(i),—
(a)
an instrument granting an exemption or a waiver is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements), unless it applies only in a particular case; and
(b)
the regulations must contain a statement to that effect.
| Legislation Act 2019 requirements for secondary legislation referred to in subsection (5) | ||||
| Publication | PCO must publish it on the legislation website and notify it in the Gazette | LA19 s 69(1)(c) | ||
| Presentation | The Minister must present it to the House of Representatives | LA19 s 114, Sch 1 cl 32(1)(a) | ||
| Disallowance | It may be disallowed by the House of Representatives | LA19 ss 115, 116 | ||
| This note is not part of the Act. | ||||
| Legislation Act 2019 requirements for secondary legislation referred to in subsection (6)(a) | ||||
| Publication | See the relevant publication, presentation, and disallowance table in the secondary legislation referred to in subsection (5) | LA19 ss 73, 74, Sch 1 cl 14 | ||
| Presentation | The Minister must present it to the House of Representatives, unless a transitional exemption applies under Schedule 1 of the Legislation Act 2019 | LA19 s 114, Sch 1 cl 32 | ||
| Disallowance | It may be disallowed by the House of Representatives | LA19 ss 115, 116 | ||
| This note is not part of the Act. | ||||
Section 53ZE: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
Section 53ZE(2)(a): amended, on 1 July 2019, by section 10(1) of the Regulatory Systems (Commercial Matters) Amendment Act 2017 (2017 No 12).
Section 53ZE(2)(e): amended, on 1 July 2019, by section 10(2) of the Regulatory Systems (Commercial Matters) Amendment Act 2017 (2017 No 12).
Section 53ZE(2)(g): amended, on 1 July 2019, by section 10(3) of the Regulatory Systems (Commercial Matters) Amendment Act 2017 (2017 No 12).
Section 53ZE(2)(g)(i): amended, on 1 July 2019, by section 10(4) of the Regulatory Systems (Commercial Matters) Amendment Act 2017 (2017 No 12).
Section 53ZE(2)(h): amended, on 1 July 2019, by section 10(5) of the Regulatory Systems (Commercial Matters) Amendment Act 2017 (2017 No 12).
Section 53ZE(2)(h): amended, on 1 July 2019, by section 10(6) of the Regulatory Systems (Commercial Matters) Amendment Act 2017 (2017 No 12).
Section 53ZE(2A): inserted, on 1 July 2019, by section 10(7) of the Regulatory Systems (Commercial Matters) Amendment Act 2017 (2017 No 12).
Section 53ZE(2B): inserted, on 1 July 2019, by section 10(7) of the Regulatory Systems (Commercial Matters) Amendment Act 2017 (2017 No 12).
Section 53ZE(5): inserted, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
Section 53ZE(6): inserted, on 28 October 2021, by regulation 43 of the Legislation Act (Amendments to Legislation) Regulations 2021 (LI 2021/247).
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 class of persons, in respect of any information or class of information that the Commission considers to be commercially sensitive, 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, or revenue threshold regulation, quality regulation, performance requirement regulation, or price-quality regulation under subpart 12.
(2)
The Commission may grant the exemption on any terms and conditions that it thinks fit.
(3)
[Repealed](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)
An exemption, and any variation or revocation of it, is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
| Legislation Act 2019 requirements for secondary legislation made under this section | ||||
| Publication | The maker must publish it in the Gazette | LA19 ss 73, 74(1)(a), Sch 1 cl 14 | ||
| Presentation | It is not required to be presented to the House of Representatives because a transitional exemption applies under Schedule 1 of the Legislation Act 2019 | LA19 s 114, Sch 1 cl 32(1)(a) | ||
| Disallowance | It is not disallowable because an exemption applies under Schedule 3 of the Legislation Act 2019 | LA19 s 115(d), Sch 3 | ||
| This note is not part of the Act. | ||||
Section 53ZG: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
Section 53ZG(1): amended, on 27 August 2025, by section 13 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Section 53ZG(3): repealed, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
Section 53ZG(6): replaced, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
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, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
54 Overview of how subpart applies
(1)
This subpart provides—
(a)
that all suppliers of electricity lines services are subject to information disclosure regulation; and
(b)
that suppliers of electricity lines services that are not consumer-owned are also subject to price-quality regulation; and
(c)
for the transition to the new regime provided for in this Part.
(2)
This section is only a guide.
Section 54: substituted, on 1 April 2009, by section 4 of the Commerce Amendment 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.
Section 54A: inserted, on 1 April 2009, by section 4 of the Commerce Amendment 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 respect 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
electricity lines services has the meaning given in section 54C
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 4A for the declaration of control in relation to large electricity lines businesses
Transpower means Transpower New Zealand Limited or any subsidiary of, or successor to, that company.
(2)
References in this subpart to Transpower include references to Transpower in its role as system operator under the Electricity Industry Act 2010.
Section 54B: inserted, on 1 April 2009, by section 4 of the Commerce Amendment 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)
conveying electricity solely for the supplier’s own consumption or for the consumption of the supplier’s associates:
(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) only from a generator to a local distribution network or 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 an associate of the person, provided that the competition 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, as the case may be) is less than 25 kilometres:
(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 whom the supplier conveys electricity is less than 500.
(3)
The prescribed voltage electric lines, the electricity conveyed, or the number of consumers to whom electricity is conveyed, when measured in relation to a supplier include, for the purposes of subsection (2)(f) to (h), the lines provided by, electricity conveyed by, or number of consumers of, any associate of the supplier.
(4)
In this section, unless the context otherwise requires,—
associate has the same meaning as in section 73 of the Electricity Industry Act 2010
consumer has the same meaning as in section 2(1) of the Electricity Act 1992
lines has the same meaning as in section 2(1) of the Electricity 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.
Section 54C: inserted, on 1 April 2009, by section 4 of the Commerce Amendment 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 by 1 or more customer trusts, community trusts, or customer 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,—
community trust, in relation to a supplier, is 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 their domicile or location or operation within the geographic area or areas of operation of the supplier; and
(b)
at least 90% of its income distributions are paid to those beneficiaries or for purposes related to that geographic area or areas
consumer has the same meaning as in section 2(1) of the Electricity Act 1992, and includes, for the purposes of references to the election of trustees in this section and section 54H, any person who is listed on an electoral roll as a resident of an address 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-operative Companies Act 1996) that has the characteristics 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:
(iii)
the person’s liability for payment for supply of electricity from the supplier:
(iv)
the person’s liability for payment for the connection to the lines of the supplier:
(v)
the person’s liability for payment for line services supplied by the supplier; and
(b)
at least 90% of its income distributions are paid to those 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)
at least 90% of the persons who are consumers of the supplier at the time of the election are eligible to vote in those elections; or
(ii)
in the case of a customer trust or community trust, there is ward-based voting that complies with the requirements of subsection (2B); and
(c)
each consumer must have an equal vote.
(2B)
The requirements for ward-based voting are as follows:
(a)
at least 90% of the persons in a ward who are consumers 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)
ward boundaries must provide for effective and fair representation of all consumers of the supplier, and in particular,—
(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)
A trustee of a customer trust or community trust, or a member of the committee of shareholders of a customer co-operative, as the case may be, must be treated as having been elected solely by the persons who are consumers of the supplier if the 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-highest-polling 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 elected since the last election at which consumers 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 names of the suppliers that are consumer-owned as at that date.
(4)
The notice in subsection (3) is only for information purposes and has no legal effect.
Section 54D: inserted, on 1 April 2009, by section 4 of the Commerce Amendment 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).
Section 54D(2A): inserted, on 1 November 2010, by section 151(3) of the Electricity Industry Act 2010 (2010 No 116).
Section 54D(2B): inserted, on 1 November 2010, by section 151(3) of the Electricity Industry Act 2010 (2010 No 116).
Section 54D(2C): inserted, on 1 November 2010, by section 151(3) of the Electricity Industry Act 2010 (2010 No 116).
Section 54D(2D): inserted, on 1 November 2010, by section 151(3) of the Electricity Industry Act 2010 (2010 No 116).
Section 54D(2E): inserted, on 1 November 2010, by section 151(3) of the Electricity 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, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
54E Electricity lines services declared to be regulated
Electricity lines services are regulated under this Part.
Section 54E: inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
54F All electricity lines services are subject to information disclosure regulation
All electricity lines services are subject to information disclosure regulation under this Part.
Section 54F: inserted, on 1 April 2009, by section 4 of the Commerce Amendment 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)
All electricity lines services that are supplied by a supplier that is consumer-owned are exempt (unless an Order in Council has been made in respect of the service under section 54H).
Section 54G: inserted, on 1 April 2009, by section 4 of the Commerce Amendment 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)
Electricity lines services that are supplied by a supplier that is consumer-owned cease to be exempt for the purpose of section 54G (and therefore become subject to default/customised price-quality regulation under this Part) if the Governor-General, by Order in Council, declares that this section applies.
(2)
The Minister may make a recommendation only if the Minister is satisfied that either—
(a)
the Commission has advised the Minister that a supplier 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)
The Commission may make a recommendation under subsection (2)(b) only following consideration of a petition made by 1 or more of the following:
(a)
15% of the persons who are domestic consumers of the 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% of the persons who are domestic consumers of the 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.
(7)
An order under this section is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
| Legislation Act 2019 requirements for secondary legislation made under this section | ||||
| Publication | PCO must publish it on the legislation website and notify it in the Gazette | LA19 s 69(1)(c) | ||
| Presentation | The Minister must present it to the House of Representatives | LA19 s 114, Sch 1 cl 32(1)(a) | ||
| Disallowance | It may be disallowed by the House of Representatives | LA19 ss 115, 116 | ||
| This note is not part of the Act. | ||||
Section 54H: inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
Section 54H(2A): inserted, on 1 November 2010, by section 152(1) of the Electricity 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).
Section 54H(3A): inserted, on 1 November 2010, by section 152(3) of the Electricity Industry Act 2010 (2010 No 116).
Section 54H(7): inserted, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
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 lines services must be made as soon as practicable after 1 April 2009.
(2)
The section 52P determinations that specify how default/customised price-quality regulation applies to each supplier of electricity lines services that is subject to that form of regulation as at 1 April 2009 are made as set out in section 54J.
(3)
The section 52P determinations that specify how default/customised 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 section 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 Amendment 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)
state that the regulatory period for each supplier ends on 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 close of 31 March 2010 must be dealt with in accordance with 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 Amendment 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 price-quality paths were reset as required by subsection (1), it would have resulted in a materially different path being set, then the Commission may reset the default price-quality paths in accordance with section 53P and may apply claw-back, despite section 53ZB(1).
(4)
However, the Commission may not exercise its powers in subsection (3) later than 9 months after the date of publication of the input methodology.
(5)
Nothing in this section affects sections 54N and 54O.
Section 54K: inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
Transitional arrangements
Heading: inserted, on 1 April 2009, by section 4 of the Commerce Amendment 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 accepted by the Commission before 1 April 2009 in respect of a 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)
Any breach of the administrative settlement must be dealt with in accordance with the terms of the settlement.
(4)
The expiry of the administrative settlement must be treated as if it were the end of a customised price-quality path, and section 53X applies accordingly (unless the supplier concerned would not otherwise be subject to default/customised price-quality regulation after the expiry of the settlement).
Section 54L: inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
54M Administrative settlements with Transpower made before 1 April 2009
(1)
This section applies to any administrative settlement with Transpower that is accepted by the Commission before 1 April 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 customised price-quality path, despite anything in the terms of the 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)
Transpower is subject to default/customised price-quality regulation under subpart 6; or
(b)
Transpower is subject to individual price-quality regulation 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 the date on which the Order in Council comes into force, using the process under section 53P for resetting default price-quality paths.
(6)
[Repealed]Section 54M: inserted, on 1 April 2009, by section 4 of the Commerce Amendment 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).
Section 54M(6): repealed, on 1 November 2010, by section 153(2) of the Electricity 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)
any breach of a threshold that occurred before the close of 31 March 2007; and
(b)
any breach of a threshold that occurs on or after 1 April 2007 and before the close of 31 March 2009; and
(c)
any breach of a default price-quality path that occurs on or after 1 April 2009 and before the close of 31 March 2010.
(2)
The Commission may not publish a notice of intention to declare control under Part 4A,—
(a)
in respect of a breach referred to in subsection (1)(a), at any time after 1 October 2008; and
(b)
in respect of a breach referred to in subsection (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 a notice of intention to declare control under subsection (2) in respect of the breach,—
(a)
make a control declaration under Part 4A; or
(b)
enter into an administrative settlement in respect of the 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, except that the purpose in section 52A must be taken 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 administrative 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 section 53X applies accordingly (unless the supplier concerned 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 settlement entered into, in accordance with section 54N(3), the breach may be dealt with under Part 6 as if it were a breach of a customised price-quality path, despite anything in the terms of the control or settlement.
(2)
To avoid doubt, this section applies whether or not the supplier is, after 1 April 2009, subject to default/customised price-quality regulation.
Section 54O: inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
54P Proposals for customised price-quality paths
(1)
A supplier of electricity lines services may not propose a customised price-quality path until an input methodology setting out the requirements and criteria for proposals for customised price-quality paths (as required by section 52T(1)(d)) is published as referred to in section 52W.
(2)
However, in accordance with section 53V(2), the Commission may apply claw-back when setting any customised price-quality path.
Section 54P: inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
Section 54P(1): amended, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
Section 54P(1): amended, on 1 November 2010, by section 154(a) of the Electricity Industry Act 2010 (2010 No 116).
Section 54P(1): amended, on 1 November 2010, by section 154(b) of the Electricity Industry Act 2010 (2010 No 116).
Energy efficiency
Heading: inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
54Q Energy efficiency
The Commission must promote incentives, and must avoid imposing 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.
Section 54Q: inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
Transpower grid upgrade plans and capital expenditure 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 approving grid upgrade plan proposals by Transpower (including proposals to amend existing grid upgrade plans) is transferred to the Commission on the commencement date.
(2)
Subsection (1) applies both to proposals made on and after the commencement date and to any proposals that were requested or under consideration by the Electricity Commission before the commencement date.
(3)
Until the input methodology required by section 54S is determined and published as referred to in 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, the grid investment test set out in Schedule F4 of 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 for approving grid upgrade plans (which includes rules 12 to 15 and 17.2); and
(iii)
need not repeat any processes already undertaken by the Electricity Commission or undertake any processes that the Electricity Commission would have been required to undertake.
(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)
nothing in this section affects the transfer from the Electricity Commission to the Electricity Authority of all other roles relating to transmission, such as setting grid reliability standards and the transmission pricing methodology.
(5)
The Commission may change any timetables previously agreed for consultation on, and approval of, grid upgrade plan proposals, but must first consult Transpower on any timetable changes.
(6)
To facilitate the transfer of roles referred to in subsection (1), the Electricity Authority must give the Commission copies of all information it holds regarding grid upgrade plan proposals that were under consideration by the Electricity Commission before the commencement date.
(7)
In this section,—
commencement date means 1 November 2010
Electricity Governance Rules means the Electricity Governance Rules 2003 as they were immediately before their revocation by the Electricity Industry Act 2010
grid upgrade plan has the meaning set out in the Electricity Governance Rules.
Section 54R: substituted, on 1 November 2010, by section 155 of the Electricity Industry Act 2010 (2010 No 116).
Section 54R(3): amended, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
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, the extent of independent verification and audit, and the 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 period of up to 3 months, in which case notice of the extension 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
Section 54S: substituted, on 1 November 2010, by section 155 of the Electricity 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 Industry 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 in relation to electricity lines services under this Part.
(2)
The Electricity Authority must advise the Commission as soon as practicable after doing any of the following things that are likely to be relevant to the powers or functions of the Commission in relation to electricity lines services under this Part:
(a)
making any provision of the Code:
(b)
making any decision under the Code:
(c)
undertaking any market-facilitation measures.
(d)
[Repealed](3)
The Electricity Authority must advise the Commission, as soon as practicable, following any change in the Code that results in increased costs to a supplier of electricity lines services.
(4)
The Commission must take into account, before exercising any of its powers or performing any of its functions in relation to electricity lines services under this Part,—
(a)
any provision of the Code, or decision made under it, that relates to or affects—
(i)
pricing methodologies that apply to a supplier of electricity lines services; or
(ii)
quality or information requirements that apply to a supplier of electricity lines services:
(b)
any market-facilitation measures of which it receives advice under subsection (2)(c):
(c)
the levy payable by a supplier of electricity lines services under section 128 of the Electricity Industry Act 2010:
(d)
the continuance of supply obligations imposed by section 105 of the Electricity Industry Act 2010.
(5)
The Commission must, if asked by the Electricity Authority to do so, reconsider a section 52P determination and, to the extent that the Commission considers it necessary or desirable to do so, amend the determination, to take account of any matter referred to in subsection (3) or (4).
(6)
[Repealed]Section 54V: substituted, on 1 November 2010, by section 156 of the Electricity Industry Act 2010 (2010 No 116).
Section 54V(1): amended, on 1 September 2022, by section 52(1) of the Electricity Industry Amendment Act 2022 (2022 No 46).
Section 54V(2): amended, on 1 September 2022, by section 52(2) of the Electricity Industry Amendment Act 2022 (2022 No 46).
Section 54V(2): amended, on 1 September 2022, by section 52(3) of the Electricity Industry Amendment Act 2022 (2022 No 46).
Section 54V(2)(c): replaced, on 1 September 2022, by section 52(4) of the Electricity Industry Amendment Act 2022 (2022 No 46).
Section 54V(2)(d): repealed, on 1 September 2022, by section 52(4) of the Electricity Industry Amendment Act 2022 (2022 No 46).
Section 54V(3): amended, on 1 September 2022, by section 52(5) of the Electricity Industry Amendment Act 2022 (2022 No 46).
Section 54V(4): replaced, on 1 September 2022, by section 52(6) of the Electricity Industry Amendment Act 2022 (2022 No 46).
Section 54V(5): amended, on 1 September 2022, by section 52(7) of the Electricity Industry Amendment Act 2022 (2022 No 46).
Section 54V(6): repealed, on 1 September 2022, by section 52(8) of the Electricity Industry Amendment Act 2022 (2022 No 46).
Savings provisions
Heading: inserted, on 1 April 2009, by section 4 of the Commerce Amendment 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.
Section 54W: inserted, on 1 April 2009, by section 4 of the Commerce Amendment 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 large line owner in respect of every financial year that precedes 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 enforcing the obligations under this Part, in respect of those persons, and with all other necessary modifications; and
(b)
terms used in subsection (1) have the same meaning as they do in those regulations.
Section 54X: inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
Subpart 10—Gas pipeline services
Subpart 10 heading: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
Overview and interpretation
Heading: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
55 Overview of subpart
(1)
This subpart provides—
(a)
that certain gas pipeline services are subject to information disclosure regulation and price-quality regulation; and
(b)
for the transition to the new regime provided for in this 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 assumption of 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)
The gas conveyed, when measured in relation to a supplier includes, for the purposes of subsection (2)(b), the gas conveyed 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 Electricity Industry Reform Act 1998
consumer has the same meaning as in section 2(1) of the Gas 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)
means everything used, or designed or intended for use, (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)
The Governor-General may, by Order in Council made on the 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)
The Minister may make a recommendation for the purpose of 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 gas pipeline services are supplied in a market where the owner of the pipeline does not have a substantial degree of market power; and
(c)
in the case of a recommendation to delete a pipeline, the gas pipeline services are supplied in a market where the owner of the pipeline has a substantial degree of market power; and
(d)
the Commission has consulted (without necessarily holding an inquiry) with interested parties.
(7)
An order under subsection (5) is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
| Legislation Act 2019 requirements for secondary legislation made under this section | ||||
| Publication | PCO must publish it on the legislation website and notify it in the Gazette | LA19 s 69(1)(c) | ||
| Presentation | The Minister must present it to the House of Representatives | LA19 s 114, Sch 1 cl 32(1)(a) | ||
| Disallowance | It may be disallowed by the House of Representatives | LA19 ss 115, 116 | ||
| This note is not part of the Act. | ||||
Imposition of regulation under this Part
Heading: inserted, on 14 October 2008, by section 4 of the Commerce Amendment 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 services must be made as soon as practicable after this subpart comes into force.
(2)
The section 52P determinations that specify how default/customised price-quality regulation applies to each supplier of gas 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/customised price-quality regulation applies to each supplier of gas pipeline services that become subject to that form of regulation as a result of an Order in Council made under section 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)
The Commission must use the processes set out in section 53P in making the first section 52P determinations that set out how default price-quality regulation applies to suppliers of gas pipeline services as if 30 June 2010 were the end of the previous 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 Consumers Price Index in the period beginning 1 January 2008 and ending with the date that the determination is made, the Commission may apply claw-back to the extent of requiring the supplier to 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 respect of suppliers of gas pipeline services even if all or any of the relevant input methodologies have not been determined.
(4)
If an input methodology is published after a section 52P determination referred to in subsection (1) is made, and if, had that methodology applied at the time the default price-quality paths were set as required by subsection (1), it would have resulted in a materially different path being set, then the Commission may reset the default price-quality paths and may apply claw-back, despite section 53ZB(1).
(5)
However, the Commission may not exercise its powers in subsection (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).
Section 55F(2): amended, on 1 September 2022, by section 107(1) of the Data and Statistics Act 2022 (2022 No 39).
Services controlled by virtue of Commerce (Control of Natural Gas Services) Order 2005
Heading: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
55G Existing order, authorisations, and undertakings continue 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 (Control of Natural Gas Services) Order 2005 (the order).
(2)
The order continues in force, despite the repeal of Part 4 (as it was before its repeal by the Commerce Amendment Act 2008), until the date on which the order expires or is revoked (the expiry date).
(3)
The enactment of the Commerce Amendment Act 2008 does not limit or affect, before the expiry date, any of the following in respect of the gas pipeline services that are controlled by virtue of the order:
(a)
any authorisation made (including the ability to amend or revoke an authorisation), or any undertaking obtained 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 Commerce 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 How price-quality regulation under this Part applies after 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 controlled by virtue of the Commerce (Control of Natural Gas Services) Order 2005 (the order).
(2)
The expiry of the order must be treated as if it were the expiry 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)
if an undertaking is obtained or accepted from a supplier in respect of a service that expires on an earlier date, that earlier date, provided that the order ceases to apply to that service on or before that date (by revocation 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, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
55I Impact of certain decisions made under Gas Act 1992
(1)
The recommending body must advise the Commerce Commission as soon as practicable after making any recommendation for a gas governance regulation or rule under Part 4A of the Gas Act 1992, or after making any decision under gas governance 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)
The Commission must take into account, before exercising any of its powers under this Part,—
(a)
any gas governance regulation or rule under Part 4A of 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 to be relevant to the powers of the Commerce Commission 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 to do so, reconsider any section 52P determination and, to the extent that the Commission considers it necessary or desirable to do so, amend the determination, to take account of any matter referred to in subsection (2).
(4)
In this section, recommending body has the same meaning as 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, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
55J Savings provision until Commission publishes information 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 which a determination made by the Commission referred to in 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 Savings provision for existing levy regulations for services controlled under Commerce (Control of Natural Gas Services) Order 2005
(1)
Any regulations made pursuant to section 74 before the repeal of that section continue to apply to each person that is a supplier of controlled services under the Commerce (Control of Natural Gas Services) Order 2005 in respect of every financial year that precedes 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 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, in respect of those persons, and with all other necessary 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: replaced, on 26 October 2018, by section 10 of the Commerce Amendment Act 2018 (2018 No 42).
Overview and interpretation
Heading: replaced, on 26 October 2018, by section 10 of the Commerce Amendment Act 2018 (2018 No 42).
56 Overview of subpart
(1)
This subpart provides that—
(a)
specified airport services are subject to information disclosure regulation under this Part; and
(b)
negotiate/arbitrate regulation, default/customised price-quality regulation, or individual price-quality regulation may be imposed on specified airport services after an inquiry; and
(c)
other services may be declared specified airport services by Order in Council.
(2)
This section is only a guide.
Section 56: replaced, on 26 October 2018, by section 10 of the Commerce Amendment Act 2018 (2018 No 42).
56A Interpretation
(1)
In this subpart,—
aircraft and freight activities means the activities undertaken (including the facilities and services provided) to enable, within a security area or areas of the relevant airport, the servicing and maintenance of aircraft and the handling of freight transported, or to be transported, by aircraft; and includes—
(a)
the provision, within a security area or areas of the relevant airport, of any 1 or more of the following:
(i)
hangars:
(ii)
facilities and services for the refuelling of aircraft, flight catering, and waste disposal:
(iii)
facilities and services for the storing of freight:
(iv)
security, customs, and quarantine services for freight:
(b)
the holding of any facilities and assets (including land) acquired or held to provide aircraft and freight activities in the future (whether or not used for any other purpose in the meantime)
airfield activities means the activities undertaken (including the facilities and services provided) to enable the landing and take-off of aircraft; and includes—
(a)
the provision of any 1 or more of the following:
(i)
airfields, runways, taxiways, and parking aprons for aircraft:
(ii)
facilities and services for air traffic and parking apron control:
(iii)
airfield and associated lighting:
(iv)
services to maintain and repair airfields, runways, taxiways, and parking aprons for aircraft:
(v)
rescue, fire, safety, and environmental hazard control services:
(vi)
airfield supervisory and security services:
(b)
the holding of any facilities and assets (including land) acquired or held to provide airfield activities in the future (whether or not used for any other purpose in the meantime)
specified airport company means—
(a)
the company (as defined in section 2 of the Auckland Airport Act 1987) that operates Auckland International Airport or any subsidiary of, or successor to, that company that operates all or part of the airport; and
(b)
the company (as defined in section 2 of the Wellington 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; and
(c)
the company that operates Christchurch International Airport or any subsidiary of, or successor to, that company that operates all or part of the airport
specified airport services means all of the services supplied by specified airport companies in markets directly related to the following activities (whether for international or domestic flights):
(a)
aircraft and freight activities:
(b)
airfield activities:
(c)
specified passenger terminal activities:
(d)
any other services declared to be specified airport services by Order in Council made under section 56M
specified passenger terminal activities means the activities undertaken (including the facilities and services provided) in relation to aircraft passengers while those passengers are in a security area or areas of the relevant airport; and—
(a)
includes the provision, within a security area or security areas of the relevant airport, of any 1 or more of the following:
(i)
passenger seating areas, thoroughfares, and airbridges:
(ii)
flight information and public address systems:
(iii)
facilities and services for the operation of customs, immigration, and quarantine checks and control:
(iv)
facilities for the collection of duty-free items:
(v)
facilities and services for the operation of security and Police services:
(b)
includes any activities undertaken (including the facilities and services provided) in a passenger terminal to enable the check-in of aircraft passengers, including services for baggage handling:
(c)
includes the holding of any facilities and assets (including land) acquired or held to provide specified passenger terminal activities in the future (whether or not used for any other purpose in the meantime):
(d)
does not include the provision of any space for retail activities.
(2)
[Repealed]Section 56A: replaced, on 26 October 2018, by section 10 of the Commerce Amendment Act 2018 (2018 No 42).
Section 56A(1) aircraft and freight activities: inserted, on 5 April 2025, by section 486 of the Civil Aviation Act 2023 (2023 No 10).
Section 56A(1) airfield activities: inserted, on 5 April 2025, by section 486 of the Civil Aviation Act 2023 (2023 No 10).
Section 56A(1) specified airport company paragraph (c): replaced, on 5 April 2025, by section 486 of the Civil Aviation Act 2023 (2023 No 10).
Section 56A(1) specified passenger terminal activities: inserted, on 5 April 2025, by section 486 of the Civil Aviation Act 2023 (2023 No 10).
Section 56A(2): repealed, on 5 April 2025, by section 486 of the Civil Aviation Act 2023 (2023 No 10).
Specified airport services regulated under this Part
Heading: replaced, on 26 October 2018, by section 10 of the Commerce Amendment Act 2018 (2018 No 42).
56B Specified airport services declared to be regulated
Specified airport services are regulated under this Part.
Section 56B: replaced, on 26 October 2018, by section 10 of the Commerce Amendment Act 2018 (2018 No 42).
56C Specified airport services subject to information disclosure regulation
Specified airport services are subject to information disclosure regulation under this Part.
Section 56C: replaced, on 26 October 2018, by section 10 of the Commerce Amendment Act 2018 (2018 No 42).
56D Specified airport services subject to additional regulation if imposed by Order in Council
In addition to information disclosure regulation, specified airport services are subject to the type of regulation (if any) imposed by Order in Council made under section 56K.
Section 56D: replaced, on 26 October 2018, by section 10 of the Commerce Amendment Act 2018 (2018 No 42).
Duty to supply information to Secretary
Heading: inserted, on 26 October 2018, by section 10 of the Commerce Amendment Act 2018 (2018 No 42).
56E Duty to supply information to Secretary
A specified airport company must, as soon as practicable after disclosing information under this Part, supply a copy of the information to the Secretary (as defined in section 5 of the Civil Aviation Act 2023).
Section 56E: replaced, on 26 October 2018, by section 10 of the Commerce Amendment Act 2018 (2018 No 42).
Section 56E: amended, on 5 April 2025, by section 486 of the Civil Aviation Act 2023 (2023 No 10).
Commission inquiry into regulation of specified airport services
Heading: replaced, on 26 October 2018, by section 10 of the Commerce Amendment Act 2018 (2018 No 42).
56F How inquiry triggered
(1)
The Commission—
(a)
must hold an inquiry into the regulation of specified airport services if required to do so by the Minister; 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 to the Minister under section 56H.
Section 56F: replaced, on 26 October 2018, by section 10 of the Commerce Amendment Act 2018 (2018 No 42).
56G Commission inquiry
(1)
In conducting an inquiry into the regulation of specified airport services, the Commission must consider—
(a)
whether, in addition to information disclosure regulation, 1 of the following types of regulation should be imposed on the services:
(i)
negotiate/arbitrate regulation:
(ii)
default/customised price-quality regulation:
(iii)
individual price-quality regulation; and
(b)
if so, how that type of regulation should apply to specified airport companies.
(2)
As part of the inquiry, the Commission must—
(a)
determine or amend (and then apply) input methodologies for the supply of the services, in accordance with subpart 3; and
(b)
when considering whether a type of regulation might be imposed, assess the benefits of imposing different types of regulation in meeting the purpose of this Part against the costs of imposing those types of regulation.
(3)
The input methodologies must be determined or amended as soon as practicable after the inquiry is triggered.
(4)
During an inquiry, the Commission may have regard to any other matters it considers necessary or desirable for the purpose of the inquiry.
(5)
An inquiry under this section must follow the process set out in section 52J.
Section 56G: replaced, on 26 October 2018, by section 10 of the Commerce Amendment Act 2018 (2018 No 42).
56H Commission’s recommendations following inquiry
(1)
At the end of an inquiry, having considered the matters in section 56G, the Commission must make a recommendation to the Minister on whether 1 of the following should be imposed on specified airport services:
(a)
negotiate/arbitrate regulation:
(b)
default/customised price-quality regulation:
(c)
individual price-quality regulation.
(2)
If the Commission recommends imposing a type of regulation specified in subsection (1), its recommendation must state the following:
(a)
the type of regulation that is recommended:
(b)
what input methodologies apply:
(c)
if negotiate/arbitrate regulation is recommended, the material provisions of the negotiation process and arbitration process:
(d)
if default/customised price-quality regulation is recommended, the default price path and quality standards:
(e)
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 the Minister considers appropriate.
(4)
To avoid doubt, a recommendation by the Commission is not a determination of the Commission.
Section 56H: inserted, on 26 October 2018, by section 10 of the Commerce Amendment Act 2018 (2018 No 42).
Order in Council imposing additional type of regulation
Heading: inserted, on 26 October 2018, by section 10 of the Commerce Amendment Act 2018 (2018 No 42).
56I Minister must consider Commission’s recommendation
(1)
The Minister must consider any recommendation of the Commission made under section 56H.
(2)
When considering the recommendation, the Minister—
(a)
must consult with the Minister of Transport; and
(b)
may request further information or advice from the Commission.
(3)
If the Minister proposes a different type of regulation to the type that the Commission recommends, the Minister must request written advice from the Commission on what the material provisions of a section 52P determination would be likely to be under the Minister’s proposal.
(4)
Any request by the Minister under subsection (3), and the Commission’s advice on it, 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 56I: inserted, on 26 October 2018, by section 10 of the Commerce Amendment Act 2018 (2018 No 42).
56J Minister’s decision and recommendation
(1)
Having considered the Commission’s recommendation in accordance with section 56I and any written advice given following a request under section 56I(3), the Minister must—
(a)
decide whether, in addition to information disclosure regulation, 1 of the following types of regulation should be imposed on specified airport services:
(i)
negotiate/arbitrate regulation:
(ii)
default/customised price-quality regulation:
(iii)
individual price-quality regulation; and
(b)
if so, make a recommendation to the Governor-General specifying the type of regulation that should be imposed.
(2)
The Minister’s decision may be the same as, or different from, the Commission’s recommendation under section 56H.
(3)
If the Minister’s decision is different from the Commission’s recommendation, the Minister must set out the reasons for the decision and make the decision, with the reasons, publicly available.
Section 56J: inserted, on 26 October 2018, by section 10 of the Commerce Amendment Act 2018 (2018 No 42).
56K Order in Council imposing additional type of regulation
(1)
The Governor-General may, on the recommendation of the Minister made under section 56J, make an Order in Council imposing 1 of the following types of regulation on specified airport services:
(a)
negotiate/arbitrate regulation:
(b)
default/customised price-quality regulation:
(c)
individual price-quality regulation.
(2)
The order must include an expiry date (which must be no later than 20 years after the commencement date) at the close of which the order is revoked.
(3)
Despite subsection (2), the order may be earlier revoked in the manner in which it was made.
(4)
An order under this section is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
| Legislation Act 2019 requirements for secondary legislation made under this section | ||||
| Publication | PCO must publish it on the legislation website and notify it in the Gazette | LA19 s 69(1)(c) | ||
| Presentation | The Minister must present it to the House of Representatives | LA19 s 114, Sch 1 cl 32(1)(a) | ||
| Disallowance | It may be disallowed by the House of Representatives | LA19 ss 115, 116 | ||
| This note is not part of the Act. | ||||
Section 56K: inserted, on 26 October 2018, by section 10 of the Commerce Amendment Act 2018 (2018 No 42).
Section 56K(4): replaced, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
56L Commission determination about how regulation applies
(1)
As soon as practicable after an Order in Council is made under section 56K, the Commission must make a section 52P determination specifying how the type of regulation imposed by the order will apply to specified airport services.
(2)
The determination must not differ in any material respect from the recommendation under section 56H, or (if applicable) from any advice given to the Minister under section 56I(3).
Section 56L: inserted, on 26 October 2018, by section 10 of the Commerce Amendment Act 2018 (2018 No 42).
Declaring services to be specified airport services
Heading: inserted, on 26 October 2018, by section 10 of the Commerce Amendment Act 2018 (2018 No 42).
56M Order in Council declaring specified airport services
(1)
The Governor-General may, on the recommendation of the Minister, make an Order in Council declaring 1 or more services to be specified airport services for the purposes of this subpart.
(2)
Before recommending that an Order in Council be made, the Minister must be satisfied that—
(a)
the Commission has made a recommendation to the same effect; and
(b)
the Commission has consulted (without necessarily holding an inquiry) with interested parties.
(3)
Before making a recommendation under subsection (2)(a), the Commission—
(a)
must assess the benefits, in meeting the purpose of this Part, of declaring the services to be specified airport services against the costs of declaring the services to be specified airport services; and
(b)
must be satisfied that the services are supplied in a market where 1 or more of the specified airport companies have a substantial degree of market power.
(4)
An order under this section is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
| Legislation Act 2019 requirements for secondary legislation made under this section | ||||
| Publication | PCO must publish it on the legislation website and notify it in the Gazette | LA19 s 69(1)(c) | ||
| Presentation | The Minister must present it to the House of Representatives | LA19 s 114, Sch 1 cl 32(1)(a) | ||
| Disallowance | It may be disallowed by the House of Representatives | LA19 ss 115, 116 | ||
| This note is not part of the Act. | ||||
Section 56M: inserted, on 26 October 2018, by section 10 of the Commerce Amendment Act 2018 (2018 No 42).
Section 56M(4): inserted, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
Subpart 2 not limited
Heading: inserted, on 26 October 2018, by section 10 of the Commerce Amendment Act 2018 (2018 No 42).
56N Subpart 2 not limited
This subpart does not limit subpart 2, which allows for regulation to be imposed on particular goods or services.
Section 56N: inserted, on 26 October 2018, by section 10 of the Commerce Amendment Act 2018 (2018 No 42).
Subpart 12—Water services
Subpart 12: inserted, on 27 August 2025, by section 14 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57 Overview of subpart
(1)
This subpart provides that—
(a)
the following types of regulation apply to certain local government suppliers of water supply services and wastewater services:
(i)
information disclosure regulation:
(ii)
revenue threshold regulation:
(b)
those types of regulation may also be imposed on the following in accordance with the process set out in subsection (2):
(i)
1 or more other suppliers of water supply services or wastewater services:
(ii)
1 or more suppliers of stormwater services:
(c)
the following types of regulation may be imposed on 1 or more suppliers of 1 or more water services in accordance with the process set out in subsection (2):
(i)
quality regulation:
(ii)
performance requirement regulation:
(iii)
price-quality regulation.
(2)
The process for imposing regulation on 1 or more suppliers in respect of 1 or more water services involves the following steps:
Order in Council imposing regulation
(a)
the Commission may make a recommendation to the Minister under section 57G (but is not required to hold an inquiry under sections 52H to 52K):
(b)
the Minister considers the Commission’s recommendation under section 57J:
(c)
if the Minister decides to recommend regulation, an Order in Council may be made under section 57L that makes those suppliers subject to regulation and identifies the type or types of regulation that apply:
Determination
(d)
the Commission makes a section 52P determination specifying how the applicable type or types of regulation apply to a supplier.
(3)
This section is intended only as a guide to the general scheme and effect of this subpart.
Section 57: inserted, on 27 August 2025, by section 14 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57 Commission process
[Repealed]Section 57: repealed, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
57A Interpretation for this subpart
(1)
In this subpart and in Schedule 7, unless the context otherwise requires,—
local authority has the meaning given in section 5(1) of the Local Government Act 2002
stormwater service—
(a)
means the collection, treatment, drainage, or discharge of stormwater in an urban area; and
(b)
includes a service declared to be a stormwater service by an Order in Council made under section 57B; but
(c)
does not include—
(i)
a service declared not to be a stormwater service by an Order in Council made under section 57B:
(ii)
a service relating to a transport corridor
Treaty settlement obligations has the meaning given in section 4 of the Local Government (Water Services) Act 2025
wastewater service—
(a)
means the collection, treatment, storage, transmission, metering, or discharge of wastewater from consumers; and
(b)
includes a service declared to be a wastewater service by an Order in Council made under section 57B; but
(c)
does not include a service declared not to be a wastewater service by an Order in Council made under section 57B
water supply service—
(a)
means the abstraction, storage, treatment, transmission, or metering of water for supply to consumers if any of the water supplied is intended to be used as drinking water; and
(b)
includes a service declared to be a water supply service by an Order in Council made under section 57B; but
(c)
does not include a service declared not to be a water supply service by an Order in Council made under section 57B.
(2)
In subsection (1), drinking water and urban area have the meanings given in section 4 of the Local Government (Water Services) Act 2025.
(3)
In this subpart and Schedule 7, serviceability charges under section 88 of the Local Government (Water Services) Act 2025 must be treated as prices for supplying water supply services or wastewater services, as the case may be.
Section 57A: inserted, on 27 August 2025, by section 14 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
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 Order in Council declaring water services
(1)
The Governor-General may, on the recommendation of the Minister, make an Order in Council declaring—
(a)
1 or more services that involve water to be a stormwater service, a wastewater service, or a water supply service; or
(b)
1 or more services not to be a stormwater service, a wastewater service, or a water supply service.
(2)
Before recommending that an Order in Council be made, the Minister must be satisfied that—
(a)
the Commission has made a recommendation to the same effect; and
(b)
the Commission has consulted with interested parties.
(3)
Before making a recommendation under subsection (2)(a), the Commission must assess the benefits, in meeting the purpose of this Part, of the proposed declaration against the costs of the proposed declaration.
(4)
An order made under this section is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
| Legislation Act 2019 requirements for secondary legislation made under this section | ||||
| Publication | PCO must publish it on the legislation website and notify it in the Gazette | LA19 s 69(1)(c) | ||
| Presentation | The Minister must present it to the House of Representatives | LA19 s 114 | ||
| Disallowance | It may be disallowed by the House of Representatives | LA19 ss 115, 116 | ||
| This note is not part of the Act. | ||||
Section 57B: inserted, on 27 August 2025, by section 14 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
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).
Water services regulated under this Part
Heading: inserted, on 27 August 2025, by section 14 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57C Water services declared to be regulated
The following are regulated under this Part:
(a)
water supply services:
(b)
wastewater services:
(c)
stormwater services declared to be regulated by Order in Council made under section 57L.
Section 57C: inserted, on 27 August 2025, by section 14 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
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).
57D Water supply and wastewater services
(1)
Water supply services and wastewater services are subject to both of the following types of regulation under this Part if the services are supplied by a person that is, in respect of that service, a decision-making local government water service supplier:
(b)
revenue threshold regulation (see Part 3 of Schedule 7).
(2)
A decision-making local government water service supplier, in respect of a service, is a local government water service supplier that makes decisions about either or both of the following:
(a)
capital and operating expenditure on the service:
(b)
the level of charges or revenue recovery for the service.
(3)
In addition, water supply services and wastewater services are subject to any or all of the following types of regulation under this Part if that regulation is imposed by an Order in Council made under section 57L:
(a)
(b)
revenue threshold regulation (see Part 3 of Schedule 7) if subsection (1)(b) does not already apply to the service:
(c)
quality regulation (see Part 4 of Schedule 7):
(d)
performance requirement regulation (see Part 5 of Schedule 7):
(e)
price-quality regulation (see Part 6 of Schedule 7).
Section 57D: inserted, on 27 August 2025, by section 14 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57E Stormwater services
Stormwater services are subject to 1 or more of the following types of regulation under this Part if that regulation is imposed by an Order in Council made under section 57L:
(a)
information disclosure regulation (see subpart 4 and Part 2 of Schedule 7):
(b)
revenue threshold regulation (see Part 3 of Schedule 7):
(c)
quality regulation (see Part 4 of Schedule 7):
(d)
performance requirement regulation (see Part 5 of Schedule 7):
(e)
price-quality regulation (see Part 6 of Schedule 7).
Section 57E: inserted, on 27 August 2025, by section 14 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57F Watercare Services Limited, and any subsidiary of Watercare Services Limited, subject to price-quality regulation
Price-quality regulation applies to Watercare Services Limited, and any subsidiary of Watercare Services Limited, in respect of water supply services and wastewater services.
Section 57F: inserted, on 27 August 2025, by section 14 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Commission may recommend further regulation or deregulation
Heading: inserted, on 27 August 2025, by section 14 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57G Commission may recommend further regulation or deregulation
(1)
The Commission may recommend to the Minister that regulation should be imposed (or removed) as follows in respect of 1 or more suppliers:
(a)
water supply services, wastewater services, or both, should (or should no longer) be subject to 1 or more of the following types of regulation:
(i)
information disclosure regulation (but see subsection (2)):
(ii)
revenue threshold regulation (but see subsection (2)):
(iii)
quality regulation:
(iv)
performance requirement regulation:
(v)
price-quality regulation:
(b)
stormwater services should (or should no longer) be subject to 1 or more of the following types of regulation:
(i)
information disclosure regulation:
(ii)
revenue threshold regulation:
(iii)
quality regulation:
(iv)
performance requirement regulation:
(v)
price-quality regulation.
(2)
A recommendation for the purposes of subsection (1)(a)(i) or (ii) in respect of a water service must not apply to a person that is, in respect of that service, a regulated supplier to which section 57D(1) applies.
(3)
The Minister must publish the Commission’s recommendation, and may do so in whatever way the Minister considers appropriate.
(4)
A recommendation by the Commission is not a determination of the Commission.
Section 57G: inserted, on 27 August 2025, by section 14 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57H Process for Commission’s recommendation
(1)
Before making a recommendation under section 57G, the Commission must—
(a)
consider the following matters:
(i)
whether imposing (or removing suppliers from) the regulation would better promote the purpose of this Part:
(ii)
the nature of the water services delivery structure (to the extent that the Commission considers relevant):
(iii)
whether revenue threshold regulation applies to the relevant water services and, if so, the extent of regulated suppliers’ performance against each revenue threshold that applies:
(iv)
any other matters the Commission considers relevant; and
(b)
consult interested parties (but see section 57M).
(2)
For the purposes of subsection (1)(a)(ii), the nature of the water services delivery structure may include any of the following (to the extent that the Commission considers those matters are relevant):
(a)
the types of water services being supplied:
(b)
the location of the suppliers:
(c)
the size of the suppliers:
(d)
the governance arrangements of the suppliers:
(e)
the type of delivery model adopted under subpart 1 of Part 2 of the Local Government (Water Services) Act 2025.
(3)
If the Commission recommends to the Minister that 1 or more suppliers be subject to 1 or more types of regulation, the recommendation must—
(a)
describe each supplier that is the subject of the recommendation; and
(b)
describe the water services provided by the supplier that the Commission considers should be regulated; and
(c)
specify the 1 or more types of regulation that the Commission considers the supplier should be subject to and when the relevant section 52P determinations should apply.
(4)
Subsection (3) applies with all necessary modifications to a recommendation that 1 or more suppliers should no longer be subject to 1 or more types of regulation.
Section 57H: inserted, on 27 August 2025, by section 14 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57I Inquiry not required
For the purposes of this subpart, the Commission may act without holding an inquiry under sections 52H to 52K.
Section 57I: inserted, on 27 August 2025, by section 14 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Order in Council
Heading: inserted, on 27 August 2025, by section 14 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57J Minister’s consideration
(1)
The Minister must consider any recommendation of the Commission made under section 57G.
(2)
As part of that consideration, the Minister—
(a)
must consult the Minister who, under the authority of any warrant or with the authority of the Prime Minister, is for the time being responsible for the administration of the Local Government Act 2002; and
(b)
may request further information or advice from the Commission.
Section 57J: inserted, on 27 August 2025, by section 14 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57K Minister’s decision and recommendation
(1)
After considering the Commission’s recommendation in accordance with section 57J, the Minister must—
(a)
decide whether, in addition to the regulation referred to in sections 57D(1) and 57F, further regulation should be imposed (or removed from suppliers) under this subpart; and
(b)
if so,—
(i)
decide which type or types of regulation are to apply in relation to particular water services; and
(ii)
decide which suppliers should (or should no longer) be subject to the regulation; and
(iii)
make a recommendation to that effect.
(2)
The Minister may not decide that regulation should be imposed (or removed) under this subpart unless the Commission has considered and recommended that, but the Minister’s decision may otherwise be the same as, or different from, the Commission’s recommendation under section 57G.
(3)
If the Minister’s decision is different from the Commission’s recommendation, the Minister must set out the reasons for the decision and make the decision, with the reasons, publicly available.
Section 57K: inserted, on 27 August 2025, by section 14 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57L Order in Council imposing regulation
(1)
The Governor-General may, on the recommendation of the Minister made under section 57K, make an Order in Council imposing (or removing) regulation on 1 or more suppliers in respect of 1 or more water services.
(2)
The order must—
(a)
declare that 1 or more suppliers are regulated (or no longer regulated) in respect of 1 or more water services; and
(b)
state which type or types of regulation the suppliers are (or are no longer) subject to in respect of those services.
(3)
The order may identify the water services it relates to by reference to services—
(a)
supplied in specified regions, areas, or localities in New Zealand; or
(b)
supplied in different quantities, qualities, grades, or classes; or
(c)
supplied to or for the use of different persons or classes of persons; or
(d)
described in any or all of paragraphs (a) to (c).
(4)
Subsection (3) applies so that any part or element of services can be dealt with separately.
(5)
An order made under this section that imposes regulation must include an expiry date, which must be a date not later than 20 years after the date of its commencement.
(6)
An order made under this section may remove regulation only if the regulation has been imposed by an order made under this section.
(7)
An order made under this section is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
| Legislation Act 2019 requirements for secondary legislation made under this section | ||||
| Publication | PCO must publish it on the legislation website and notify it in the Gazette | LA19 s 69(1)(c) | ||
| Presentation | The Minister must present it to the House of Representatives | LA19 s 114 | ||
| Disallowance | It may be disallowed by the House of Representatives | LA19 ss 115, 116 | ||
| This note is not part of the Act. | ||||
Section 57L: inserted, on 27 August 2025, by section 14 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57M Commission not required to consult on non-material amendment
An Order in Council made under section 57L may be amended in a non-material way without prior consultation under section 57H(1)(b).
Section 57M: inserted, on 27 August 2025, by section 14 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Determinations
Heading: inserted, on 27 August 2025, by section 14 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57N Commission determination about how regulation applies
(1)
The Commission must make a section 52P determination specifying how a type of regulation imposed by this subpart will apply,—
(a)
in the case of section 57D(1)(a) (information disclosure),—
(i)
within 6 months after this section comes into force; or
(ii)
before a date specified in a notice issued under subsection (3):
(b)
in the case of sections 57D(3) and 57E, as soon as practicable after an Order in Council is made under section 57L:
(c)
in the case of section 57F, see the transitional provisions in Part 6 of Schedule 1AA relating to the Watercare charter.
(2)
Despite section 52P, the Commission has a discretion to decide whether and, if so, when to make a section 52P determination specifying how revenue threshold regulation will apply.
(3)
The following applies for the purposes of subsection (1)(a)(ii):
(a)
the Minister may, by notice in the Gazette, specify a date earlier or later than 6 months after this section comes into force if the Minister considers it to be in the public interest to do so:
(b)
a copy of the notice must be made publicly available:
(c)
before issuing the notice, the Minister must consult the Commission on a draft of the notice.
Section 57N: inserted, on 27 August 2025, by section 14 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57O Section 52P determinations apply to each type of regulation imposed
(1)
Section 52P applies under this subpart with necessary modifications with the effect that, for each type or types of regulation imposed under this subpart, the Commission must make a section 52P determination specifying how the relevant type of regulation applies to a supplier of the regulated service.
(2)
This section is subject to section 57N.
Section 57O: inserted, on 27 August 2025, by section 14 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57P Section 52P determinations without input methodologies
(1)
The Commission may make a section 52P determination relating to information disclosure regulation or price-quality regulation without determining an input methodology.
(2)
However, subsection (1) applies only to the extent that the section 52P determination applies to a period before the relevant date (as defined in clause 32 of Schedule 7).
Guidance note
Clause 32 of Schedule 7 provides for when the Commission must determine an input methodology.
Section 57P: inserted, on 27 August 2025, by section 14 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57Q Additional matters relating to section 52P determinations
(1)
In addition to the matters in section 52P(3), a section 52P determination made for the purposes of this subpart must—
(a)
specify the regulated suppliers to which it applies; and
(b)
specify the water services in respect of which it applies.
(2)
For the purposes of subsection (1)(a), the determination may relate to all regulated suppliers or to 1 or more regulated suppliers (for example, a determination relating to price-quality regulation may apply to a particular regulated supplier and set price-quality paths that are specific to that supplier).
(3)
For the purposes of subsection (1)(b), the determination may relate to all water services or to 1 or more types or parts of a water service (for example, a determination relating to price-quality regulation may apply to a particular part of a service and set price-quality paths that are specific to that service).
(4)
A section 52P determination relating only to price-quality regulation may last for more than 1 regulatory period and remains in force until it is revoked.
Section 57Q: inserted, on 27 August 2025, by section 14 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Other functions of Commission in relation to water services
Heading: inserted, on 27 August 2025, by section 14 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57R Water efficiency
In performing or exercising its functions and powers under this subpart, the Commission may take into account the efficient use of water resources in relation to water services, including reuse, conservation, and demand management.
Section 57R: inserted, on 27 August 2025, by section 14 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57S Commission must take into account duties owed by suppliers of water services
The Commission must take into account the duties owed by suppliers of water services under other legislation or instruments or under Treaty settlement obligations (for example, under water quality standards and requirements to support and enable planning processes, growth, and housing and urban development) when applying this subpart in relation to water services.
Section 57S: inserted, on 27 August 2025, by section 14 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57T Commission’s functions do not extend to regulating safety of drinking water
The Commission’s functions under this subpart do not extend to regulating the safety of drinking water (see section 11 of the Water Services Authority—Taumata Arowai Act 2020, which describes the role of the Water Services Authority—Taumata Arowai in that regard).
Compare: 2023 No 54 s 4(5)
Section 57T: inserted, on 27 August 2025, by section 14 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Additional matters
Heading: inserted, on 27 August 2025, by section 14 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57U Commission may grant exemption to local authority
(1)
The Commission may make a determination that exempts a local authority from compliance with any provision or provisions of this subpart in respect of 1 or more water services if the Commission is satisfied that—
(a)
the costs of complying with the provision or provisions outweigh the benefits; and
(b)
the extent of the exemption is not broader than is reasonably necessary to address the matters that gave rise to the exemption.
(2)
The Commission may make the determination after receiving an application from a local authority or on its own initiative.
(3)
The Commission may grant the exemption on the terms and conditions (if any) that it thinks fit.
(4)
The Commission’s reasons for making the determination (including why the exemption is appropriate) must be published together with the determination.
(5)
A determination made under this section may continue in force for not more than 20 years (and at the close of the date that is 20 years after the determination first comes into force, the determination must be treated as having been revoked unless it is sooner revoked).
(6)
A determination made under this section is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
| Legislation Act 2019 requirements for secondary legislation made under this section | ||||
| Publication | The maker must publish it in accordance with the Legislation (Publication) Regulations 2021 | LA19 s 74(1)(aa) | ||
| Presentation | The Minister must present it to the House of Representatives | LA19 s 114 | ||
| Disallowance | It may be disallowed by the House of Representatives | LA19 ss 115, 116 | ||
| This note is not part of the Act. | ||||
Section 57U: inserted, on 27 August 2025, by section 14 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57V Additional matters relating to regulation of water services
The provisions set out in Schedule 7 have effect according to their terms.
Section 57V: inserted, on 27 August 2025, by section 14 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Part 4A Consumer protection in relation to water services
Part 4A: inserted, on 27 August 2025, by section 15 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Subpart 1—Overview, purpose, interpretation, and application of this Part
Subpart 1: inserted, on 27 August 2025, by section 15 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57W Overview of this Part
(1)
In this Part,—
(a)
this subpart contains preliminary provisions in relation to water services and water services suppliers:
(b)
subpart 2 enables the Commission, in relation to water services, to include requirements relating to consumer protection in any information disclosure requirements that apply under Part 4:
(c)
subpart 3 makes provision for other consumer protection measures in relation to water services, including—
(i)
regulations relating to consumer protection (including regulations about consumer complaints and dispute resolution); and
(ii)
service quality codes.
(2)
This section is intended only as a guide to the general scheme and effect of this Part.
Compare: 2023 No 54 s 57
Section 57W: inserted, on 27 August 2025, by section 15 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57X Purpose of this Part
The purpose of this Part is to provide for—
(a)
consumer protection by water services suppliers to which this Part applies; and
(b)
improvements in the quality of service provided to consumers by those suppliers, to reflect consumer demands.
Compare: 2023 No 54 s 58
Section 57X: inserted, on 27 August 2025, by section 15 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57Y Interpretation of this Part
(1)
In this Part, unless the context otherwise requires,—
Commission service quality code means a code made by the Commission under section 57ZF
complaint means an expression of dissatisfaction
service or water services means any of the water services to which this Part applies
supplier or water services supplier means a supplier that is a regulated supplier in relation to water services to which this Part applies
Water Services Authority—Taumata Arowai means the Water Services Authority—Taumata Arowai established by section 8 of the Water Services Authority—Taumata Arowai Act 2020.
(2)
Any term or expression that is defined in Part 4 and used, but not defined, in this Part has the same meaning as in Part 4.
Compare: 2023 No 54 s 59
Section 57Y: inserted, on 27 August 2025, by section 15 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57Z Application of this Part
This Part applies to—
(a)
water services to which information disclosure regulation applies; and
(b)
regulated suppliers of those services.
Section 57Z: inserted, on 27 August 2025, by section 15 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Subpart 2—Information disclosure requirements relating to protecting consumers of water services
Subpart 2: inserted, on 27 August 2025, by section 15 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57ZA Information disclosure requirements relating to consumer protection
(1)
The Commission may include requirements relating to protecting consumers of water services in any information disclosure regulation that applies under subpart 12 of Part 4 (see sections 57D and 57E).
(2)
Those requirements may require the disclosure of information about consumers’ experience of the services provided by their supplier, including—
(a)
the number of complaints received by the supplier:
(b)
the nature of those complaints:
(c)
when each complaint was received and how long it took to resolve it:
(d)
how the complaint was resolved.
(3)
This section does not limit the other powers of the Commission under this or any other Act.
Section 57ZA: inserted, on 27 August 2025, by section 15 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Subpart 3—Other measures relating to protecting consumers of water services
Subpart 3: inserted, on 27 August 2025, by section 15 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Regulations
Heading: inserted, on 27 August 2025, by section 15 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57ZB Regulations relating to protecting consumers of water services
(1)
The Governor-General may, on the recommendation of the Minister, make regulations relating to protecting consumers of water services, including regulations for all or any of the following:
(a)
prescribing the information that water services suppliers must provide to consumers, including how a consumer may make a complaint to a supplier:
(b)
prescribing requirements relating to consumer complaints that water services suppliers must meet, including—
(i)
requirements for investigating consumer complaints:
(ii)
the time frame for investigating consumer complaints:
(iii)
notifying decisions on consumer complaints (including any action that was taken to resolve the matters that gave rise to the complaint):
(iv)
records that suppliers must keep about consumer complaints:
(c)
prescribing requirements for annual reporting about consumer complaints to the Commission by water services suppliers, including the number of complaints that have been received and the outcome of complaints, including any action taken:
(d)
prescribing requirements relating to how, and in what manner, water services suppliers must provide access to an external consumer dispute resolution process, for example, by setting up a regulated scheme, or requiring suppliers to appoint their own scheme subject to any criteria set in the regulations:
(e)
prescribing offences for the breach of the regulations:
(f)
prescribing the maximum fine for each offence prescribed under paragraph (e), which must not,—
(i)
in the case of an individual, exceed $10,000; and
(ii)
in any other case, exceed $200,000:
(g)
providing for any other matters relating to consumer protection in respect of water services that the Minister thinks necessary for the purpose of this Part.
(2)
The Minister may make a recommendation on the Minister’s own initiative or following a recommendation from the Commission.
(3)
The Commission may make a recommendation to the Minister only after—
(a)
considering—
(i)
whether consumer interests are adequately protected, and the purpose of this Part is adequately promoted, or would be better protected or promoted by the proposed regulations; and
(ii)
whether the proposed regulations would unduly duplicate other requirements that apply to water services and water services suppliers; and
(iii)
any other matters that the Commission considers relevant; and
(b)
consulting the Water Services Authority—Taumata Arowai and other interested persons.
(4)
The Minister may make a recommendation only—
(a)
if the Minister is satisfied that the proposed regulations would better achieve the purpose of this Part; and
(b)
if the Minister is satisfied that the proposed regulations would not unduly duplicate other requirements that apply to water services and suppliers; and
(c)
after consulting the Minister responsible for the Water Services Authority—Taumata Arowai, the Minister responsible for the administration of the Water Services Act 2021, and the Commission; and
(d)
in the case of regulations relating to external dispute resolution, if the Minister is satisfied that consumers of water services do not have, and are unlikely to have, adequate dispute resolution procedures unless the proposed regulations are made.
(5)
Regulations made under this section are secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
| Legislation Act 2019 requirements for secondary legislation made under this section | ||||
| Publication | PCO must publish it on the legislation website and notify it in the Gazette | LA19 s 69(1)(c) | ||
| Presentation | The Minister must present it to the House of Representatives | LA19 s 114 | ||
| Disallowance | It may be disallowed by the House of Representatives | LA19 ss 115, 116 | ||
| This note is not part of the Act. | ||||
Section 57ZB: inserted, on 27 August 2025, by section 15 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Service quality codes
Heading: inserted, on 27 August 2025, by section 15 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57ZC Purpose of service quality code
The purpose of a service quality code is to improve service quality to reflect the demands of consumers of water services.
Compare: 2001 No 103 s 233
Section 57ZC: inserted, on 27 August 2025, by section 15 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57ZD Commission may issue guidelines to industry about service quality codes
The Commission may issue guidelines to the water services industry on any matters relating to service quality codes, including advice on what matters are appropriately dealt with by service quality codes.
Compare: 2001 No 103 s 234
Section 57ZD: inserted, on 27 August 2025, by section 15 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57ZE Commission review of industry service quality codes
(1)
The Commission may, at any time, review an industry service quality code.
(2)
The Commission may require the following persons to provide the Commission with any information relevant to the industry service quality code under review:
(a)
the Water Services Authority—Taumata Arowai:
(b)
suppliers to whom the code applies.
(3)
After each review, the Commission must—
(a)
advise the Water Services Authority—Taumata Arowai, the dispute resolution provider for the code (if any), and the Minister of any recommendations for improving the code and of any recommendations for creating a new code; and
(b)
advise the Minister of whether any previous recommendations have been implemented; and
(c)
advise the Minister of whether, in the Commission’s opinion,—
(i)
the code fails to achieve the purpose of this Part; or
(ii)
a Commission service quality code would better achieve the purpose of this Part.
Compare: 2001 No 103 s 234
Section 57ZE: inserted, on 27 August 2025, by section 15 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57ZF Commission may make Commission service quality code
(1)
The Commission may make a Commission service quality code in relation to the provision of 1 or more types of service to which this Part applies.
(2)
The Commission may make that code on the Commission’s own initiative or following a recommendation from the Minister.
(3)
The Commission may make a code, and the Minister may recommend a code, under this section only if—
(a)
no industry service quality code has been made in relation to the service; or
(b)
an industry service quality code has been made in relation to the service, but in the Commission’s or the Minister’s opinion—
(i)
the code fails to achieve the purpose of this Part; or
(ii)
a Commission service quality code would better achieve the purpose of this Part.
(4)
If the Commission intends to make a Commission service quality code, the Commission must, before making the code, provide a report to the Minister containing the reasons for making the code and specifying the provision of this section that applies.
(5)
A Commission service quality code is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
Compare: 2001 No 103 s 236; 2023 No 54 s 66
| Legislation Act 2019 requirements for secondary legislation made under this section | ||||
| Publication | The maker must publish it in accordance with the Legislation (Publication) Regulations 2021 | LA19 s 74(1)(aa) | ||
| Presentation | The Minister must present it to the House of Representatives | LA19 s 114 | ||
| Disallowance | It may be disallowed by the House of Representatives | LA19 ss 115, 116 | ||
| This note is not part of the Act. | ||||
Section 57ZF: inserted, on 27 August 2025, by section 15 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57ZG Contents of Commission service quality code
(1)
A Commission service quality code must—
(a)
specify which services it applies to; and
(b)
specify which suppliers it applies to; and
(c)
promote the purpose of this Part.
(2)
The code may (without limitation) do 1 or more of the following:
(a)
specify a consumer’s rights when they make a complaint to a supplier:
(b)
specify the type and frequency of communications that a supplier must have with consumers about—
(i)
restrictions or interruptions of water services; and
(ii)
the time taken to respond to water services restrictions or interruptions and faults:
(c)
contain rules about the transparency of billing practices, and the way in which suppliers must respond to account queries:
(d)
set out the types of redress available to consumers when the quality of service does not meet appropriate standards (for example, in relation to pressure flow rates):
(e)
specify conditions for providing services to consumers who are experiencing hardship or who have other vulnerabilities (for example, the obligations of suppliers when responding to non-payment by consumers):
(f)
specify requirements for consulting consumers:
(g)
provide for any other matter that the Commission considers appropriate.
Compare: 2023 No 54 s 67
Section 57ZG: inserted, on 27 August 2025, by section 15 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57ZH Suppliers must comply with Commission service quality code
Suppliers to which a Commission service quality code applies must comply with the code.
Compare: 2023 No 54 s 68
Section 57ZH: inserted, on 27 August 2025, by section 15 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57ZI Process for making or amending Commission service quality code
(1)
To make a Commission service quality code, the Commission must—
(a)
give public notice of the process that it will follow to make the code; and
(b)
consult the Water Services Authority—Taumata Arowai and other interested persons; and
(c)
give public notice of a draft code.
(2)
A person is entitled to make a submission to the Commission not later than 30 working days after the date on which the Commission gives public notice of the draft code.
(3)
The Commission must—
(a)
take reasonable steps to identify classes of vulnerable consumers; and
(b)
consider the impact of the provision of services on vulnerable consumers and take the interests of those persons into account when making the code.
(4)
The Commission may make the code only if satisfied that the draft code meets all the requirements set out in this subpart.
(5)
The Commission may amend or revoke and replace the code if the Commission considers that the code should be changed to better promote the purpose of this Part.
(6)
The same procedure that applies to making a code in subsections (1) to (4) must be followed to make an amendment or a revocation and replacement, with any necessary modifications, except that subsections (1) to (4) do not apply if the Commission is satisfied that an amendment is non-material.
Compare: 2023 No 54 s 69
Section 57ZI: inserted, on 27 August 2025, by section 15 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Compliance
Heading: inserted, on 27 August 2025, by section 15 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57ZJ Commission must monitor compliance
(1)
The Commission—
(a)
must monitor compliance by suppliers with any requirements set out in regulations under this Part or in a Commission service quality code; and
(b)
in doing so, may have regard to the scale, complexity, and risk profile of a supplier or the type of water services being provided by the supplier.
(2)
For the purpose of monitoring compliance with any of those requirements, the Commission may, in addition to exercising its powers under section 98, issue a written notice to a supplier requiring it to provide any or all of the following:
(a)
a written statement of whether the supplier has complied with the requirement:
(b)
a report on the written statement that is signed by an auditor in accordance with any form specified by the Commission:
(c)
sufficient information to enable the Commission to properly determine whether the requirement has been complied with:
(d)
a certificate in the form specified by the Commission, and signed by at least 1 board member of the supplier or, if there is no board, the person who operates the supplier, confirming the truth and accuracy of any information provided under this section.
Compare: 2023 No 54 s 79
Section 57ZJ: inserted, on 27 August 2025, by section 15 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57ZK When court may make pecuniary penalty order
(1)
The court may, on the application of the Commission, order a person to pay to the Crown a pecuniary penalty if the court is satisfied that the person has—
(a)
contravened a Commission service quality code; or
(b)
attempted to contravene, or been involved in a contravention of, a Commission service quality code.
(2)
A supplier may not be liable to both a pecuniary penalty under this section and a fine under section 57ZP in respect of the same conduct.
Compare: 2023 No 54 s 83
Section 57ZK: inserted, on 27 August 2025, by section 15 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57ZL Maximum amount of pecuniary penalty
The maximum amount of a pecuniary penalty under section 57ZK is $300,000 for—
(a)
a contravention of the service quality code under section 57ZK(1)(a):
(b)
an attempted contravention of the service quality code under section 57ZK(1)(b):
(c)
involvement in the contravention of the service quality code under section 57ZK(1)(b).
Compare: 2023 No 54 s 84
Section 57ZL: inserted, on 27 August 2025, by section 15 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57ZM Court may make compensatory orders for contravention of Commission service quality code
(1)
If the court orders a person to pay a pecuniary penalty order under section 57ZK in respect of a contravention of a Commission service quality code, the court may, in addition, order the person to pay compensation to any person who has suffered, or is likely to suffer, loss or damage as a result of the contravention (an aggrieved person).
(2)
An application for an order under this section may be made by the Commission or any aggrieved person.
(3)
The court may make a compensatory order whether or not the aggrieved person is a party to the proceeding.
Compare: 2023 No 54 s 87
Section 57ZM: inserted, on 27 August 2025, by section 15 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57ZN Court may grant injunctions for contravention of Commission service quality code
The court may, on application by the Commission or any other person, grant an injunction—
(a)
restraining a person from engaging in conduct that constitutes or would constitute a contravention, an attempted contravention, or involvement in a contravention of a Commission service quality code; or
(b)
requiring a person to do a thing if—
(i)
that person has refused or failed, is refusing or failing, or is proposing to refuse or fail, to do that thing; and
(ii)
the refusal or failure was, is, or would be a contravention of an information disclosure requirement or a Commission service quality code.
Compare: 2023 No 54 s 89
Section 57ZN: inserted, on 27 August 2025, by section 15 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57ZO Order requiring regulations to be complied with
(1)
The court may, on application by the Commission, order a supplier to comply with any regulations made under this subpart that apply to the supplier.
(2)
An order under this section must specify the date by which, or period within which, the supplier must comply with the requirement.
Compare: 2023 No 54 s 92
Section 57ZO: inserted, on 27 August 2025, by section 15 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57ZP Offence relating to Commission service quality codes
(1)
A person commits an offence if—
(a)
the person, knowing that particular services are subject to a Commission service quality code, intentionally contravenes a code requirement in respect of the services; or
(b)
the person is subject to an order under section 57ZO and fails to comply with the order.
(2)
A person who commits an offence under subsection (1) is liable on conviction to a fine not exceeding $200,000, in the case of an individual, or $1 million, in any other case.
Compare: 2023 No 54 s 102
Section 57ZP: inserted, on 27 August 2025, by section 15 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Additional remedies in relation to failure to comply with Commission service quality code
Heading: inserted, on 27 August 2025, by section 15 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57ZQ Overview of sections 57ZR to 57ZT
Sections 57ZR to 57ZT set out orders that the court may make for breaches of a Commission service quality code.
Compare: 2023 No 54 s 105
Section 57ZQ: inserted, on 27 August 2025, by section 15 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57ZR Order to disclose information
(1)
The court may make either or both of the following orders if the court is satisfied, on the application of the Commission, that a person has failed without reasonable excuse to comply with a Commission service quality code:
(a)
an order requiring that person, or any other person involved in the failure to comply, to disclose to the public, or to a particular person or class of persons, the information or class of information that is specified in the order, being information that is in the possession of the person to whom the order is directed or to which that person has access:
(b)
an order requiring that person, or any other person involved in the failure to comply, to publish corrective statements the terms of which are specified in, or are to be determined in accordance with, the order.
(2)
The information must be disclosed or published—
(a)
in the manner and at the times that are specified in the order; and
(b)
at the person’s own expense.
(3)
The court may hear and determine an application under subsection (1) in conjunction with any other proceedings under this Part.
Compare: 2023 No 54 s 106
Section 57ZR: inserted, on 27 August 2025, by section 15 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57ZS General order for failure to comply with Commission service quality code
(1)
The court may make 1 or more of the following orders if the court is satisfied, on the application of the Commission, that a person (person X) has failed without reasonable excuse to comply with a Commission service quality code:
(a)
an order directing person X to refund money or return property to any other person:
(b)
an order directing person X to pay to any other person the amount of any loss or damage caused to that other person by the conduct of person X:
(c)
an order directing person X, at person X’s own expense, to supply a service to any other person:
(d)
an order declaring all or part of a contract made between person X and any other person, or a collateral arrangement relating to such a contract,—
(i)
to be void; and
(ii)
if the court thinks fit, to have been void at all times on and after a date specified in the order, which may be before the date on which the order is made:
(e)
an order in respect of a contract made between person X and any other person, or a collateral arrangement relating to such a contract,—
(i)
varying the contract or the arrangement in the manner specified in the order; and
(ii)
if the court thinks fit, declaring the varied contract or arrangement to have had effect on and after a date specified in the order, which may be before the date on which the order is made.
(2)
The court may hear and determine an application under subsection (1) in conjunction with any other proceedings under this Part.
Compare: 2023 No 54 s 107
Section 57ZS: inserted, on 27 August 2025, by section 15 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57ZT Other order for failure to comply with Commission service quality code
(1)
The court may, if the court is satisfied, on the application of the Commission or a consumer, that a person has failed without reasonable excuse to comply with a Commission service quality code, make an order directing the person, at the person’s own expense, to supply a service to a consumer.
(2)
The court may hear and determine an application under subsection (1) in conjunction with any other proceedings under this Part.
Compare: 2023 No 54 s 108
Section 57ZT: inserted, on 27 August 2025, by section 15 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57ZU Remedies
(1)
Sections 79A, 87(5) and (6), and 87A(3) apply in respect of proceedings under this subpart.
(2)
For the purposes of this Act, the remedies set out in sections 57ZR to 57ZT are civil liability remedies.
Compare: 2023 No 54 s 109
Section 57ZU: inserted, on 27 August 2025, by section 15 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57ZV Application of Part 6 undertakings and injunction provisions
The following provisions of this Act apply with any necessary modifications in respect of a contravention of any regulations made under this Part or a Commission service quality code:
(a)
section 74A (Commission may accept undertakings):
(b)
section 74B (matters included in undertakings):
(c)
section 74C (enforcement of undertakings):
(d)
sections 88 to 90 (injunctions generally).
Compare: 2023 No 54 s 136
Section 57ZV: inserted, on 27 August 2025, by section 15 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Other provisions
Heading: inserted, on 27 August 2025, by section 15 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57ZW Commission must take into account duties owed by suppliers of water services
The Commission must take into account the duties owed by suppliers of water services under other legislation or instruments or under Treaty settlement obligations (for example, under water quality standards and requirements to support and enable planning processes, growth, and housing and urban development) when applying this Part in relation to water services.
Section 57ZW: inserted, on 27 August 2025, by section 15 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57ZX Commission’s functions do not extend to regulating safety of drinking water
The Commission’s functions under this Part do not extend to regulating the safety of drinking water (see section 11 of the Water Services Authority—Taumata Arowai Act 2020, which describes the role of the Water Services Authority—Taumata Arowai in that regard).
Compare: 2023 No 54 s 4(5)
Section 57ZX: inserted, on 27 August 2025, by section 15 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
57ZY Levies
(1)
Regulations made under section 53ZE may provide for levies to recover the costs of performing the Commission’s functions, powers, and duties under this Part, and of collecting the levy money.
(2)
In that case, section 53ZE applies in full as if those costs related to Part 4.
Section 57ZY: inserted, on 27 August 2025, by section 15 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Part 4A Provisions applicable to electricity industry
[Repealed]Part 4A: 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 repeal), on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57D Interpretation
[Repealed]Section 57D: 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 repeal), on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57DAA Meaning of electricity lines business
[Repealed]Section 57DAA: 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 repeal), 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 repeal), 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]Section 57DA: 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 repeal), 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]Section 57DB: 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 repeal), 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]Section 57DC: 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 repeal), 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]Section 57DD: 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 repeal), on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57DE Levies during transition in jurisdiction
[Repealed]Section 57DE: 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 repeal), on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57DF Ministerial powers
[Repealed]Section 57DF: 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 repeal), on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
Subpart 1—Controlled goods or services
[Repealed]Subpart 1: 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 repeal), on 1 April 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 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 repeal), 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]Section 57F: 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 repeal), on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57G Thresholds for declaration of control
[Repealed]Section 57G: 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 repeal), 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]Section 57GA: 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 repeal), 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]Section 57GB: 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 repeal), on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57GC Amendments to, or replacement of, material incorporated by reference to be of same general character as original material
[Repealed]Section 57GC: 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 repeal), on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57GD Proof of material incorporated by reference
[Repealed]Section 57GD: 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 repeal), 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]Section 57GE: 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 repeal), on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57GF Requirement to consult
[Repealed]Section 57GF: 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 repeal), on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57GG Access to material incorporated by reference
[Repealed]Section 57GG: 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 repeal), 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]Section 57H: 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 repeal), on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57I Process before declaration made
[Repealed]Section 57I: 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 repeal), on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57J Effect of declaration of control
[Repealed]Section 57J: 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 repeal), on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57K Priorities
[Repealed]Section 57K: 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 repeal), 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 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 repeal), on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57M Authorisations and undertakings
[Repealed]Section 57M: 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 repeal), 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]Section 57MA: 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 repeal), on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57N Commission may lift control
[Repealed]Section 57N: 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 repeal), 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]Section 57O: repealed, on 18 October 2004, by section 10(1) of the Commerce Amendment Act (No 2) 2004 (2004 No 82).
57P Authorisations in respect of Transpower’s pricing methodology
[Repealed]Section 57P: repealed, on 18 October 2004, by section 10(1) of the Commerce Amendment Act (No 2) 2004 (2004 No 82).
57Q Authorisations and undertakings
[Repealed]Section 57Q: repealed, on 18 October 2004, by section 10(1) of the Commerce Amendment Act (No 2) 2004 (2004 No 82).
57R Enforcement of authorisations
[Repealed]Section 57R: repealed, on 18 October 2004, by section 10(1) of the Commerce Amendment Act (No 2) 2004 (2004 No 82).
57S Revocation of authorisations
[Repealed]Section 57S: repealed, on 18 October 2004, by section 10(1) of the Commerce Amendment Act (No 2) 2004 (2004 No 82).
Subpart 3—Information disclosure
[Repealed]Subpart 3: 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 repeal), on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57T Information disclosure
[Repealed]Section 57T: 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 repeal), on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57U Information to be supplied to Commerce Commission
[Repealed]Section 57U: 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 repeal), 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 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 repeal), 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]Section 57W: 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 repeal), on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
Subpart 4—Asset valuations
[Repealed]Subpart 4: 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 repeal), on 1 April 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]Section 57X: repealed, on 18 October 2004, by section 11(1) of the Commerce Amendment Act (No 2) 2004 (2004 No 82).
57Y Interpretation
[Repealed]Section 57Y: repealed, on 18 October 2004, by section 11(1) of the Commerce Amendment Act (No 2) 2004 (2004 No 82).
57Z Large electricity line owners must supply valuation to Commerce Commission
[Repealed]Section 57Z: repealed, on 18 October 2004, by section 11(1) of the Commerce Amendment Act (No 2) 2004 (2004 No 82).
57ZA Comprehensive audit of asset values of large electricity line owners
[Repealed]Section 57ZA: repealed, on 18 October 2004, by section 11(1) of the Commerce Amendment Act (No 2) 2004 (2004 No 82).
57ZB Procedure after audit of asset values carried out
[Repealed]Section 57ZB: repealed, on 18 October 2004, by section 11(1) of the Commerce Amendment Act (No 2) 2004 (2004 No 82).
57ZC Outcome of audit of asset values
[Repealed]Section 57ZC: repealed, on 18 October 2004, by section 11(1) of the Commerce Amendment Act (No 2) 2004 (2004 No 82).
Review of valuation methodologies[Repealed]
Heading: repealed, on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57ZD Review of valuation methodologies
[Repealed]Section 57ZD: 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 repeal), 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]Section 57ZE: 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 repeal), on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
Subpart 5—General provisions
[Repealed]Subpart 5: 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 repeal), on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57ZF Powers of Commission
[Repealed]Section 57ZF: 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 repeal), on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57ZG Powers of entry and inspection
[Repealed]Section 57ZG: 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 repeal), on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57ZH Authorised persons to prove identity
[Repealed]Section 57ZH: 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 repeal), on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57ZI Offence to obstruct authorised persons
[Repealed]Section 57ZI: 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 repeal), on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57ZJ Other offences
[Repealed]Section 57ZJ: 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 repeal), on 1 April 2009, by section 5 of the Commerce Amendment Act 2008 (2008 No 70).
57ZK Levy of electricity lines businesses
[Repealed]Section 57ZK: 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 repeal), 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 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 enter into the contract or arrangement, or arrive at the understanding.
(2)
A person who wishes to give effect to a provision of a contract or arrangement or understanding to which that person considers 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 to the provision of the contract or arrangement or understanding.
(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 do so, and the Commission may grant an authorisation for that person to carry out or enforce the covenant.
(5)
[Repealed](6)
[Repealed](6A)
A person who wishes to engage in conduct to which that person considers section 36 or 36A would apply, or might apply, may apply to the Commission for an authorisation to do so, and the Commission may grant an authorisation for that person to engage in that conduct.
(6B)
A person who wishes to enter into a contract or an arrangement, or arrive at an understanding, that contains a provision that is, or might be, a cartel provision may apply to the Commission for an authorisation to do so, and the Commission may grant an authorisation for that person to enter into the contract or arrangement, or arrive at the understanding.
(6C)
A person who wishes to give, or require the giving of, a covenant that contains a provision that is, or might be, a cartel provision may apply to the Commission for an authorisation to do so, and the Commission may grant an authorisation for that person to give, or require the giving of, the covenant.
(6D)
A person who wishes to give effect to a provision of a contract, arrangement, understanding, or covenant that is, or might be, a cartel provision may apply to the Commission for an authorisation to do so, and the Commission may grant an authorisation for that person to give effect to that provision.
(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)
A person who wishes to do an act to which that person considers section 38 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 do that act.
Section 58: substituted, on 1 July 1990, by section 19 of the Commerce Amendment Act 1990 (1990 No 41).
Section 58(6A): inserted, on 5 April 2023, by section 24 of the Commerce Amendment Act 2022 (2022 No 11).
Section 58(6B): inserted, on 5 April 2023, by section 24 of the Commerce Amendment Act 2022 (2022 No 11).
Section 58(6C): inserted, on 5 April 2023, by section 24 of the Commerce Amendment Act 2022 (2022 No 11).
Section 58(6D): inserted, on 5 April 2023, by section 24 of the Commerce Amendment Act 2022 (2022 No 11).
Section 58(5): repealed, on 15 August 2017, by section 32(2)(a) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 58(6): repealed, on 15 August 2017, by section 32(2)(a) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
58A Effect of authorisation
(1)
While an authorisation under section 58(1) remains in force, nothing in section 27, 30, 30C, 36, or 36A prevents an 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, giving effect to the arrangement to which the authorisation relates; or
(c)
arriving at, or in accordance with the authorisation, giving effect to the understanding to which the authorisation relates.
(2)
While an authorisation under section 58(2) remains in force, nothing in section 27, 30, 30C, 36, or 36A prevents an applicant from—
(a)
in accordance with the authorisation, giving effect to or enforcing the contract to which the authorisation relates; or
(b)
in accordance with the authorisation, giving effect to the arrangement or understanding.
(3)
While an authorisation under section 58(3) remains in force, nothing in section 28, 30, 30C, 36, or 36A prevents the applicant from—
(a)
requiring the giving of, or giving, the covenant to which 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 section 58(4) remains in force, nothing in section 28, 30, 30C, 36, or 36A prevents the applicant from carrying out or enforcing the terms of the covenant to which the authorisation relates in accordance with the authorisation.
(4A)
While an authorisation under section 58(6A) remains in force, nothing in section 27, 28, 30, 30C, 36, 36A, 37, or 38 prevents an applicant from engaging in conduct to which the authorisation relates in accordance with the authorisation.
(4B)
While an authorisation under section 58(6B) remains in force, nothing in section 27, 30, 30C, 36, or 36A prevents an applicant from—
(a)
entering into the contract or arrangement, or arriving at the understanding, to which the authorisation relates; or
(b)
in accordance with the authorisation, giving effect to any cartel provision in the contract, arrangement, or understanding to which the authorisation relates.
(4C)
While an authorisation under section 58(6C) remains in force, nothing in section 28, 30, 30C, 36, or 36A prevents an applicant from—
(a)
giving, or requiring the giving of, the covenant to which the authorisation relates; or
(b)
giving effect to any cartel provision of the covenant to which the authorisation relates in accordance with the authorisation.
(4D)
While an authorisation under section 58(6D) remains in force, nothing in section 27, 28, 30, 30C, 36, or 36A prevents an applicant from giving effect to any cartel provision of the contract, arrangement, understanding, or covenant to which the authorisation relates in accordance with the authorisation.
(5)
While an authorisation under section 58(7) remains in force, nothing in section 36, 36A, or 37 prevents the applicant from engaging in the practice to which the authorisation relates in accordance with the authorisation.
(6)
While an authorisation under section 58(8) remains in force, nothing in section 36, 36A, or 38 prevents the applicant from doing the act to which the authorisation relates in accordance with the authorisation.
Section 58A: inserted, on 1 July 1990, by section 19 of the Commerce Amendment Act 1990 (1990 No 41).
Section 58A(1): amended, on 5 April 2023, by section 25(1) of the Commerce Amendment Act 2022 (2022 No 11).
Section 58A(1): amended, on 15 August 2017, by section 12(1) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 58A(2): amended, on 5 April 2023, by section 25(1) of the Commerce Amendment Act 2022 (2022 No 11).
Section 58A(2): amended, on 15 August 2017, by section 12(2) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 58A(3): amended, on 5 April 2023, by section 25(2) of the Commerce Amendment Act 2022 (2022 No 11).
Section 58A(4): amended, on 5 April 2023, by section 25(3) of the Commerce Amendment Act 2022 (2022 No 11).
Section 58A(4A): inserted, on 5 April 2023, by section 25(4) of the Commerce Amendment Act 2022 (2022 No 11).
Section 58A(4B): inserted, on 5 April 2023, by section 25(4) of the Commerce Amendment Act 2022 (2022 No 11).
Section 58A(4C): inserted, on 5 April 2023, by section 25(4) of the Commerce Amendment Act 2022 (2022 No 11).
Section 58A(4D): inserted, on 5 April 2023, by section 25(4) of the Commerce Amendment Act 2022 (2022 No 11).
Section 58A(5): amended, on 5 April 2023, by section 25(5) of the Commerce Amendment Act 2022 (2022 No 11).
Section 58A(6): amended, on 5 April 2023, by section 25(6) of the Commerce Amendment Act 2022 (2022 No 11).
58B Additional provisions relating to authorisations
(1)
An authorisation granted to a person under section 58 has effect as if it were also an authorisation in the same terms to every other person named or referred to in the application for the authorisation as—
(a)
a party to the contract, arrangement, understanding, conduct, practice, or act to which the application relates; or
(b)
a person who is or would be bound by, or entitled to the benefit of, the covenant to which the application relates.
(2)
An authorisation granted to a person under section 58 may be expressed to apply to or in relation to another person who,—
(a)
in the case of an authorisation to enter into a contract or arrangement or arrive at an understanding, becomes a party to the proposed contract or arrangement at a time after it is entered into or becomes a party to the proposed 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, understanding, or covenant, becomes a party to the contract, arrangement, understanding, or covenant at a time after the authorisation is granted:
(c)
in the case of an authorisation to require the giving of, or to give, a covenant, becomes bound by, or entitled to 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 to the benefit of, the covenant at a time after the authorisation is granted.
Section 58B: inserted, on 1 July 1990, by section 19 of the Commerce Amendment Act 1990 (1990 No 41).
Section 58B(1): replaced, on 5 April 2023, by section 26(1) of the Commerce Amendment Act 2022 (2022 No 11).
Section 58B(2)(b): amended, on 5 April 2023, by section 26(2) of the Commerce Amendment Act 2022 (2022 No 11).
59 Contracts or covenants subject to authorisation not prohibited under certain conditions
(1)
Despite anything in this Act, but subject to section 59B,—
(a)
a contract to which section 27 or 30(1)(a) applies may be entered into if the requirements of subsection (2) are complied with:
(aa)
a contract the entry into which is, or the giving effect to a provision of which would be, conduct to which section 36 or 36A applies may be entered into if the requirements of subsection (2) are complied with:
(b)
a covenant to which section 28 or 30(1)(ab) applies may be required to be given, or may be given, if the requirements of subsection (2) are complied with:
(c)
a covenant the requiring of the giving of which, or the giving of which, is conduct to which section 36 or 36A applies may be required to be given, or may be given, if the requirements of subsection (2) are complied with.
(2)
For the purposes of subsection (1), the requirements that must be met are,—
(a)
in the case of a contract described in subsection (1)(a), that the contract is subject to a condition that the provision does not come into force unless and until authorisation is granted to give effect to it and that an application must be made for that authorisation within 15 working days after the contract is entered into:
(aa)
in the case of a contract described in subsection (1)(aa), that the contract is subject to a condition that the contract does not come into force unless and until authorisation is granted to engage in the conduct to which section 36 or 36A applies and that an application must be made for that authorisation within 15 working days after the contract is entered into:
(b)
in the case of a covenant described in subsection (1)(b) or (c), that the covenant is subject to the condition that it does not have effect unless and until authorisation is granted to give effect to it, or to engage in the conduct to which section 36 or 36A applies, as the case may be, and that application must be made for that authorisation within 15 working days after the covenant is made.
(3)
The condition referred to in subsection (2)(a), (aa), or (b) may provide for the provision or the contract to come into force, or the covenant to have effect, as the case may be, on the basis of an interim authorisation being granted under section 65AAA, but only if the condition also provides for the provision, contract, or covenant to cease to have effect immediately if—
(a)
the interim authorisation ceases to be in force; and
(b)
the authorisation under section 58 has not been granted.
Section 59: substituted, on 26 May 2001, by section 13 of the Commerce Amendment Act 2001 (2001 No 32).
Section 59(1)(a): amended, on 5 April 2023, by section 27(1) of the Commerce Amendment Act 2022 (2022 No 11).
Section 59(1)(a): amended, on 15 August 2017, by section 32(2)(a) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 59(1)(aa): inserted, on 5 April 2023, by section 27(2) of the Commerce Amendment Act 2022 (2022 No 11).
Section 59(1)(b): amended, on 5 April 2023, by section 27(3) of the Commerce Amendment Act 2022 (2022 No 11).
Section 59(1)(c): inserted, on 5 April 2023, by section 27(4) of the Commerce Amendment Act 2022 (2022 No 11).
Section 59(2)(a): replaced, on 15 August 2017, by section 32(2)(a) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 59(2)(a): amended, on 5 April 2023, by section 27(5) of the Commerce Amendment Act 2022 (2022 No 11).
Section 59(2)(aa): inserted, on 5 April 2023, by section 27(6) of the Commerce Amendment Act 2022 (2022 No 11).
Section 59(2)(b): amended, on 5 April 2023, by section 27(7)(a) of the Commerce Amendment Act 2022 (2022 No 11).
Section 59(2)(b): amended, on 5 April 2023, by section 27(7)(b) of the Commerce Amendment Act 2022 (2022 No 11).
Section 59(3): replaced, on 5 April 2023, by section 27(9) of the Commerce Amendment Act 2022 (2022 No 11).
59A When Commission may grant authorisation
(1)
The Commission may grant an authorisation to a person—
(a)
to enter into a contract or arrangement, or to arrive at an understanding, even though the contract or arrangement has been entered into, or the understanding has been arrived at, before the Commission makes a determination 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, or a covenant given, 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 though the covenant has been given before the Commission makes a determination in respect of the application for that authorisation; or
(d)
to do an act or engage in conduct referred to in section 37 or section 38 even though the applicant has already 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)
[Repealed](3)
[Repealed]Section 59A: inserted, on 26 May 2001, by section 13 of the Commerce Amendment Act 2001 (2001 No 32).
Section 59A(1)(b): amended, on 5 April 2023, by section 28 of the Commerce Amendment Act 2022 (2022 No 11).
Section 59A(2): repealed, on 15 August 2017, by section 13 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 59A(3): repealed, on 15 August 2017, by section 13 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
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.
Section 59B: inserted, on 26 May 2001, by section 13 of the Commerce Amendment 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 be made in the prescribed form, shall contain such particulars as may be specified in the form and shall be accompanied by payment of such fee as may be prescribed.
(2)
On receipt of an application that complies with subsection (1), the Commission shall forthwith—
(a)
record the application in the register to be kept by the Commission for the purpose:
(b)
give written notice of the date of registration to the person 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 written notice to the Commission of that person’s interest and the reason therefor.
(3A)
In relation to any application, the Commission may consult with any person who, in the opinion of the Commission, is able to assist it to determine the application.
(4)
On receipt of an application that does not comply with subsection (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)
decline to register the application until it complies with subsection (1).
(5)
Where the Commission declines to register an application under subsection (4)(c), it shall forthwith notify the person by 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 whom the application relates, shall from time to time produce, or, as the case may be, furnish to the Commission, within such time as it may specify, such further documents or information in relation to the application as may be required by the Commission for the purpose of enabling it to exercise its functions under this Part.
(7)
Notwithstanding anything in subsection (2) or subsection (4), where the Commission is of the opinion that the matters to which an application relates are, for reasons other than arising 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)
Section 60(3A): inserted, on 15 August 2017, by section 14 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
61 Determination of applications for authorisation of restrictive trade practices
(1)
The Commission must, in respect of an application for an authorisation under section 58, make a determination in writing—
(a)
granting such authorisation as it considers appropriate:
(b)
declining the application.
(1A)
If authorisation is not granted within 120 working days after the date on which the application is registered, the Commission is deemed to have declined the application, subject to any alternative timetable agreed between the Commission and the applicant.
(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 must take into account any submissions in relation to the application made to it by the applicant or by any other person.
(4)
The Commission must 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 must comply with the requirements of section 62.
(6)
The Commission must not make a determination granting an authorisation relating to an application under section 58(1) to (6A) 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)
the giving or the requiring of the giving of the covenant; or
(d)
the carrying out or enforcing of the terms of the covenant; or
(e)
engaging in the conduct—
as the case may be, to which the application relates, will in all the circumstances result, or be likely to result, in a benefit to the public which would outweigh the lessening in competition that would result, or would be likely to result therefrom.
(6A)
For the purposes of subsection (6), a lessening in competition includes a lessening in competition that is not substantial.
(7)
[Repealed](8)
The Commission must not make a determination granting an authorisation relating to an application under section 58(6B) to (8) unless it is satisfied that the following matter to which the application relates will in all the circumstances result, or be likely to result, in such a benefit to the public that the matter should be permitted:
(a)
entry into the contract or arrangement, or arriving at the understanding:
(b)
giving, or requiring the giving of, the covenant:
(c)
giving effect to the provision of the contract, arrangement, understanding, or covenant:
(d)
engaging in the practice of resale price maintenance:
(e)
the act or conduct.
(9)
For the purposes of section 58(6B) to (6D) and subsection (8)(a) to (c), it is not necessary for the Commission to determine whether a particular provision is in fact a cartel provision, providing there are reasonable grounds for believing that it might be.
Compare: Trade Practices Act 1974 s 90(1), (2), (4), (5), (6), (7), (8) (Aust)
Section 61(1A): inserted, on 15 August 2017, by section 15(1) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 61(1): amended, on 5 April 2023, by section 29(1) of the Commerce Amendment Act 2022 (2022 No 11).
Section 61(3): amended, on 5 April 2023, by section 29(1) of the Commerce Amendment Act 2022 (2022 No 11).
Section 61(4): amended, on 5 April 2023, by section 29(1) of the Commerce Amendment Act 2022 (2022 No 11).
Section 61(5): amended, on 5 April 2023, by section 29(1) of the Commerce Amendment Act 2022 (2022 No 11).
Section 61(6): amended, on 5 April 2023, by section 29(1) of the Commerce Amendment Act 2022 (2022 No 11).
Section 61(6): amended, on 5 April 2023, by section 29(2) of the Commerce Amendment Act 2022 (2022 No 11).
Section 61(6): amended, on 15 August 2017, by section 15(2) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 61(6)(d): amended, on 5 April 2023, by section 29(3) of the Commerce Amendment Act 2022 (2022 No 11).
Section 61(6)(e): inserted, on 5 April 2023, by section 29(4) of the Commerce Amendment Act 2022 (2022 No 11).
Section 61(6A): inserted, on 2 September 1996, by section 4 of the Commerce Amendment Act 1996 (1996 No 113).
Section 61(7): repealed, on 15 August 2017, by section 32(2)(a) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 61(8): replaced, on 5 April 2023, by section 29(5) of the Commerce Amendment Act 2022 (2022 No 11).
Section 61(9): inserted, on 5 April 2023, by section 29(5) of the Commerce Amendment Act 2022 (2022 No 11).
62 Commission to prepare draft determination in relation to restrictive trade practices
(1)
Before determining an application for an authorisation under section 58, the Commission shall prepare a draft determination 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 section 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)
any other person who in the opinion of the Commission may assist the Commission in its determination of the application.
(3)
[Repealed](4)
[Repealed](5)
[Repealed](6)
Before determining the application, the Commission may determine to hold a conference and, if so, must appoint a date, time, and place for the holding of the 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)
Where the Commission is of the opinion that 2 or more applications for authorisations that are made by the same person, or by bodies corporate that are interconnected with each other, 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 relation to the applications and, if appropriate, hold a single conference in relation to that draft determination.
Compare: Trade Practices Act 1974 s 90A(1), (2), (5), (6), (13) (Aust)
Section 62(3): repealed, on 15 August 2017, by section 16(1) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 62(4): repealed, on 15 August 2017, by section 16(1) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 62(5): repealed, on 15 August 2017, by section 16(1) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
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).
Section 62(6): amended, on 15 August 2017, by section 16(2) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 62(7): amended, on 15 August 2017, by section 16(3) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
63 Commission may grant provisional authorisation
[Repealed]Section 63: repealed, on 1 July 1990, by section 22 of the Commerce Amendment 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 presence at the conference is considered by the Commission to be desirable, is entitled to attend and participate personally or, in the case of a body corporate, be represented by a person who, or by persons each of whom, is a director, officer, or employee of the body corporate:
(c)
a person participating in the conference in accordance with paragraph (b) is entitled to 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 Commission to attend a conference called under section 62 where in the opinion of the Commission that employee 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 requirements of this Act and a proper consideration of the application 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)
Any member of the Commission attending the conference may terminate the conference when that member is of the opinion that a reasonable opportunity has been given for the expression 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 conference make a determination in respect of the application.
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 has granted an authorisation under section 58 the Commission is satisfied that—
(a)
the authorisation was granted on information that was false or misleading in a material particular; or
(b)
there has been a material change of circumstances since 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)
The Commission shall not revoke or amend an authorisation or revoke an authorisation and substitute a further authorisation pursuant to subsection (1) unless the person to whom the authorisation was granted and any other person who in the opinion of the Commission is likely to have an interest in the matter is given a reasonable opportunity to make submissions to the Commission and the Commission has regard to those submissions.
Compare: Trade Practices Act 1974 s 91(4) (Aust)
Section 65(1)(c): amended, on 15 August 2017, by section 32(2)(d) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
65AAA Commission may grant interim authorisation
(1)
The Commission may make a determination in writing granting an interim authorisation for an application under section 58 if the Commission considers it is appropriate to do so.
(2)
The Commission is not required to comply with section 61(5) to (9) before granting an interim authorisation.
(3)
(4)
An interim authorisation remains in force until—
(a)
the applicant withdraws its application for an authorisation; or
(b)
the Commission revokes the interim authorisation under section 65; or
(c)
the Commission declines or grants the application for an authorisation under section 58.
(5)
Subsection (4) does not limit the Commission’s ability to grant an interim authorisation for such period as the Commission sees fit.
Section 65AAA: inserted, on 5 May 2022, by section 30 of the Commerce Amendment Act 2022 (2022 No 11).
65AA Applications during epidemic period
[Repealed]Section 65AA: repealed, on 20 April 2023, by section 65AE.
65AB Modifications in relation to application under section 65AA
[Repealed]Section 65AB: repealed, on 20 April 2023, by section 65AE.
65AC Modifications in relation to certain applications made during epidemic period
[Repealed]Section 65AC: repealed, on 20 April 2023, by section 65AE.
65AD Provisional authorisations for certain applications made during epidemic period
[Repealed]Section 65AD: repealed, on 20 April 2023, by section 65AE.
65AE Repeal of sections 65AA to 65AE
[Repealed]Section 65AE: repealed, on 20 April 2023, by section 65AE.
65A Commission may give clearances relating to cartel provisions
(1)
A person who proposes to do any of the following may apply to the Commission for a clearance under this section:
(a)
enter into a contract or an arrangement that contains, or may contain, a cartel provision:
(b)
arrive at an understanding that contains, or may contain, a cartel provision:
(c)
give, or require the giving of, a covenant that contains, or may contain, a cartel provision.
(2)
The Commission must give a clearance under this section if it is satisfied that—
(a)
the applicant and any other party to the proposed contract, arrangement, understanding, or covenant are or will be involved in a collaborative activity; and
(b)
every cartel provision in the contract, arrangement, understanding, or covenant is reasonably necessary for the purpose of the collaborative activity; and
(c)
the following will not have, or would not be likely to have, the effect of substantially lessening competition in a market:
(i)
entering into the contract or arrangement:
(ii)
arriving at the understanding:
(iii)
giving, or requiring the giving of, the covenant:
(iv)
giving effect to any provision of the contract, arrangement, understanding, or covenant.
(3)
For the purpose of subsection (2), it is not necessary for the Commission to determine whether a particular provision is in fact a cartel provision, providing there are reasonable grounds for believing it might be.
(4)
If clearance is not given within 30 working days after the date on which the application is registered in accordance with section 60(2)(a), the Commission is deemed to have declined to give the clearance, subject to any alternative timetable agreed between the Commission and the person applying for clearance.
Section 65A: inserted, on 15 August 2017, by section 17 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 65A(1): replaced, on 5 April 2023, by section 33(1) of the Commerce Amendment Act 2022 (2022 No 11).
Section 65A(2)(a): amended, on 5 April 2023, by section 33(2) of the Commerce Amendment Act 2022 (2022 No 11).
Section 65A(2)(b): amended, on 5 April 2023, by section 33(2) of the Commerce Amendment Act 2022 (2022 No 11).
Section 65A(2)(c): replaced, on 5 April 2023, by section 33(3) of the Commerce Amendment Act 2022 (2022 No 11).
65B Effect of clearance under section 65A
The effect of a clearance given under section 65A is that—
(a)
a party to the contract, arrangement, understanding, or covenant to which the clearance relates does not contravene section 27, 28, 30, 36, or 36A by entering into the contract or arrangement, or arriving at the understanding , or giving, or requiring the giving of, the covenant; and
(b)
a person does not contravene section 27, 28, 30, 36, or 36A by giving effect to any cartel provision in the contract, arrangement, understanding, or covenant to which the clearance relates; and
(c)
section 30C(1) does not apply to any cartel provision in the contract, arrangement, understanding, or covenant.
Section 65B: inserted, on 15 August 2017, by section 17 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 65B(a): amended, on 5 April 2023, by section 34(1) of the Commerce Amendment Act 2022 (2022 No 11).
Section 65B(a): amended, on 5 April 2023, by section 34(2) of the Commerce Amendment Act 2022 (2022 No 11).
Section 65B(a): amended, on 5 April 2023, by section 34(3) of the Commerce Amendment Act 2022 (2022 No 11).
Section 65B(b): amended, on 5 April 2023, by section 34(1) of the Commerce Amendment Act 2022 (2022 No 11).
Section 65B(b): amended, on 5 April 2023, by section 34(2) of the Commerce Amendment Act 2022 (2022 No 11).
Section 65B(c): amended, on 5 April 2023, by section 34(1) of the Commerce Amendment Act 2022 (2022 No 11).
65C Procedures relating to clearances
(1)
Section 60 (except subsections (2)(c) and (3)) applies to an application for a clearance under section 65A in the same way as it applies to an application for an authorisation made under section 58.
(2)
Every clearance given under section 65A must be given by way of written notice to the applicant.
Section 65C: inserted, on 15 August 2017, by section 17 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
65D Revocation of clearances
(1)
The Commission may revoke a clearance given under section 65A if it is satisfied that—
(a)
the clearance was given on information that was false or misleading in a material particular; or
(b)
there has been a material change of circumstances.
(2)
The Commission must not revoke a clearance unless the person to whom the clearance was given, and any other person who in the opinion of the Commission is likely to have an interest in the matter, is given a reasonable opportunity to make submissions to the Commission and the Commission has had regard to those submissions.
Section 65D: inserted, on 15 August 2017, by section 17 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Business acquisitions
Heading: substituted, on 1 January 1991, by section 23 of the Commerce Amendment Act 1990 (1990 No 41).
66 Commission may give clearances for business acquisitions
(1)
A person who proposes to acquire assets of a business or shares may give the Commission a notice seeking clearance for the acquisition.
(2)
Subsections (1), (2)(a) and (b), (4), and (5) of section 60 shall apply in respect of every notice given under subsection (1) as if the notice was an application under section 58.
(3)
Within 40 working days after the date of registration of the notice, or such longer period as the Commission and the person 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 Commission shall be deemed to have declined to give a clearance 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).
Section 66(3): amended, on 15 August 2017, by section 18 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 66(3)(a): amended, on 15 December 2005, by section 3(1) of the Commerce Amendment Act (No 2) 2005 (2005 No 95).
Section 66(3)(a): amended, on 26 May 2001, by section 11(2) of the Commerce Amendment Act 2001 (2001 No 32).
Section 66(3)(b): amended, on 15 December 2005, by section 3(2) of the Commerce Amendment Act (No 2) 2005 (2005 No 95).
Section 66(3)(b): amended, on 26 May 2001, by section 11(2) of the Commerce Amendment Act 2001 (2001 No 32).
67 Commission may grant authorisations for business acquisitions
(1)
A person who proposes to acquire assets of a business or shares may give the Commission a notice seeking an authorisation for the acquisition.
(2)
Subsections (1), (2)(a) and (b), (4), and (5) of section 60 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, or such longer period as the Commission and the person 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 whose behalf the notice was given, decline to give a clearance or grant an authorisation for the acquisition.
(4)
If the period specified in subsection (3) expires without the Commission having given a clearance or having granted an authorisation or having declined to do so, the Commission shall be deemed to have declined to give a clearance or grant an authorisation.
(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 granting the authorisation, and the determination of the 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 Commerce Amendment Act (No 2) 2005 (2005 No 95).
Section 67(3)(a): amended, on 26 May 2001, by section 11(2) of the Commerce Amendment Act 2001 (2001 No 32).
68 Provisions applying to applications for clearances and authorisations for business acquisitions
(1)
Every person who gives a notice under section 66 or section 67 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 enabling it to exercise its functions under this section or section 66 or section 67.
(2)
Notwithstanding section 66 or section 67, where the Commission is of the opinion that a proposed acquisition is, for reasons other than arising from the application of any provision of this 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 declining to give a clearance or grant an authorisation under subsection (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 writing to the Commission, advise the Commission that it does 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
Nothing in section 27, 36, 36A, 47, or 47A applies to the acquisition of assets of a business or shares if the assets or shares are acquired 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).
Section 69: amended, on 5 April 2023, by section 35 of the Commerce Amendment Act 2022 (2022 No 11).
Section 69: amended, on 15 August 2017, by section 19 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
69A Commission may accept undertakings
(1)
In giving a clearance or granting an authorisation under section 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, to dispose of assets or shares specified in the undertaking.
(2)
The Commission shall not accept an undertaking in relation to the giving of a clearance or the granting of an authorisation under section 66 or section 67, other than an undertaking given under subsection (1).
(3)
An undertaking given to the Commission under subsection (1) is deemed to form part of the clearance given or the authorisation granted in relation to the acquisition to which the undertaking relates.
(4)
This section overrides section 74A.
Section 69A: inserted, on 1 January 1991, by section 23 of the Commerce Amendment Act 1990 (1990 No 41).
Section 69A(4): inserted, on 26 October 2018, by section 11 of the Commerce Amendment Act 2018 (2018 No 42).
69AB Authorisation or clearance void if undertaking contravened
(1)
If a person contravenes an undertaking accepted under section 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 undertaking.
Section 69AB: inserted, on 14 October 2008 (applying only to undertakings under section 69A that are accepted in relation to clearances given or authorisations granted on notices under section 66 or 67 that are registered after that date), by section 7(1) of the Commerce Amendment Act 2008 (2008 No 70).
69AC Variation of undertaking
(1)
The Commission may, on an application made under subsection (2), accept a variation of an undertaking given under section 69A if it considers that the variation would not have materially affected its decision to give the clearance or grant the authorisation in relation to the acquisition to which the undertaking relates if the variation had been proposed at the time of 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)
must be made no later than 20 working days before the date on which the relevant obligation under the undertaking must be met.
(3)
The Commission must notify the person who made the application of its decision on the application no later than 3 working days before the relevant obligation under the undertaking must 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)
is deemed to form part of the undertaking (and, accordingly, is deemed under section 69A(3) to form part of the clearance given or the authorisation granted in relation to the acquisition to which the undertaking relates).
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 under section 69A after that date), by section 7(1) of the Commerce Amendment Act 2008 (2008 No 70).
69B Conferences in relation to business acquisitions
(1)
Before making a determination under section 66(3) or section 67(3) in relation to an acquisition, the Commission may determine to hold a conference and shall appoint a date, time, and place for the holding of the conference and give notice of the date, time, and place so appointed and of the matters to be 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 section 62, were a reference to a conference held 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 whose behalf a notice was given under section 66(1) or section 67(1), as the case may be; and
(c)
the reference in subsection (6) of that section to a determination in respect of an application, were a reference to a determination under section 66(3) or section 67(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, on 14 October 2008, by section 8 of the Commerce Amendment 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 Conferences in relation to authorisations about controlled 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
Power to accept undertakings
Heading: replaced, on 26 October 2018, by section 12 of the Commerce Amendment Act 2018 (2018 No 42).
74AA Commission may accept undertakings
[Repealed]Section 74AA: repealed, on 26 October 2018, by section 12 of the Commerce Amendment Act 2018 (2018 No 42).
74A Commission may accept undertakings
(1)
The Commission may accept a written undertaking given by, or on behalf of, a person in connection with any matter relating to the enforcement of this Act.
(2)
The person may withdraw or vary the undertaking with the consent of the Commission.
(3)
See section 69A, which overrides this section in respect of undertakings relating to clearances or authorisations for business acquisitions.
Compare: 1986 No 121 s 46A
Section 74A: replaced, on 26 October 2018, by section 12 of the Commerce Amendment Act 2018 (2018 No 42).
74B Matters included in undertakings
(1)
An undertaking under section 74A may, without limitation, include either or both of the following:
(a)
an undertaking to pay compensation to any person or otherwise take action to avoid, remedy, or mitigate any actual or likely adverse effects arising from a contravention, or possible contravention, of this Act:
(b)
an undertaking to pay to the Commission all or part of the Commission’s costs incurred in investigating, or bringing proceedings in relation to, a contravention, or possible contravention, of this Act.
(2)
However, the Commission may accept an undertaking relating to the enforcement of section 47 only if the undertaking is to dispose of assets or shares specified in the undertaking.
(3)
If the Commission accepts an undertaking that involves payment of compensation to any person, or payment of the Commission’s costs, the Commission must make the following information publicly available:
(a)
the amount of the compensation, or of the Commission’s costs, that has been undertaken to be paid; and
(b)
a brief description of the circumstances and nature of the contravention or possible contravention of this Act to which the undertaking relates.
(4)
In this section, a contravention means any of the following:
(a)
an actual contravention:
(b)
aiding, abetting, counselling, or procuring a contravention:
(c)
inducing a contravention, whether by threats, promises, or otherwise:
(d)
being in any way, directly or indirectly, knowingly concerned in, or party to, a contravention:
(e)
conspiring with any other person in a contravention.
Section 74B: replaced, on 26 October 2018, by section 12 of the Commerce Amendment Act 2018 (2018 No 42).
74C Enforcement of undertakings
(1)
If the Commission considers that a person has breached an undertaking given under section 74A, the Commission may apply to the High Court for an order under subsection (2).
(2)
The court may make any 1 or more of the following orders if it is satisfied that the person has breached a term of the undertaking:
(a)
an order directing the person to comply with the term:
(b)
an order directing the person to pay to the Crown an amount not exceeding the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach:
(c)
any order that the court thinks appropriate that directs the person to compensate any other person who has suffered loss or damage as a result of the breach:
(d)
an order for any consequential relief that the court thinks appropriate.
Compare: 1986 No 121 s 46B
Section 74C: replaced, on 26 October 2018, by section 12 of the Commerce Amendment Act 2018 (2018 No 42).
74D Pecuniary penalties for contravention of cease and desist order
[Repealed]Section 74D: repealed, on 26 October 2018, by section 12 of the Commerce Amendment Act 2018 (2018 No 42).
Jurisdiction of courts
75 Jurisdiction of High Court
(1)
In accordance with this Part, the High Court must hear and determine the following matters:
(aa)
applications for orders under section 74C to enforce undertakings:
(a)
in the case of contraventions of Part 2,—
(i)
proceedings for the recovery of pecuniary penalties under section 80:
(ii)
applications for injunctions under section 81:
(iii)
actions for damages under section 82:
(b)
in the case of contraventions of Part 3,—
(i)
proceedings for the recovery of pecuniary penalties under section 83:
(ii)
applications for injunctions under section 84:
(iia)
actions for damages under section 84A:
(iii)
proceedings under section 85:
(c)
in the case of contraventions relating to Part 4,—
(i)
proceedings for the recovery of pecuniary penalties under section 86 or 87:
(ii)
applications for orders under section 86A, 86C, or 87A:
(iii)
applications for injunctions under section 87C:
(ca)
(d)
applications for orders under section 89:
(e)
appeals against determinations of the Commission:
(f)
applications for orders under section 80B or section 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]Section 75(1): amended, on 26 October 2018, by section 13(1) of the Commerce Amendment Act 2018 (2018 No 42).
Section 75(1)(aa): replaced, on 26 October 2018, by section 13(2) of the Commerce Amendment Act 2018 (2018 No 42).
Section 75(1)(b)(i): substituted, on 1 January 1991, by section 25 of the Commerce Amendment Act 1990 (1990 No 41).
Section 75(1)(b)(iia): inserted, on 2 September 1996, by section 5 of the Commerce Amendment Act 1996 (1996 No 113).
Section 75(1)(c): substituted, on 14 October 2008, by section 9(1) of the Commerce Amendment Act 2008 (2008 No 70).
Section 75(1)(ca): inserted, on 27 August 2025, by section 16 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
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).
Section 75(1)(i): added, on 14 October 2008, by section 9(2) of the Commerce 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 Court
Section 76 heading: amended, on 26 October 2018, by section 14(1) of the Commerce Amendment Act 2018 (2018 No 42).
Section 76: amended, on 27 August 2025, by section 17 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Section 76: amended, on 26 October 2018, by section 14(2) of the Commerce Amendment Act 2018 (2018 No 42).
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)
This section applies for the purposes of the exercise by the court of its jurisdiction and powers under sections 91 to 97.
(1A)
There are to be lay members of the court appointed from time to time by the 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 knowledge or experience in industry, commerce, economics, law, or accountancy.
(3)
A lay member of the court shall hold office for such term, 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 apply accordingly as if the court were a statutory Board within the meaning of that Act.
(5)
The Governor-General may terminate the appointment of a lay 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, that person shall be deemed to continue as a lay member of the court for the purpose of completing the hearing of any matter before that person, as a lay member of the court, which was commenced before the expiration of the term of office or before the resignation took effect, as the case may be.
(8)
Before entering upon the exercise of the duties of their office, the lay members shall take an oath before a Judge of the court that they will faithfully and impartially perform the duties of their office.
(9)
The presence of a Judge of the court and of at least 1 lay member shall be necessary to constitute a sitting of the court.
(10)
The decision of a majority (including the Judge or, where more 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)
If the members present are equally divided in opinion, the decision of the Judge, or of a majority of the Judges, shall be the 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 the practice and procedure of that court, which for the purpose shall have all the powers of the High Court under this Part.
(13)
The decision of the Court of Appeal in any proceedings under 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)
an order in any proceedings that the parties agree should be heard and determined by a Judge alone:
(d)
an order in any proceedings where the matter in issue is substantially a question of law only:
(e)
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 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): replaced, on 30 May 2017, by section 11 of the Regulatory Systems (Commercial Matters) Amendment Act 2017 (2017 No 12).
Section 77(1A): inserted, on 30 May 2017, by section 11 of the Regulatory Systems (Commercial Matters) Amendment Act 2017 (2017 No 12).
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).
Section 77(14): amended, on 15 August 1991, by section 3(4) of the Judicature Amendment Act 1991 (1991 No 60).
78 Lay members of High Court in certain cases
(1)
For the purposes of the exercise by the High Court of its civil jurisdiction under section 47A, 47B, or 47D or sections 80 to 85 in respect of proceedings that relate to section 27, 28, 30, 36, 36A, 37, 38, 47, or 47B, a Judge of the court may, of his own motion or on the application of any party to the proceedings, require any person or persons appointed as a lay member or lay members of the High Court pursuant to section 77, to hear and determine the proceedings as an additional lay member or additional lay members of the court.
(2)
Where a lay member of the High Court is required pursuant to subsection (1) to hear and determine any proceedings as an 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 applies as if the proceedings to which those provisions refer were 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)
an order on any application made in the course of any proceedings:
(ii)
an order that is not opposed:
(iii)
an order in any proceedings that the parties agree should be heard and determined by a Judge alone:
(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 that the matter in issue is substantially a question of law only:
(vi)
an order granting the leave of the court to appeal to the Court of Appeal:
(b)
[Repealed](c)
to exercise the power to make an order directing the payment of a pecuniary penalty pursuant to section 80 or section 83:
(d)
to exercise the power to grant an injunction pursuant to section 81 or section 84:
(e)
to exercise the power to make an order for the payment 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 15 August 2017, by section 20(1) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 78(1): amended, on 15 August 1991, by section 3(4) of the Judicature Amendment Act 1991 (1991 No 60).
Section 78(2): amended, on 15 August 1991, by section 3(4) of the Judicature Amendment Act 1991 (1991 No 60).
Section 78(3): amended, on 1 January 1991, by section 26(2) of the Commerce Amendment Act 1990 (1990 No 41).
Section 78(4)(b): repealed, on 15 August 2017, by section 20(2) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 78(4)(c): amended, on 1 January 1991, by section 26(3)(a) of the Commerce Amendment Act 1990 (1990 No 41).
Section 78(4)(d): amended, on 1 January 1991, by section 26(3)(b) of the Commerce Amendment Act 1990 (1990 No 41).
Section 78(4)(e): amended, on 1 January 1991, by section 26(3)(c) of the Commerce Amendment Act 1990 (1990 No 41).
Section 78(4)(f): added, on 1 January 1991, by section 26(3)(d) of the Commerce 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 section 82B, 86B, or 87B are determined, the High Court may 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 82B, 86B, or 87B in respect of the conduct, events, transactions, or other matters that were the subject of the civil proceedings.
(3)
Any uncompleted proceedings for an order under this Act that a person pay a pecuniary penalty must be stayed if criminal proceedings are started or have already been started against the person for the same act or omission, or substantially the same act or omission, in respect of which the pecuniary penalty order is sought.
Section 79B: inserted, on 14 October 2008, by section 12(1) of the Commerce Amendment Act 2008 (2008 No 70).
Section 79B(1): amended, on 8 April 2021, by section 9(1) of the Commerce (Criminalisation of Cartels) Amendment Act 2019 (2019 No 9).
Section 79B(2): amended, on 8 April 2021, by section 9(2) of the Commerce (Criminalisation of Cartels) Amendment Act 2019 (2019 No 9).
Section 79B(3): inserted, on 15 August 2017, by section 21 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Restrictive trade practices
80 Pecuniary penalties relating to restrictive trade practices
(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 concerned in, or party to, the contravention by any other person of such a provision; or
(f)
has conspired with any other person to contravene such 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 court must have regard to all relevant matters, in particular,—
(a)
any exemplary damages awarded under section 82A; and
(b)
in the case of a body corporate, the nature and extent of 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 any other case, the greater of the following:
(i)
$10 million:
(ii)
either,—
(A)
if it can be readily ascertained and if the court is satisfied that the contravention occurred in the course of producing a commercial gain, 3 times the value of any commercial gain resulting from the contravention; or
(B)
if the commercial gain cannot readily be ascertained, 10% of the turnover of the person and all its interconnected bodies corporate (if any) in each accounting period in which the contravention occurred.
(2C)
In proceedings relating to a contravention of section 30, if the defendant claims that an exception in section 31, 32, or 33 applies, it is for the defendant to prove, on the balance of probabilities, that the relevant exception applies.
(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 under this Act against that person in relation to the contravention of any 1 or more of the provisions; but no person shall be 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 heading: amended, on 15 August 2017, by section 22(1) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 80(1): amended, on 26 May 2001, by section 17(1) of the Commerce Amendment Act 2001 (2001 No 32).
Section 80(2): substituted, on 26 May 2001, by section 17(2) of the Commerce 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(2B)(b): replaced, on 15 August 2017, by section 22(2) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 80(2C): inserted, on 15 August 2017, by section 22(3) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 80(3): repealed, on 14 October 2008, by section 12(2)(b) of the Commerce Amendment Act 2008 (2008 No 70).
Section 80(4): repealed, on 14 October 2008, by section 12(2)(b) of the Commerce Amendment Act 2008 (2008 No 70).
Section 80(5): substituted, on 26 May 2001, by section 17(3) of the Commerce Amendment Act 2001 (2001 No 32).
80A Restriction on indemnities relating to contraventions of section 30
(1)
A body corporate must not indemnify any director, employee, or agent, or former director, employee, or agent, of the body corporate or of any of its interconnected bodies corporate (person A) in respect of—
(a)
any pecuniary penalty imposed on person A by the court under section 80 in respect of a contravention of section 30; or
(b)
any costs incurred by person A in defending any civil proceedings in which the pecuniary penalty referred to in paragraph (a) is imposed; or
(c)
any penalty imposed on person A by the court following the conviction of person A under section 82B; or
(d)
any costs incurred by person A in defending any criminal proceedings in which person A is convicted under section 82B.
(2)
An indemnity given in contravention of subsection (1) is void.
(3)
In this section, indemnify includes relieve or excuse from liability, whether before or after the liability arises; and indemnity has a corresponding meaning.
Section 80A: replaced, on 15 August 2017, by section 23 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 80A(1)(b): amended, on 8 April 2021, by section 10(1) of the Commerce (Criminalisation of Cartels) Amendment Act 2019 (2019 No 9).
Section 80A(1)(c): inserted, on 8 April 2021, by section 10(2) of the Commerce (Criminalisation of Cartels) Amendment Act 2019 (2019 No 9).
Section 80A(1)(d): inserted, on 8 April 2021, by section 10(2) of the Commerce (Criminalisation of Cartels) Amendment Act 2019 (2019 No 9).
80B Pecuniary penalties for contravention of section 80A
(1)
If the court is satisfied on the application of the Commission that a person has acted in contravention of section 80A, 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, in respect of each act or omission, exceed 2 times the value of any indemnity 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.
Section 80B: inserted, on 26 May 2001, by section 18 of the Commerce Amendment Act 2001 (2001 No 32).
Section 80B(1): amended, on 15 August 2017, by section 32(2)(b) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 80B(3): repealed, on 14 October 2008, by section 12(2)(c) of the Commerce Amendment Act 2008 (2008 No 70).
Section 80B(4): repealed, on 14 October 2008, by section 12(2)(c) of the Commerce 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 the management of, a body corporate for a period not exceeding 5 years as may be specified in the order, if the court is satisfied on the application of the Commission that the person has, in contravention of section 30,—
(a)
entered into a contract or arrangement, or has arrived at an understanding, that contains a cartel provision; or
(ab)
given, or required the giving of, a covenant that contains a cartel provision; or
(b)
given effect to a contract, arrangement, understanding, or covenant that contains a cartel provision.
(c)
[Repealed](d)
[Repealed]Section 80C: inserted, on 26 May 2001, by section 18 of the Commerce Amendment Act 2001 (2001 No 32).
Section 80C: amended, on 15 August 2017, by section 24(1) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 80C(a): replaced, on 15 August 2017, by section 24(2) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 80C(ab): inserted, on 5 April 2023, by section 36(1) of the Commerce Amendment Act 2022 (2022 No 11).
Section 80C(b): replaced, on 15 August 2017, by section 24(2) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 80C(b): amended, on 5 April 2023, by section 36(2) of the Commerce Amendment Act 2022 (2022 No 11).
Section 80C(c): repealed, on 15 August 2017, by section 24(2) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 80C(d): repealed, on 15 August 2017, by section 24(2) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
80D Application for order under section 80C
(1)
The Commission must give not less than 10 days’ notice of its intention to apply for an order under section 80C to the person against whom the order is sought.
(2)
On the hearing of the Commission’s application or an application for leave by a person against whom an order under section 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)
the person against whom the order is sought or has been made may appear and give evidence or 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)
the person against whom the order has been made; 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.
Section 80D: inserted, on 26 May 2001, by section 18 of the Commerce Amendment Act 2001 (2001 No 32).
80E Offence to act in contravention of order made under section 80C
(1)
Every person commits an offence who acts in contravention of an order made under section 80C.
(2)
A person who commits an offence against subsection (1) is liable on conviction to imprisonment for a term not exceeding 5 years or to a fine not exceeding $200,000.
(3)
[Repealed]Section 80E: inserted, on 26 May 2001, by section 18 of the Commerce Amendment Act 2001 (2001 No 32).
Section 80E(3): repealed, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
81 Injunctions may be granted by court for contravention of Part 2
The court may, on the application of the Commission or any other person, grant an injunction restraining a person from engaging 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)
being in any way directly or indirectly, knowingly concerned 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)
Section 81: amended, on 15 August 2017, by section 32(2)(d) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
82 Actions for damages for contravention of Part 2
(1)
Every person is liable in damages for any loss or damage caused by that person engaging in conduct that constitutes any 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)
being in any way directly or indirectly, knowingly concerned 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 discovered or ought reasonably to have been discovered. However, no action under subsection (1) may be commenced 10 years or more after the matter giving rise to the contravention.
Compare: Trade Practices Act 1974 s 82 (Aust)
Section 82(1): amended, on 15 August 2017, by section 32(2)(d) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
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)
The court may order a person who has engaged in any conduct referred to in section 82(1) to pay exemplary damages even though the court has made, or may make, an order directing the person to pay a pecuniary penalty under section 80 for the 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.
(3)
The court may not order a person to pay exemplary damages in relation to conduct for which the person has been convicted of an offence under section 82B.
Section 82A: inserted, on 26 May 2001, by section 20 of the Commerce Amendment Act 2001 (2001 No 32).
Section 82A(3): inserted, on 8 April 2021, by section 11 of the Commerce (Criminalisation of Cartels) Amendment Act 2019 (2019 No 9).
82B Offence relating to cartel prohibition
(1)
A person commits an offence if—
(a)
the person,—
(i)
in contravention of section 30(1)(a), enters into a contract or arrangement, or arrives at an understanding, that contains a cartel provision; and
(ii)
intends, at that time, to engage in price fixing, restricting output, or market allocating; or
(ab)
the person,—
(i)
in contravention of section 30(1)(ab), gives, or requires the giving of, a covenant that contains a cartel provision; and
(ii)
intends, at the time the person gives or requires the giving of the covenant, to engage in price fixing, restricting output, or market allocating; or
(b)
the person,—
(i)
in contravention of section 30(1)(b), gives effect to a cartel provision; and
(ii)
intends, at the time the cartel provision is given effect to, to engage in price fixing, restricting output, or market allocating.
(2)
An individual who commits an offence against this section is liable on conviction to imprisonment for a term not exceeding 7 years or a fine not exceeding $500,000, or both.
(3)
A person other than an individual that commits an offence against this section is liable on conviction to a fine not exceeding the greater of the following:
(a)
$10 million:
(b)
either,—
(i)
if it can be readily ascertained and if the court is satisfied that the offence occurred in the course of producing a commercial gain, 3 times the value of any commercial gain resulting from the contravention; or
(ii)
if the commercial gain cannot be readily ascertained, 10% of the turnover of the person and all its interconnected bodies corporate (if any) in each accounting period in which the contravention occurred.
(4)
See the exceptions set out in Part 2, which relate to conduct that would otherwise contravene section 30(1)(a), (ab), or (b).
Section 82B: inserted, on 8 April 2021, by section 4 of the Commerce (Criminalisation of Cartels) Amendment Act 2019 (2019 No 9).
Section 82B(1)(ab): inserted, on 5 April 2023, by section 37(1) of the Commerce Amendment Act 2022 (2022 No 11).
Section 82B(4): amended, on 5 April 2023, by section 37(2) of the Commerce Amendment Act 2022 (2022 No 11).
82C Defence relating to exceptions to cartel prohibition
(1)
In a prosecution under section 82B, it is a defence if, at the time of the alleged contravention, the defendant believed on reasonable grounds that 1 or more of the exceptions set out in Part 2 applied in relation to the conduct that constituted the alleged contravention.
(2)
However, the defence does not apply if the defendant’s belief is based on ignorance, or mistake, of any matter of law.
Section 82C: inserted, on 8 April 2021, by section 4 of the Commerce (Criminalisation of Cartels) Amendment Act 2019 (2019 No 9).
82D Disclosure by defendant in cartel prosecution
(1)
A defendant that wishes to claim that an exception set out in Part 2 applied in relation to the conduct that constituted the alleged contravention, or to rely on the defence in section 82C, must—
(a)
notify the prosecution of that fact within 20 working days after the defendant pleads not guilty (or at any later time with the leave of the court); and
(b)
at the same time, provide sufficient details about the application of the relevant section to inform the prosecution about how the exception is claimed to have applied or how the defence will be relied on.
(2)
The court or the Registrar of the court must give written notice of the requirements in subsection (1) to a defendant who pleads not guilty.
Section 82D: inserted, on 8 April 2021, by section 4 of the Commerce (Criminalisation of Cartels) Amendment Act 2019 (2019 No 9).
82E Consequences of failure to disclose under section 82D
(1)
This section applies if, at the hearing or trial of a defendant, the court is satisfied that—
(a)
evidence sought to be adduced by the defendant is, or is based on, information that should have been disclosed to the prosecution under section 82D; and
(b)
that information was not disclosed.
(2)
The court may—
(a)
exclude the evidence; or
(b)
with or without requiring the evidence to be disclosed, adjourn the hearing or trial; or
(c)
admit the evidence if it is in the interests of justice to do so; or
(d)
exercise its powers under any other enactment or rule of law that deals with the failure of a party to comply with the directions of the court.
(3)
However, if it appears to the court that the defendant was not given notice in accordance with section 82D(2), the court—
(a)
must not order the exclusion of evidence under subsection (2)(a); but
(b)
must adjourn the hearing or trial if the prosecution requests an adjournment.
Compare: 2008 No 38 s 34
Section 82E: inserted, on 8 April 2021, by section 4 of the Commerce (Criminalisation of Cartels) Amendment Act 2019 (2019 No 9).
Business acquisitions
Heading: substituted, on 1 January 1991, by section 29 of the Commerce Amendment Act 1990 (1990 No 41).
83 Pecuniary penalties relating to business acquisitions
(1)
The court may, on the application of the Commission, order a person to pay a pecuniary penalty to the Crown if the court is satisfied that the person—
(a)
has contravened section 47 or 47B; or
(b)
has attempted to contravene either of those sections; or
(c)
has aided, abetted, counselled, or procured any other person to contravene either of those sections; or
(d)
has induced, or attempted to induce, any other person, whether by threats or promises or otherwise, to contravene either of those sections; or
(e)
has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by any other person of either of those sections; or
(f)
has conspired with any other person to contravene either of those sections.
(1A)
[Repealed](2)
In determining an appropriate penalty under this section, the court must have regard to all relevant matters, including—
(a)
the nature and extent of the act or omission:
(b)
the nature and extent of any loss or damage suffered by any person as a result of the act or omission:
(c)
the circumstances in which the act or omission took place:
(d)
whether or not the person has previously been found by the court in proceedings under this Part to have engaged in any similar conduct.
(3)
The amount of any pecuniary penalty must not, in respect of each act or omission, exceed,—
(a)
in the case of an individual, $500,000; or
(b)
in any other case, the greater of the following:
(i)
$10 million:
(ii)
either,—
(A)
if it can be readily ascertained and if the court is satisfied that the contravention occurred in the course of producing a commercial gain, 3 times the value of any commercial gain resulting from the contravention; or
(B)
if the commercial gain cannot readily be ascertained, 10% of the turnover of the person and all its interconnected bodies corporate (if any) in each accounting period in which the contravention occurred.
(3)
[Repealed](4)
[Repealed](5)
Proceedings under this section may be commenced within 3 years after the matter giving rise to the contravention arose.
(6)
A person is not liable to a pecuniary penalty under both section 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 heading: amended, on 15 August 2017, by section 25(1) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 83(1): replaced, on 15 August 2017, by section 25(2) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 83(1A): repealed, on 5 May 2022, by section 38(1) of the Commerce Amendment Act 2022 (2022 No 11).
Section 83(2): amended, on 5 May 2022, by section 38(2) of the Commerce Amendment Act 2022 (2022 No 11).
Section 83(3): inserted, on 5 May 2022, by section 38(3) of the Commerce Amendment Act 2022 (2022 No 11).
Section 83(3): repealed, on 14 October 2008, by section 12(2)(d) of the Commerce Amendment Act 2008 (2008 No 70).
Section 83(4): repealed, on 14 October 2008, by section 12(2)(d) of the Commerce 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:
(iii)
aiding, abetting, counselling, or procuring any other person 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, knowingly concerned in, or party to, the contravention by any other person of that provision:
(vi)
conspiring with any other person to contravene that provision:
(b)
impose on any person obligations to be observed in the 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 in the order), or in any other manner, as it thinks necessary in the circumstances of the case.
(2)
If it appears to the court, on the application of the Commission, that a person intends to engage, or is engaging, or has engaged, in conduct that constitutes or would constitute a contravention 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:
(iii)
aiding, abetting, counselling, or procuring any other person 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, knowingly concerned in, or party to, the contravention by any other person of that undertaking:
(vi)
conspiring with any other person to contravene that undertaking:
(b)
impose on any person obligations to be observed in the 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 the terms and with the powers as may be specified or described in the order), or in any other manner, as it thinks necessary 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).
Section 84(1): amended, on 1 January 1991, by section 30(a) of the Commerce Amendment Act 1990 (1990 No 41).
Section 84(1)(a)(i): amended, on 1 January 1991, by section 30(b) of the Commerce Amendment Act 1990 (1990 No 41).
Section 84(2): added, on 14 October 2008 (applying only to undertakings under section 69A that are accepted in relation to clearances given or authorisations granted on notices under section 66 or 67 that are registered after that date), 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 caused by that person engaging in conduct that constitutes any of the following:
(a)
a contravention of section 47 or 47B:
(b)
aiding, abetting, counselling, or procuring the contravention of section 47 or 47B:
(c)
inducing by threats, promises, or otherwise the contravention of section 47 or 47B:
(d)
being in any way directly or indirectly, knowingly concerned in, or party to, the contravention of section 47 or 47B:
(e)
conspiring with any other person in the contravention of section 47 or 47B.
(2)
An action under subsection (1) may be commenced at any time 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).
Section 84A(1): replaced, on 15 August 2017, by section 26 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
85 Court may order divestiture of assets or shares in respect of contravention of section 47
(1)
In any case where the court, on the application of the Commission, is satisfied that any person—
(a)
has contravened section 47; or
(b)
has been found in any other proceedings under this Part 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)
give directions for the disposal by that person of any assets or shares in accordance with an undertaking given by the person under section 69A.
(2)
An application under subsection (1) may be made at any time 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).
Section 85 heading: amended, on 15 August 2017, by section 32(2)(a) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
85A Pecuniary penalties for contravention of undertaking
(1)
The court may, on the application of the Commission, order a person to pay a pecuniary penalty to the Crown if the court is satisfied that the person—
(a)
has contravened an undertaking accepted under section 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 contravene an undertaking accepted under section 69A; or
(e)
has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by any other 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 acquisition to which the undertaking relates has proceeded.
(3)
The amount of pecuniary penalty must not, in respect of each act or omission, exceed $500,000.
(4)
In setting the amount of pecuniary penalty, the court must take 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)
whether the person has obstructed or hindered the Commission 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 preventing a substantial lessening of competition in a market:
(e)
whether the person or an interconnected body corporate 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.
Section 85A: inserted, on 14 October 2008 (applying only to undertakings under section 69A that are accepted in relation to clearances given or authorisations granted on notices under section 66 or 67 that are registered after that date), 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 undertaking relates has proceeded, the court 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 obligation under the undertaking was required to be met.
Section 85B: inserted, on 14 October 2008 (applying only to undertakings under section 69A that are accepted in relation to clearances given or authorisations granted on notices under section 66 or 67 that are registered after that date), 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 accept the undertaking under section 69A:
(b)
whether the undertaking under section 69A is still necessary or desirable:
(c)
whether any of the terms of the undertaking under section 69A are still necessary or desirable:
(d)
the extent to which the contravention of the undertaking under section 69A may have lessened competition in a market.
Section 85C: inserted, on 14 October 2008 (applying only to undertakings under section 69A that are accepted in relation to clearances given or authorisations granted on notices under section 66 or 67 that are registered after that date), 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 requirement (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 concerned in, or party to, the contravention by any other person of any such requirement; or
(f)
has conspired with any other person to contravene any such requirement.
(2)
In subsection (1) and section 86B, a reference to contravening an information disclosure requirement includes all or any of the following:
(a)
failing to disclose information required to be disclosed:
(b)
failing to disclose information in the form or within the time required:
(c)
disclosing information under an information disclosure requirement that is false or misleading.
(3)
The amount of pecuniary penalty must not, in respect of each act or omission, exceed $500,000 in the case of an individual, or $5,000,000 in any other case.
(4)
In determining the amount of pecuniary penalty, the court must have regard to all relevant matters, including—
(a)
the nature and extent of the contravention; and
(b)
the circumstances in which the contravention took place (including whether the contravention was intentional, inadvertent, or caused by negligence); and
(c)
whether the person has previously been found by the court in proceedings under this Part to have engaged in similar conduct.
(5)
A supplier may not be liable to more than 1 pecuniary penalty in respect of the same conduct.
(6)
Proceedings under this section may be commenced at any time 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).
Section 86(3): amended, on 15 August 2017, by section 32(2)(b) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
86A Order requiring information disclosure requirement to be complied with
(1)
The court may, on application by the Commission, order a supplier 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, or period within which, the supplier must comply with the requirement.
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)
the person is subject to an order under section 86A and fails to comply with the order by the date, or within the period, specified.
(2)
A person who commits an offence under subsection (1) is liable on conviction to a fine not exceeding $200,000 in the case of an individual, or $1,000,000 in any other case.
(3)
[Repealed]Section 86B: inserted, on 14 October 2008, by section 15 of the Commerce Amendment Act 2008 (2008 No 70).
Section 86B(2): amended, on 15 August 2017, by section 32(2)(b) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 86B(2): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
Section 86B(3): repealed, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
86C Orders where negotiate/arbitrate regulation applies
(1)
The court may, on the application of a party (party A) to negotiation or arbitration in respect of goods or services that 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 section 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 made within 1 year after the date on which the failure to co-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 compensation for a similar failure in proceedings under 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, quality, or performance 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)
has contravened any price-quality or quality or performance requirement applying 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 concerned in, or party to, the contravention by any other 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, quality, or performance requirement—
(a)
refers to a requirement imposed by a determination made under section 52P in relation to goods or services that are subject to any of the following:
(i)
default/customised price-quality regulation imposed under Part 4:
(ii)
individual price-quality regulation imposed under Part 4:
(iii)
quality regulation imposed under subpart 12 of Part 4:
(iv)
performance requirement regulation imposed under subpart 12 of Part 4:
(v)
price-quality regulation imposed under subpart 12 of Part 4; and
(b)
means 1 or more of the following:
(i)
failing to comply with the requirements for prices, whether by charging a price for the goods or services that is higher than the maximum price permitted or is lower than the minimum price required, or by receiving more or less revenue than is permitted or required, or in any other way:
(ii)
refusing or failing to comply with any quality standards, or any incentives to maintain or improve quality of supply under Schedule 7 (which relates to regulation of water services), required under the price-quality or quality regulation:
(iii)
refusing or failing to comply with any performance requirements set out in a section 52P determination relating to price-quality, quality, or performance requirement regulation.
(2A)
In this section and sections 87A to 87C, a reference to price-quality, quality, or performance requirement regulation means any type of regulation referred to in subsection (2)(a).
(3)
The amount of pecuniary penalty must not, in respect of each act or omission, exceed $500,000 in the case of an individual, or $5,000,000 in any other case.
(4)
In setting the amount of pecuniary penalty, the court must take into account all of the following matters:
(a)
the nature and extent of the contravention:
(b)
the nature and extent of any loss or damage suffered by any person as a result of the contravention:
(c)
the circumstances in which the contravention took place (including whether the contravention was intentional, inadvertent, or caused by negligence):
(d)
whether or not the person has previously been found by the court in proceedings under this Part to have engaged in similar conduct.
(5)
A supplier may not be liable to more than 1 pecuniary penalty in respect of the same conduct.
(6)
Proceedings under this section may be commenced at any time 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).
Section 87 heading: amended, on 27 August 2025, by section 18(1) of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Section 87(1)(a): amended, on 27 August 2025, by section 18(2) of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Section 87(2): replaced, on 27 August 2025, by section 18(3) of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Section 87(2A): inserted, on 27 August 2025, by section 18(4) of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Section 87(3): amended, on 15 August 2017, by section 32(2)(b) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
87A Compensation for contravention of price-quality, quality, or performance 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, quality, or performance requirement, the court may, in addition, order the person to pay compensation to any person who has suffered, or is likely 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)
The application must be made within 1 year of the date of the pecuniary penalty order.
(4)
The court may make an order under this section whether or not 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).
Section 87A heading: amended, on 27 August 2025, by section 19(1) of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Section 87A(1): amended, on 27 August 2025, by section 19(2) of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
87B Offence relating to price-quality, quality, or performance requirement regulation
(1)
A person commits an offence if—
(a)
the person, knowing that particular goods or services are subject to price-quality, quality, or performance requirement regulation, intentionally contravenes a price-quality, quality, or performance requirement in respect of the goods or services; or
(b)
the person is subject to an order under section 87C(1)(b) and fails to comply with the order.
(2)
A person who commits an offence under subsection (1) is liable on conviction to a fine not exceeding $200,000 in the case of an individual, or $1,000,000 in any other case.
(3)
[Repealed]Section 87B: inserted, on 14 October 2008, by section 15 of the Commerce Amendment Act 2008 (2008 No 70).
Section 87B heading: amended, on 27 August 2025, by section 20(1) of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Section 87B(1)(a): replaced, on 27 August 2025, by section 20(2) of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Section 87B(2): amended, on 15 August 2017, by section 32(2)(b) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 87B(2): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
Section 87B(3): repealed, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
87C Injunction and other orders relating to price-quality, quality, or performance requirement regulation
(1)
If the court is satisfied that goods or services that are subject to price-quality, quality, or performance requirement regulation are being supplied, or are likely to be supplied, in contravention of any price-quality, quality, or performance requirement applying with respect to those goods or services, the court may do either or both of the following:
(a)
grant an injunction restraining any supplier of those goods or services from supplying them in contravention of the price-quality, quality, or performance requirement:
(b)
make an order requiring the supplier to supply the goods or services in accordance with the price-quality, quality, or performance requirement applying to them.
(2)
An application for an injunction or an order under this section may be made by any person.
Section 87C: inserted, on 14 October 2008, by section 15 of the Commerce Amendment Act 2008 (2008 No 70).
Section 87C heading: amended, on 27 August 2025, by section 21(1) of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Section 87C(1): replaced, on 27 August 2025, by section 21(2) of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Section 87C(2): amended, on 26 October 2018, by section 20(2) of the Commerce Amendment Act 2018 (2018 No 42).
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)
if it appears to the court that, in the event that an injunction is not granted, it is likely that the person will engage 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 of that kind and whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind.
(3A)
In determining whether to grant an interim injunction under this section, the court must give any weight that the court considers appropriate to the interests of consumers or, as the case 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 interim injunction under this Part, the court must not, as a condition of granting an interim injunction, require the Commission to give an undertaking as to damages.
(2)
However, in determining the Commission’s application for the grant of an interim injunction, the court must not take into account that the Commission is not required to give an undertaking as to damages.
Section 88A: inserted, on 26 May 2001, by section 23 of the Commerce Amendment Act 2001 (2001 No 32).
89 Other orders
(1)
Where, in any proceedings under this Part, the court finds that 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 injunction or makes any other order under this Part, make such order 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 given effect 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)
varying the contract, in such manner as it thinks fit, 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 party to the covenant or any person claiming through or under any such person, make an order—
(a)
varying the covenant, in such manner as it thinks fit, not being a manner inconsistent with the provisions of this Act:
(b)
requiring any party to the covenant to make restitution or pay compensation to any other person who, but for section 28(4) would be bound by or 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 subpart 5 of Part 2 of the Contract and Commercial Law Act 2017 applies to any contract entered into in contravention of this Act or to any contract which contains a provision the giving effect to of which would 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 that the contract contains a particular provision, or the contract contains a provision which if given effect to would contravene 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(3): amended, on 5 April 2023, by section 39 of the Commerce Amendment Act 2022 (2022 No 11).
Section 89(3)(b): amended, on 5 April 2023, by section 39 of the Commerce Amendment Act 2022 (2022 No 11).
Section 89(5): amended, on 1 September 2017, by section 347 of the Contract and Commercial Law Act 2017 (2017 No 5).
Section 89(7): added, on 14 October 2008, by section 16 of the Commerce Amendment Act 2008 (2008 No 70).
90 Conduct by employees, agents, and others
(1)
In proceedings under this Part in respect of conduct engaged in by a person other than an individual (person A), if it is necessary to establish the state of mind of person A it is sufficient to show that a director, employee, or agent of person A, acting within the scope of the director’s, employee’s, or agent’s actual or apparent authority, had that state of mind.
(2)
Conduct by a person (person B) is deemed for the purposes of this Act also to be the conduct of a person other than an individual (person A) if, at the time of the conduct,—
(a)
person B was a director, employee, or agent of person A, acting within the scope of person B’s actual or apparent authority; or
(b)
person B was a person who was acting on the direction, or with the consent or agreement (express or implied), of a director, employee, or agent of person A who was acting within the scope of the director’s, employee’s, or agent’s actual or apparent authority.
(3)
In civil proceedings under this Part in respect of conduct engaged in by an individual (person C), if it is necessary to establish the state of mind of person C it is sufficient to show that an employee or agent of person C, acting within the scope of the employee’s or agent’s actual or apparent authority, had that state of mind.
(4)
In civil proceedings under this Part, conduct by a person (person B) is deemed for the purposes of this Act also to be the conduct of an individual (person C) if, at the time of the conduct,—
(a)
person B was acting at the direction, or with the consent or agreement (express or implied), of person C; or
(b)
person B was an employee or agent of person C and acting within the scope of person B’s actual or apparent authority; or
(c)
person B was a person who was acting on the direction, or with the consent or agreement (express or implied), of an employee or agent of person C who was acting within the scope of the employee’s or agent’s actual or apparent authority.
(5)
A reference in this section to the state of mind of a person includes a reference to—
(a)
the knowledge, intention, opinion, belief, or purpose of the person and the person’s reasons for that intention, opinion, belief, or purpose; and
(b)
the state of mind of a person outside New Zealand.
Section 90: replaced, on 15 August 2017, by section 27 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Appeals from determinations of Commission
91 Appeals in relation to determinations by Commission
(1)
There is a right of appeal to the High Court under this subsection 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)
how information disclosure regulation or negotiate/arbitrate regulation applies to regulated suppliers; or
(ii)
the default price-quality path that applies to regulated suppliers; or
(iii)
how revenue threshold regulation applies to regulated suppliers under Part 3 of Schedule 7; or
(iv)
the quality path that applies to regulated suppliers under Part 4 of Schedule 7; or
(v)
a performance requirement that applies to regulated suppliers under Part 5 of Schedule 7:
(b)
an input methodology determination (as defined in section 52Z, and for which a separate appeal right is given under that section).
(1A)
An appeal against a section 52P determination may not include an appeal against all or part of an input methodology, 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 within 20 working days after the date of the determination appealed against or within such further time as the court may allow.
Compare: 1975 No 113 s 42
Section 91(1): substituted, on 14 October 2008, by section 17 of the Commerce Amendment Act 2008 (2008 No 70).
Section 91(1)(a)(iii): inserted, on 27 August 2025, by section 22 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Section 91(1)(a)(iv): inserted, on 27 August 2025, by section 22 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Section 91(1)(a)(v): inserted, on 27 August 2025, by section 22 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
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 pursuant to section 91:
(a)
in the case of an appeal against a determination of the Commission in relation to an application for an authorisation under section 58 or 67, the applicant and any other person who—
(i)
has a direct and significant interest in the application; and
(ii)
participated in the Commission’s processes leading up to the determination:
(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:
(ba)
in the case of an appeal against a determination of the Commission under section 65A,—
(i)
the person who applied for the clearance; and
(ii)
any other person who is a party to the contract, arrangement, understanding, or covenant to which the application for clearance relates:
(c)
in the case of an appeal against a determination of the Commission under section 66 in relation to a notice seeking a clearance,—
(i)
the person who sought the clearance; and
(ii)
any person whose assets, or the shares in which, are proposed to be acquired pursuant to the clearance:
(d)
in the case of an appeal against a determination made under section 52P, any supplier or consumer (as defined in section 52C) of goods or services to which the determination relates:
(e)
[Repealed](f)
[Repealed]Section 92: amended, on 15 August 2017, by section 32(2)(d) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 92(a): replaced, on 15 August 2017, by section 28(1) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 92(ba): inserted, on 15 August 2017, by section 28(2) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 92(ba)(ii): amended, on 5 April 2023, by section 40 of the Commerce Amendment Act 2022 (2022 No 11).
Section 92(c): replaced, on 15 August 2017, by section 28(3) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 92(d): substituted, on 14 October 2008, by section 18 of the Commerce 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): repealed, on 26 October 2018, by section 15 of the Commerce Amendment Act 2018 (2018 No 42).
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)
Notwithstanding anything in section 93, the court may, in any case, instead of determining any appeal under that section, direct the Commission to reconsider, either generally or in respect of any specified matters, the whole or any 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 whole or any part of the matter that is referred 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, the court may not stay the application of a determination made under section 52P in respect of which an appeal is 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 proceedings under this Act (whether heard in public or in private); 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 appeal before the High Court against any determination of the 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 56 of the Senior Courts Act 2016 shall apply to any such appeal.
(2)
In determining whether to grant leave to appeal under this section, the court to which the application for leave is made shall 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)
such other matters as in the particular circumstances the court thinks fit.
(3)
The court granting leave under this section may in its discretion impose such conditions as it thinks fit, whether as to costs 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)
a decision or order of the High Court under section 52Z:
(b)
a decision or order of the High Court on an appeal under section 91(1) or (1B) against a determination of the Commission made under section 52P.
Section 97(1): amended, on 1 March 2017, by section 183(b) of the Senior Courts Act 2016 (2016 No 48).
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
Powers relating to evidence
Heading: inserted, on 5 May 2022, by section 41 of the Commerce Amendment Act 2022 (2022 No 11).
98 Commission may require person to supply information or documents or give evidence
(1)
Where the Commission considers it necessary or desirable for the purposes of carrying out its functions and exercising its powers under this Act, the Commission may, by notice in writing served on any person, require that person—
(a)
to furnish to the Commission, by writing signed by that person or, in the case of a body corporate, by a director or competent servant or agent of the body corporate, within the time and in the manner specified in the notice, any information or class of information specified in the notice; or
(b)
to produce to the Commission, or to a person specified in the notice acting on its behalf in accordance with the notice, any document or class of documents specified in 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.
(2)
For the purposes of subsection (1), the Commission’s powers under this Act include the power to investigate whether an exception or exemption from this Act (whether under this Act or any other enactment) applies to a person or to a person’s conduct.
(3)
A person may appear before the Commission under subsection (1)(c) by audio link or audiovisual link if the Commission and the person agree.
(4)
In this section,—
audio link means facilities (for example, telephone facilities) that enable audio communication between the Commission and a person when either or both of them are not physically present at the place specified in the notice
audiovisual link means facilities that enable audio and visual communication between the Commission and a person when either or both of them are not physically present at the place specified in the notice.
Section 98(1): substituted, on 1 July 1990, by section 34 of the Commerce Amendment Act 1990 (1990 No 41).
Section 98(2): inserted, on 15 August 2017, by section 29 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 98(3): inserted, on 16 December 2017, by section 45 of the Electronic Interactions Reform Act 2017 (2017 No 50).
Section 98(4): inserted, on 16 December 2017, by section 45 of the Electronic Interactions Reform Act 2017 (2017 No 50).
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 section 99A.
(2)
An issuing officer (within the meaning of section 3 of the Search and Surveillance Act 2012) who is satisfied, on an application made in the manner provided in subpart 3 of Part 4 of that Act by a person who is authorised under subsection (1) that there are reasonable grounds to believe that it is necessary for the purpose of ascertaining whether or not 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 section 99A, for an employee of the Commission to search any place may, by warrant, authorise that employee to search a place specified in the warrant.
(3)
The provisions of Part 4 of the Search and Surveillance Act 2012 (except sections 118 and 119) apply, with any necessary modifications.
(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 of this Act.
(5)
For the purpose of allowing the Commission to provide, under section 99I, compulsorily acquired information and investigative assistance to a recognised overseas regulator, every reference in this section to a contravention of this Act must be taken to include a reference to a contravention of any foreign enactment that is identified (as required by section 99G(1)(b)) in the co-operation arrangement concerning that recognised overseas regulator.
Section 98A: inserted, on 1 July 1990, by section 34 of the Commerce Amendment Act 1990 (1990 No 41).
Section 98A(2): amended, on 1 October 2012, by section 313(2) of the Search and Surveillance Act 2012 (2012 No 24).
Section 98A(3): replaced, on 1 October 2012, by section 313(3) of the Search and Surveillance Act 2012 (2012 No 24).
Section 98A(4): added, on 14 October 2008, by section 22 of the Commerce Amendment Act 2008 (2008 No 70).
Section 98A(4): amended, on 1 October 2012, by section 313(4) of the Search and Surveillance Act 2012 (2012 No 24).
Section 98A(5): inserted, on 24 October 2012, by section 4 of the Commerce (International Co-operation, and Fees) Amendment Act 2012 (2012 No 84).
98B Powers conferred by warrant
[Repealed]Section 98B: repealed, on 1 October 2012, by section 313(5) of the Search and Surveillance Act 2012 (2012 No 24).
98C Warrant to be produced
[Repealed]Section 98C: repealed, on 1 October 2012, by section 313(5) of the Search and Surveillance Act 2012 (2012 No 24).
98D Other duties of person who executes a warrant
[Repealed]Section 98D: repealed, on 1 October 2012, by section 313(5) of the Search and Surveillance Act 2012 (2012 No 24).
98E Duty to assist
[Repealed]Section 98E: repealed, on 1 October 2012, by section 313(5) of the Search and Surveillance Act 2012 (2012 No 24).
98F Power to inspect and take copies of documents, etc
[Repealed]Section 98F: repealed, on 1 October 2012, by section 313(5) of the Search and Surveillance Act 2012 (2012 No 24).
98G Commission may exercise powers notwithstanding other proceedings
The Commission may exercise any power under sections 98 and 98A notwithstanding that any proceedings, whether under Part 6 or otherwise, have been instituted in any court.
Section 98G: inserted, on 1 July 1990, by section 34 of the Commerce Amendment Act 1990 (1990 No 41).
Section 98G: amended, on 1 October 2012, by section 313(6) of the Search and Surveillance Act 2012 (2012 No 24).
98H Supply of information and documents in relation to section 36A
(1)
Where the Commission considers it necessary or desirable for the purposes of carrying out its functions and exercising its powers under this Act in relation to section 36A, the Commission 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)
to furnish to the Commission, by writing signed by that person or, in the case of a body corporate, by a director or competent servant or agent of the body corporate, within the time and in the manner specified in the notice, any information or class of information specified in the notice; or
(b)
to produce to the Commission, or to a person specified in the notice acting on its behalf in accordance with the notice, any document or class of documents specified in the notice.
(2)
A person who is required to furnish information or a class of information or produce any document or class of documents to the Commission pursuant to this section complies with this section if that person furnishes the information or that class of information or produces the document or that class of documents to the Australian Competition and Consumer Commission in accordance with the Competition and Consumer Act 2010.
Section 98H: inserted, on 1 July 1990, by section 34 of the Commerce Amendment Act 1990 (1990 No 41).
Section 98H(2): amended, on 15 August 2017, by section 32(2)(c) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 98H(2): amended, on 2 September 1996, by section 8 of the Commerce Amendment Act 1996 (1996 No 113).
99 Powers of Commission to take evidence
(1)
For the purposes of carrying out its functions and exercising its powers under this Act, the Commission may receive in evidence 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 section 98(1)(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 evidence before the Commission, whether pursuant to a notice or not, the Commission may, if it thinks fit, order any sum to be paid to that witness on account of his expenses, not exceeding the amount that would be payable to him if his attendance had 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): editorial change made by the PCO, on 9 May 2025, under sections 86(1) and 87(l)(iii) and (iv) of the Legislation Act 2019 (2019 No 58).
Power to share information and documents with public service agencies, statutory entities, Reserve Bank, and New Zealand Police
Heading: inserted, on 5 May 2022, by section 42 of the Commerce Amendment Act 2022 (2022 No 11).
99AA Sharing of information and documents with public service agencies, statutory entities, Reserve Bank, and New Zealand Police
(1)
The Commission may provide to a public service agency, a statutory entity, the Reserve Bank of New Zealand, or the New Zealand Police any information, or a copy of any document, that the Commission—
(a)
holds in relation to the performance or exercise of the Commission’s functions, powers, or duties under this Act or any other legislation; and
(b)
considers may assist the public service agency, statutory entity, the Reserve Bank, or the New Zealand Police in the performance or exercise of its functions, powers, or duties under this Act or any other legislation.
(2)
The Commission may provide information, or a copy of a document, under this section only if the Commission is satisfied that—
(a)
doing so will not substantially affect the performance of its other functions; and
(b)
appropriate protections are or will be in place for the purpose of maintaining the confidentiality of anything provided (in particular, information that is personal information within the meaning of the Privacy Act 2020).
(3)
The Commission may use any information, or a copy of any document, in the Commission’s performance or exercise of its functions, powers, or duties under any legislation if the information or copy is provided to the Commission—
(a)
by a public service agency, a statutory entity, the Reserve Bank, or the New Zealand Police under any legislation; or
(b)
by an overseas regulator.
(4)
In this section and section 99AB, statutory entity means an entity or office named in Schedule 1 of the Crown Entities Act 2004.
(5)
This section applies despite anything to the contrary in any contract, deed, or document.
(6)
Nothing in this section limits the Privacy Act 2020 or section 29 of the Fuel Industry Act 2020.
Section 99AA: inserted, on 5 May 2022, by section 42 of the Commerce Amendment Act 2022 (2022 No 11).
99AB Commission may impose conditions on provision of information or documents
(1)
The Commission may impose any conditions in relation to providing information, or a copy of a document, to a public service agency, a statutory entity, the Reserve Bank of New Zealand, or the New Zealand Police (whether provided in compliance with a request or otherwise).
(2)
The Commission must, in considering what conditions to impose, have regard to whether conditions are necessary or desirable in order to protect the privacy of any individual.
(3)
The conditions may include, without limitation, conditions relating to—
(a)
maintaining the confidentiality of anything provided (in particular, information that is personal information within the meaning of the Privacy Act 2020):
(b)
the storing of, the use of, or access to anything provided:
(c)
the copying, returning, or disposing of copies of documents provided:
(d)
payment of the costs incurred by the Commission in providing anything or in generally complying with a request.
(4)
This section does not limit section 100.
Section 99AB: inserted, on 5 May 2022, by section 42 of the Commerce Amendment Act 2022 (2022 No 11).
Assistance to overseas regulators
Heading: inserted, on 5 May 2022, by section 42 of the Commerce Amendment Act 2022 (2022 No 11).
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 Competition and Consumer Act 2010, 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 conviction to a fine not exceeding $10,000 in the case of an individual, or $30,000 in any other case.
Section 99A: inserted, on 1 July 1990, by section 36 of the Commerce Amendment Act 1990 (1990 No 41).
Section 99A heading: amended, on 2 September 1996, by section 9 of the Commerce Amendment Act 1996 (1996 No 113).
Section 99A(1): amended, on 15 August 2017, by section 32(2)(c) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 99A(1): amended, on 2 September 1996, by section 9 of the Commerce Amendment Act 1996 (1996 No 113).
Section 99A(2): amended, on 2 September 1996, by section 9 of the Commerce Amendment Act 1996 (1996 No 113).
Section 99A(3): amended, on 15 August 2017, by section 32(2)(b) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 99A(3): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
99B Purpose of sections 99C to 99P (which relate to assistance to overseas regulators)
The purpose of sections 99C to 99P is—
(a)
to provide for when and how the Commission may provide compulsorily acquired information and investigative assistance to overseas regulators; and
(b)
to clarify other matters relating to sharing other kinds of information with overseas regulators.
Section 99B: inserted, on 24 October 2012, by section 5 of the Commerce (International Co-operation, and Fees) Amendment Act 2012 (2012 No 84).
99C Definitions of terms used in sections 99B to 99P
In sections 99B to 99P, unless the context otherwise requires,—
co-operation arrangement means an arrangement concerning the Commission and an overseas regulator that is entered into under section 99E (a government-to-government co-operation arrangement) or section 99F (a regulator-to-regulator co-operation arrangement) for—
(a)
the provision by the Commission of compulsorily acquired information and investigative assistance to the overseas regulator; and
(b)
the provision by the overseas regulator of information and investigative assistance to the Commission
compulsorily acquired information means information that—
(a)
is acquired by the Commission, whether before or after this section comes into force, as a result of, or in relation to, the exercise by the Commission of any of its powers under section 98, 98A, or 98H, or any power incidental to those powers; and
(b)
is not in the public domain
investigative assistance includes providing assistance by way of exercising any power of the Commission under, or in relation to, section 98, 98A, or 98H, and any powers incidental to those powers
recognised overseas regulator means an overseas regulator that is the subject of a co-operation arrangement.
Section 99C: inserted, on 24 October 2012, by section 5 of the Commerce (International Co-operation, and Fees) Amendment Act 2012 (2012 No 84).
Section 99C overseas regulator: repealed, on 5 May 2022, by section 43 of the Commerce Amendment Act 2022 (2022 No 11).
99D Restrictions on providing compulsorily acquired information and investigative assistance
The Commission must not provide compulsorily acquired information or investigative assistance to an overseas regulator unless the information or assistance is provided—
(a)
to a recognised overseas regulator in accordance with a co-operation arrangement; and
(b)
in accordance with sections 99I to 99K.
Section 99D: inserted, on 24 October 2012, by section 5 of the Commerce (International Co-operation, and Fees) Amendment Act 2012 (2012 No 84).
99E Government-to-government co-operation arrangements
(1)
The Minister may, on behalf of the Government of New Zealand, enter into a co-operation arrangement concerning an overseas regulator with—
(a)
the government of the country in which the overseas regulator is established; or
(b)
if the overseas regulator is established by an international body, the governing body of that international body.
(2)
Before entering into a co-operation arrangement concerning an overseas regulator, the Minister must—
(a)
have regard to the legal framework relating to the use of compulsorily acquired information in the jurisdiction of the overseas regulator; and
(b)
have regard to the potential consequences for New Zealand consumers and businesses of providing compulsorily acquired information or investigative assistance to the overseas regulator; and
(c)
consult with the Privacy Commissioner on any privacy issues arising from the proposed co-operation arrangement.
(3)
The Minister must not enter into a co-operation arrangement unless he or she is satisfied that entering into the arrangement is not inconsistent with any of New Zealand’s obligations under international agreements, conventions, or treaties.
Section 99E: inserted, on 24 October 2012, by section 5 of the Commerce (International Co-operation, and Fees) Amendment Act 2012 (2012 No 84).
99F Regulator-to-regulator co-operation arrangements
(1)
The Commission may, with the prior written approval of the Minister, enter into a co-operation arrangement with an overseas regulator.
(2)
The Minister may not give approval to a co-operation arrangement under this section unless the Minister—
(a)
has had regard to the matters specified in section 99E(2)(a) and (b) and has consulted as specified in section 99E(2)(c); and
(b)
is satisfied of the matter specified in section 99E(3).
Section 99F: inserted, on 24 October 2012, by section 5 of the Commerce (International Co-operation, and Fees) Amendment Act 2012 (2012 No 84).
99G Content of co-operation arrangements
(1)
Every co-operation arrangement must—
(a)
identify the overseas regulator that it concerns; and
(b)
identify the foreign enactments in connection with which the recognised overseas regulator may seek compulsorily acquired information and investigative assistance from the Commission; and
(c)
set out how any compulsorily acquired information that is provided may be used by the overseas regulator, and how it is to be kept secure.
(2)
A co-operation arrangement may also—
(a)
provide for the reimbursement of the Commission for costs incurred in providing the information or assistance; and
(b)
include other conditions on the provision of compulsorily acquired information or investigative assistance.
Section 99G: inserted, on 24 October 2012, by section 5 of the Commerce (International Co-operation, and Fees) Amendment Act 2012 (2012 No 84).
99H Procedures relating to co-operation arrangements
(1)
Every co-operation arrangement must be in writing and be signed by,—
(a)
in the case of a government-to-government co-operation arrangement entered into under section 99E, the Minister and the person occupying, with respect to the overseas regulator, an equivalent position to that of the Minister, or any other person that the relevant government or governing body considers appropriate:
(b)
in the case of a regulator-to-regulator co-operation arrangement entered into under section 99F, the chairperson of the Commission and the person occupying the equivalent position in relation to the overseas regulator.
(2)
No later than 15 working days after a co-operation arrangement is entered into,—
(a)
the Minister or the Commission, as appropriate, must publish a notice in the Gazette that—
(i)
states that the arrangement has been entered into; and
(ii)
identifies the overseas regulator concerned; and
(iii)
identifies the parties to the arrangement; and
(iv)
states when the arrangement comes into effect; and
(b)
the Commission must publish a copy of the co-operation arrangement on its Internet site, and must keep it there while the arrangement continues in force.
(3)
Subsections (1) and (2) apply with all necessary modifications to every amendment to a co-operation arrangement.
Section 99H: inserted, on 24 October 2012, by section 5 of the Commerce (International Co-operation, and Fees) Amendment Act 2012 (2012 No 84).
99I Providing compulsorily acquired information and investigative assistance
(1)
Following a request by a recognised overseas regulator made in accordance with a co-operation arrangement, the Commission may do either or both of the following:
(a)
provide compulsorily acquired information to the recognised overseas regulator:
(b)
provide investigative assistance to the recognised overseas regulator.
(2)
Before providing compulsorily acquired information or investigative assistance under subsection (1), the Commission must be satisfied that—
(a)
providing the information or assistance will, or is likely to, assist the recognised overseas regulator in performing its functions or exercising its powers in relation to competition law; and
(b)
the provision of the information or assistance will not be inconsistent with the co-operation arrangement; and
(c)
the provision of the information or assistance will not significantly prejudice New Zealand’s international trade interests.
(3)
If the Commission considers, after consultation with the Ministry of Foreign Affairs and Trade, that a request for compulsorily acquired information or investigative assistance may have significant trade consequences for New Zealand, the Commission must refer the matter to the Minister of Trade.
(4)
If a request is referred to the Minister of Trade, the Commission is deemed to be satisfied for the purpose of subsection (2)(c) only if the Minister of Trade states, in writing, that he or she is satisfied that the provision of the information or assistance will not significantly prejudice New Zealand’s international trade interests.
(5)
In considering whether to provide compulsorily acquired information or investigative assistance in accordance with a co-operation arrangement, the Commission must also consider—
(a)
whether complying with the request will substantially affect the Commission’s ability to perform its other functions under this Act or any other enactment; and
(b)
whether the recognised overseas regulator could more conveniently obtain the information or assistance from another source; and
(c)
whether the request would, in the opinion of the Commission, be more appropriately dealt with under the Mutual Assistance in Criminal Matters Act 1992.
Section 99I: inserted, on 24 October 2012, by section 5 of the Commerce (International Co-operation, and Fees) Amendment Act 2012 (2012 No 84).
99J Conditions on providing compulsorily acquired information and investigative assistance
(1)
If the Commission provides compulsorily acquired information or investigative assistance to a recognised overseas regulator, the Commission may impose conditions on such provision, including conditions relating to—
(a)
maintaining the confidentiality of information; and
(b)
the storage or use of, or access to, anything provided; and
(c)
the copying, returning, or disposal of copies of anything provided; and
(d)
the payment of costs incurred by the Commission in providing anything or in otherwise complying with a request for information or investigative assistance.
(2)
The Commission must not provide copies of statements made by any person in answer to a question put by or before the Commission that might tend to incriminate the person, unless the recognised overseas regulator gives a written undertaking—
(a)
that it will not use such statements as evidence—
(i)
in criminal proceedings against the person (other than in proceedings in respect of the falsity of the person’s testimony); or
(ii)
in proceedings against the person for a pecuniary penalty or any equivalent proceedings; and
(b)
that, to the extent that it is within the ability of the overseas regulator to do so, it will ensure that such statements are not used by any other person, authority, or agency as evidence in proceedings referred to in paragraph (a).
Section 99J: inserted, on 24 October 2012, by section 5 of the Commerce (International Co-operation, and Fees) Amendment Act 2012 (2012 No 84).
99K Notice to persons affected by provision of information
(1)
If the Commission provides any compulsorily acquired information to a recognised overseas regulator, the Commission must, as soon as practicable after providing the information, notify the following people that the information has been provided:
(a)
the person from whom the information was acquired:
(b)
every person to whom the information relates.
(2)
However, the Commission need not notify a person as required by subsection (1) if—
(a)
giving notice might compromise any investigation conducted, or to be conducted, by the Commission or any overseas regulator; or
(b)
giving notice would prejudice the maintenance of the law (including the prevention, investigation, and detection of offences, and the right to a fair trial) in New Zealand or elsewhere; or
(c)
it is not practicable in the circumstances to give notice to the person.
Section 99K: inserted, on 24 October 2012, by section 5 of the Commerce (International Co-operation, and Fees) Amendment Act 2012 (2012 No 84).
99L Reporting on use of co-operation arrangements
The Commission’s annual report must report on the use and operation of co-operation arrangements during the period covered by the report, and include information on—
(a)
the number and general nature of requests for information and investigative assistance received from recognised overseas regulators; and
(b)
the number and general nature of requests for information and investigative assistance that the Commission has made to recognised overseas regulators.
Section 99L: inserted, on 24 October 2012, by section 5 of the Commerce (International Co-operation, and Fees) Amendment Act 2012 (2012 No 84).
99M Sharing of non-compulsorily acquired information not affected
Except to the extent that non-compulsorily acquired information is dealt with in a co-operation arrangement, the ability of the Commission to provide non-compulsorily acquired information to an overseas regulator is not affected by—
(a)
(b)
whether or not the overseas regulator is a recognised overseas regulator.
Section 99M: inserted, on 24 October 2012, by section 5 of the Commerce (International Co-operation, and Fees) Amendment Act 2012 (2012 No 84).
99N Information provided by consent
Nothing in sections 99B to 99L or any co-operation arrangement prevents the Commission providing any information to an overseas regulator with the consent of the person who is the subject of the information.
Section 99N: inserted, on 24 October 2012, by section 5 of the Commerce (International Co-operation, and Fees) Amendment Act 2012 (2012 No 84).
99O Part 4 information not to be provided
The Commission must not provide information to an overseas regulator that the Commission has obtained under, pursuant to, or for the purposes of Part 4, unless the information is already in the public domain.
Section 99O: inserted, on 24 October 2012, by section 5 of the Commerce (International Co-operation, and Fees) Amendment Act 2012 (2012 No 84).
99P Maintenance of privilege
(1)
If the Commission provides to an overseas regulator, for the purpose of assisting the overseas regulator to perform its competition law functions, a communication or information in respect of which the Commission has any privilege referred to in section 54, 56, or 57 of the Evidence Act 2006, the Commission is not to be taken as having waived its privilege in relation to that communication or information merely by providing it to the overseas regulator.
(2)
If the Commission receives from an overseas regulator, for the purpose of assisting the Commission to perform its competition law functions under this Act, a communication or information that, under the law of the country of the overseas regulator is subject to a privilege analogous to a privilege of a kind referred to in section 54, 56, or 57 of the Evidence Act 2006, that communication or information is subject to the analogous privilege in New Zealand, and the Evidence Act 2006 applies accordingly.
(3)
The Commission must not provide a communication or information that is subject to the privilege referred to in section 57 of the Evidence Act 2006 (which relates to settlement negotiation and mediation) to an overseas regulator unless every other party that has a privilege in relation to that communication or information consents to the Commission providing the communication or information to the overseas regulator.
(4)
To avoid doubt, this section applies whether or not a communication or information is provided under a co-operation arrangement.
Section 99P: inserted, on 24 October 2012, by section 5 of the Commerce (International Co-operation, and Fees) Amendment Act 2012 (2012 No 84).
Offences, regulations, and administrative provisions
Heading: inserted, on 5 May 2022, by section 44 of the Commerce Amendment Act 2022 (2022 No 11).
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 authorisation under Part 5, or in the course of carrying out any other investigation or inquiry under this Act, make an order prohibiting—
(a)
the publication or communication of any information or document or evidence which is furnished or given or tendered to, or obtained by, the Commission in connection with the operations of the Commission:
(b)
the giving of any evidence involving any such information, document, or evidence.
(2)
Any order made by the Commission under subsection (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 application for, or any notice seeking, any clearance or authorisation 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)
where that order was made in connection with any other investigation or inquiry conducted by the Commission, after the conclusion of that investigation or inquiry.
(3)
On the expiry of any order made under subsection (1), the provisions of the Official Information Act 1982 shall apply in respect of any information, document, or evidence that was the subject of that order.
(4)
Every person who, contrary to any order made by the Commission under subsection (1), publishes or communicates any information or document or evidence commits an offence and is liable, on conviction, to a fine not exceeding $4,000 in the case of a person not being a body corporate, and $12,000 in the case of a body corporate.
(5)
For the purposes of this section, an inquiry includes a competition study (as defined in section 48).
Section 100: substituted, on 1 April 1987, by section 25(1) of the Official Information Amendment Act 1987 (1987 No 8).
Section 100(4): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).
Section 100(5): inserted, on 26 October 2018, by section 16 of the Commerce Amendment Act 2018 (2018 No 42).
100A Commission may state case for opinion of High Court
(1)
The Commission may at any time state a case for the opinion of the court on any question of law arising in any matter before it.
(2)
The court may order the removal into the Court of Appeal of any case stated for the opinion of the court under this section.
(3)
The court or the Court of Appeal, as the case may be, shall hear and determine the question, and shall remit the case with 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)
Any notice given by the Commission under or for the purposes of this Act shall be sufficiently given if it is in writing under the seal of the Commission or is signed by the chairperson, or by 1 or more of the members of the Commission, or by any person purporting to act by direction of the Commission, and is served in accordance with section 102 on the person or persons primarily concerned therewith or on any person or organisation 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)
A notice or any other document required or authorised to be served on or given to a person for the purposes of this Act may be served or given by—
(a)
delivering it to the person; or
(b)
leaving it at the person’s usual or last known place of residence or business or at the address specified by the person in any notice, application, or other document given to the Commission under this Act; or
(c)
sending it by post to the person’s usual or last known place of residence or business or to the address specified by the person in any notice, application, or other document given to the Commission under this Act; or
(d)
emailing it to the person at an email address that is used by the person.
(2)
A notice or any other document that is sent to a person by a service that records delivery must, in the absence of proof to the contrary, be treated as received by the person when it would have been delivered in the ordinary course of business for that service, and, in proving the delivery, it is sufficient to prove that the document was properly addressed and provided to the service.
(2A)
In the absence of proof to the contrary, a notice or any other document that is emailed to a person must be treated as received by the person on the second working day after the date on which it is emailed, and, in proving that the document was emailed, it is sufficient to prove that the document was properly addressed and sent to the email address.
(3)
Where for any purpose under this Act a notice or document is required to be served on an association or body of persons the 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, service on the association or body shall, unless otherwise directed by the Commission, be deemed to be service on all persons who are members of the association or body or who are represented on the association or body by those members.
Compare: 1975 No 113 s 121(1)–(3)
Section 102(1): replaced, on 16 December 2017, by section 46 of the Electronic Interactions Reform Act 2017 (2017 No 50).
Section 102(2): replaced, on 16 December 2017, by section 46 of the Electronic Interactions Reform Act 2017 (2017 No 50).
Section 102(2A): inserted, on 16 December 2017, by section 46 of the Electronic Interactions Reform Act 2017 (2017 No 50).
103 Offences
(1)
No person shall—
(a)
without reasonable excuse, refuse or fail to comply with a notice under section 53B(1)(c), 53N, 53ZD, 57ZJ(2), or 98 or clause 36(2) or (4) of Schedule 7; 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 Commission pursuant to section 98(1)(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)
refuse to produce to the Commission any book or document that that person is required to produce.
(4)
A person who contravenes subsection (1), (2), or (3) commits an offence and is liable on conviction to,—
(a)
in the case of an individual, a fine not exceeding $100,000:
(b)
in any other case, a fine not exceeding $300,000.
(5)
Proceedings for an offence against subsection (4) may be commenced within 3 years after the matter giving rise to the contravention was discovered or ought reasonably to have 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 27 August 2025, by section 23 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Section 103(3): editorial change made by the PCO, on 16 August 2024, under sections 86(1) and 87(l)(iii) of the Legislation Act 2019 (2019 No 58).
Section 103(4): replaced, on 15 August 2017, by section 30(1) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 103(5): added, on 26 May 2001, by section 25 of the Commerce Amendment Act 2001 (2001 No 32).
Section 103(5): amended, on 15 August 2017, by section 30(2) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
104 Determinations of Commission
(1)
Any determination, clearance, authorisation, or decision given by the Commission under or for the purposes of this Act shall 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)
A copy of a determination, clearance, authorisation or decision of the Commission, certified to be a true copy by an employee of the Commission authorised in that behalf to certify copies of determinations, clearances, authorisations or decisions of the Commission, shall be received in all courts as evidence of the determination, clearance, authorisation or decision.
(3)
A document purporting to be a copy of a determination, clearance, authorisation or decision of the Commission and to be certified to be a true copy in accordance with subsection (2) shall, unless the contrary is established, be deemed to be such 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)
The Commission may not delegate its powers to grant, 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 Commerce Amendment Act 2008 (2008 No 70).
Section 105(2): repealed, on 14 October 2008, by section 24(2) of the Commerce Amendment Act 2008 (2008 No 70).
Section 105(3): repealed, on 14 October 2008, by section 24(2) of the Commerce 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 course of the operations of the Commission, unless it is shown 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 section 78 or section 78A or section 105 or section 105A of the Crimes Act 1961; or
(c)
the offence of attempting to commit an offence against section 78 or section 78A or section 105 or section 105A of the Crimes Act 1961.
(3A)
Section 59(3) of the Crown Entities Act 2004 (which provides 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 Commission that the person acted in bad faith.
(3B)
Sections 122 to 126 of the Crown Entities Act 2004 apply as if the conduct for which a person may be indemnified or insured under those sections were conduct that is covered by the protection from liability in this section.
(3C)
This section contains an exception to section 121 of the Crown Entities Act 2004.
(4)
A person shall not be excused from complying with any requirement to furnish information, produce documents, or give evidence under this Act, or, on appearing before the Commission, 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 or before the Commission shall not in criminal proceedings or in proceedings for pecuniary penalties, be admissible against that person.
(6)
Nothing in subsection (5) applies in respect of—
(a)
proceedings on a charge of perjury against the maker of the statement; or
(b)
proceedings on a charge of an offence against section 103.
(7)
No court or other person shall be entitled to require any member of the Commission, or any employee of the Commission or any other person present at any meeting of the Commission, to divulge or communicate any information furnished or obtained, documents produced, obtained or tendered, or evidence given, in connection with the operations of the Commission.
(8)
Nothing in subsection (7) applies in respect of—
(a)
any proceedings referred to in subsection (3) or subsection (6); or
(b)
any proceedings to which the Commission is a party.
(9)
Anything said, or any information furnished, or any document 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, or given in proceedings in a court.
(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 Commission in the exercise or intended exercise of any of its functions 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 Commerce 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 Commerce Amendment Act 2008 (2008 No 70).
Section 106(5): amended, on 14 October 2008, by section 25(3) of the Commerce Amendment Act 2008 (2008 No 70).
Section 106(6)(b): amended, on 14 October 2008, by section 25(4) of the Commerce 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)
the signature of any person holding, or who has held, office as the chairperson, deputy chairperson, or a member of the Commission on a document that appears to be a document made on behalf of the Commission:
(c)
the official seal of the Australian Competition and Consumer Commission:
(d)
the official signature of any person holding, or who has held, office as the chairperson, deputy chairperson, or a member, of the Australian Competition and Consumer Commission on a document that appears to be a document made on behalf of that Commission.
Section 106A: inserted, on 1 July 1990, by section 40 of the Commerce Amendment 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 Cartel prosecutors panel
(1)
The Solicitor-General must appoint a cartel prosecutors panel for the purpose of enabling prosecutions under section 82B to be taken speedily.
(2)
The Solicitor-General must consult with the chairperson before appointing the panel.
(3)
The panel must consist of those lawyers that the Solicitor-General considers appropriate.
(4)
Only members of the panel may conduct prosecutions under section 82B on behalf of the Crown.
(5)
In this section, lawyer has the meaning given in section 6 of the Lawyers and Conveyancers Act 2006.
Section 107: inserted, on 8 April 2021, by section 12 of the Commerce (Criminalisation of Cartels) Amendment Act 2019 (2019 No 9).
107 Annual report
[Repealed]Section 107: repealed, on 25 January 2005, by section 200 of the Crown Entities Act 2004 (2004 No 115).
108 Regulations
(1)
The Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes:
(a)
prescribing the procedure to be followed under this Act 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)
prescribing fees to be paid for the purposes of this Act:
(ca)
authorising the Commission, in its discretion or on any grounds that are prescribed, to refund any part of a prescribed fee paid by a person in connection with an application under Part 5 for an authorisation or a clearance:
(cb)
[Repealed](cc)
requiring the Commission to refund, within a prescribed time, all or any part of a fee paid in respect of an application under section 58 or 65A, or in respect of a notice under section 66(1) or 67(1), that is more than the cost to the Commission of determining that application or notice:
(cd)
prescribing a class or classes of persons who are exempt from the requirement to pay any fee prescribed for an application under section 58 or 65A or for a notice under section 66(1) or 67(1):
(d)
providing for such other matters as are contemplated by or necessary for giving full effect to the provisions of this Act and for its due administration.
(2)
Regulations under this section are secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
Compare: 1975 No 113 s 132
| Legislation Act 2019 requirements for secondary legislation made under this section | ||||
| Publication | PCO must publish it on the legislation website and notify it in the Gazette | LA19 s 69(1)(c) | ||
| Presentation | The Minister must present it to the House of Representatives | LA19 s 114, Sch 1 cl 32(1)(a) | ||
| Disallowance | It may be disallowed by the House of Representatives | LA19 ss 115, 116 | ||
| This note is not part of the Act. | ||||
Section 108(1)(ca): replaced, on 15 August 2017, by section 31(1) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 108(1)(cb): repealed, on 15 August 2017, by section 31(1) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 108(1)(cc): inserted, on 24 October 2012, by section 7 of the Commerce (International Co-operation, and Fees) Amendment Act 2012 (2012 No 84).
Section 108(1)(cc): amended, on 15 August 2017, by section 31(2) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 108(1)(cd): inserted, on 24 October 2012, by section 7 of the Commerce (International Co-operation, and Fees) Amendment Act 2012 (2012 No 84).
Section 108(1)(cd): amended, on 15 August 2017, by section 31(2) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Section 108(2): inserted, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
109 Commission may prescribe forms
For the purposes of this Act, the Commission may from time to time prescribe forms of applications, notices, and other documents required for the purposes of this Act.
Section 109: amended, on 15 August 2017, by section 32(2)(d) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
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)
The regulations and orders specified in Schedule 4 are hereby 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 commencement of this Act, and any proceedings for any such offence may be taken as if this Act had not been passed.
(6)
Unless the context otherwise requires, in any other enactment a reference to the Examiner of Trade Practices and Prices appointed under section 10 of the Trade Practices Act 1958 shall be read as a reference to the Secretary of Trade and Industry.
111 Transitional provisions in respect of certain contracts, arrangements, or understandings
(1)
Nothing in sections 27 and 29 and sections 80 to 82 shall have any application before 1 March 1987 to the giving effect to a provision of a contract entered into on or before 11 June 1985.
(2)
Nothing in section 28 and sections 80 to 82 shall have any application before 1 March 1987 to the carrying out or enforcing of the terms of a covenant given before 11 June 1985.
(3)
[Repealed](4)
[Repealed](5)
Nothing in sections 27 and 29 and sections 80 to 82 shall have 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 section 29 of the Commerce Act 1975 was in force (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, under section 29 of the Commerce Act 1975 pursuant to subsection (10) of that section (being a trade practice to which section 18A of the Trade Practices Act 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 sections 80 to 82).
Section 111(3): repealed, on 1 March 1987, by section 2(3) of the Civil Aviation Amendment Act 1987 (1987 No 12).
Section 111(4): repealed, on 1 March 1987, by section 2(3) of the Civil Aviation 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 1AA Transitional, savings, and related provisions
Schedule 1AA: inserted, on 15 August 2017, by section 36 of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).
Part 1 Provisions relating to Commerce (Cartels and Other Matters) Amendment Act 2017
1 Interpretation
(1)
In this Part, Amendment Act 2017 means the Commerce (Cartels and Other Matters) Amendment Act 2017.
(2)
In this Part,—
(a)
a reference to section 30, section 58A, section 65A, or section 80A (or a provision of that section) is a reference to that section (or provision) as amended, inserted, or substituted by the Amendment Act 2017 (subject to paragraph (b)); and
(b)
a reference to a former section (for example, former section 30) is a reference to that section as in force immediately before the commencement of this clause.
2 Transitional provisions for cartel prohibition under section 30
(1)
Section 30(1)(a) (which relates to entering into a contract or an arrangement, or arriving at an understanding, that contains a cartel provision) applies only to contracts, arrangements, or understandings that are entered into or arrived at after section 30 comes into force.
(2)
Section 30(1)(b) (which relates to giving effect to a cartel provision in a contract, arrangement, or understanding) applies only to conduct occurring after section 30 comes into force, but applies whether the contract, arrangement, or understanding is entered into or arrived at before or after section 30 comes into force, and whether or not the contract, arrangement, or understanding has been suspended at any time.
(3)
Subclauses (4) to (6) apply to a contract, arrangement, or understanding that was entered into or arrived at before the commencement of section 30 and that, at the time of that commencement, contained or may have contained a cartel provision.
(4)
Despite subclause (2), no proceedings under section 80, 80B, 80C, 81, or 82 may be commenced for a contravention of section 30(1)(b) or 80A occurring during the transitional period.
(5)
However,—
(a)
proceedings under former section 80 or 80C, or section 81 or 82, may be commenced in relation to conduct occurring during the transitional period as if former sections 30 to 33 were still in force during the transitional period; and
(b)
proceedings under section 80B may be commenced for a contravention of former section 80A occurring during the transitional period.
(6)
Former sections 30 to 33, 80, 80A, and 80C continue to have effect as if those sections had not been repealed or amended by the Amendment Act 2017, and section 89 continues to apply, for the purpose of—
(a)
investigating a contravention to which subclause (5) applies:
(b)
commencing or completing proceedings to which subclause (5) applies:
(c)
imposing a penalty or other remedy or making an order in proceedings to which subclause (5) applies.
(7)
In this section, transitional period means the 9-month period starting on the commencement of section 30.
Schedule 1AA clause 2(1): amended, on 8 April 2021, by section 13(1) of the Commerce (Criminalisation of Cartels) Amendment Act 2019 (2019 No 9).
Schedule 1AA clause 2(2): amended, on 8 April 2021, by section 13(2) of the Commerce (Criminalisation of Cartels) Amendment Act 2019 (2019 No 9).
Schedule 1AA clause 2(3): amended, on 8 April 2021, by section 13(3) of the Commerce (Criminalisation of Cartels) Amendment Act 2019 (2019 No 9).
3 Transitional provision for authorisations under section 58
Section 58A(1) and (2) applies to an authorisation that is given either before or after section 12 of the Amendment Act 2017 comes into force.
4 Transitional provision relating to amendments to Shipping Act 1987
[Repealed]Schedule 1AA clause 4: repealed, on the close of 13 August 2019, by Schedule 1AA clause 4(3).
5 Transitional provision for offences and contraventions under repealed or amended provisions
(1)
This clause applies to an offence committed under, or a contravention of, any provision of this Act repealed or amended by the Amendment Act 2017 before the commencement of the provision that repealed or amended that provision.
(2)
The provisions repealed or amended by the Amendment Act 2017 continue to have effect as if they had not been repealed or amended for the purpose of—
(a)
investigating an offence or a contravention to which this clause applies:
(b)
commencing or completing proceedings for an offence or a contravention to which this clause applies:
(c)
imposing a penalty, or making an order, in relation to an offence or a contravention to which this clause applies.
Part 2 Provisions relating to Commerce Amendment Act 2018
Schedule 1AA Part 2: inserted, on 26 October 2018, by section 21 of the Commerce Amendment Act 2018 (2018 No 42).
6 Interpretation
(1)
In this Part,—
Amendment Act 2018 means the Commerce Amendment Act 2018
commencement date means the date on which section 12 of the Amendment Act 2018 comes into force
Commissioner has the meaning given in former section 2(1)
outstanding application means an application for a cease and desist order under former section 74B(b) that was—
(a)
made by an employee of the Commission before the commencement date; but
(b)
not determined by a Commissioner (either by making, or declining to make, an order) before the commencement date.
(2)
In this Part, a reference to a former section (for example, former section 74B(b)) is a reference to that section as in force immediately before the commencement date.
Cease and desist orders
7 Term of appointment of cease and desist Commissioners
(1)
If there are no outstanding applications, the Commissioners cease to hold office on the commencement date.
(2)
If there are 1 or more outstanding applications, the Commissioners continue in office under the notice of appointment made under former section 74AA.
8 Applications for cease and desist orders made before commencement
Former sections 74A to 74C remain in force for the purposes of allowing a Commissioner to consider and determine an outstanding application.
9 Cease and desist orders continued
(1)
The following continue in force on and from the commencement date:
(a)
cease and desist orders made before the commencement date:
(b)
cease and desist orders made on or after the commencement date in accordance with clause 8.
(2)
Former section 74D continues to apply in relation to the orders described in subclause (1).
(3)
The High Court, on an application by the Commission or a person subject to a cease and desist order, may amend or revoke an order continued by subclause (1).
10 Entitlement to appeal cease and desist order
(1)
Former section 92(f) remains in force for the purpose of allowing a person to appeal against a determination of a Commissioner under former section 74A.
(2)
Subclause (1) applies irrespective of whether the determination was made—
(a)
before the commencement date; or
(b)
in accordance with clause 8, on or after the commencement date.
11 Court may not refer appeals back for reconsideration
(1)
This clause applies if—
(a)
the Commissioners have ceased to hold office, either under clause 7(1) or because the term of appointment referred to in former section 74AA(3)(a)(ii) has expired; but
(b)
an appeal against a determination of a Commissioner under former section 74A is being considered by the High Court.
(2)
The High Court—
(a)
must determine the appeal under section 93; and
(b)
despite section 94, must not refer any matter relating to the appeal back to the Commissioners to reconsider.
Part 3 Provision relating to COVID-19 Response (Further Management Measures) Legislation Act 2020
Schedule 1AA Part 3: inserted, on 16 May 2020, by section 3 of the COVID-19 Response (Further Management Measures) Legislation Act 2020 (2020 No 13).
12 Application of provisions after repeal
(1)
For the purposes of an application that is made during the epidemic period, sections 65AA to 65AD continue to apply as if they remained in force, despite their repeal by section 65AE, to the application including in relation to—
(a)
any authorisation or provisional authorisation granted on the application:
(b)
any appeal in relation to a determination of the Commission on the application.
(2)
Subclause (1) applies on and after section 65AE repeals sections 65AA to 65AD. If the epidemic period, as defined in section 65AA(1), ends on the date on which section 24 of the Commerce Amendment Act 2022 comes into force, see clause 20.
Schedule 1AA clause 12: inserted, on 16 May 2020, by section 3 of the COVID-19 Response (Further Management Measures) Legislation Act 2020 (2020 No 13).
Schedule 1AA clause 12(2): inserted, on 5 April 2023, by section 48(2) of the Commerce Amendment Act 2022 (2022 No 11).
Part 4 Provisions relating to Commerce (Grocery Sector Covenants) Amendment Act 2022
Schedule 1AA Part 4: inserted, on 30 June 2022, by section 5 of the Commerce (Grocery Sector Covenants) Amendment Act 2022 (2022 No 35).
13 Interpretation
In this Part, unless the context otherwise requires,—
Amendment Act means the Commerce (Grocery Sector Covenants) Amendment Act 2022
commencement date means the day after the date on which the Amendment Act receives the Royal assent
covenant has the same meaning as in section 28A
designation date, in relation to a person that becomes a designated grocery retailer after the commencement date, means the day on which that person becomes a designated grocery retailer (for example, if the person is designated as a designated grocery retailer under section 28C, the designation date is the day on which the Order in Council making the designation comes into force).
Schedule 1AA clause 13: inserted, on 30 June 2022, by section 5 of the Commerce (Grocery Sector Covenants) Amendment Act 2022 (2022 No 35).
14 Amendment Act applies to existing covenants
(1)
Section 28A applies in relation to any action referred to in section 27 or 28 that is taken on or after the commencement date, whether the covenant was given before, on, or after the commencement date.
(2)
If a person becomes a designated grocery retailer after the commencement date, section 28A applies in relation to any action referred to in section 27 or 28 that is taken on or after the person’s designation date, whether the covenant was given before, on, or after the designation date.
Schedule 1AA clause 14: inserted, on 30 June 2022, by section 5 of the Commerce (Grocery Sector Covenants) Amendment Act 2022 (2022 No 35).
15 Transitional arrangements for voluntary removal of grocery-related covenant initiated before repeal of section 28B
(1)
This clause applies to a revocation or modification that is initiated under section 28B before the date specified in section 28B(5) (the repeal date).
(2)
Section 28B, as it was immediately before the repeal date, continues to apply in relation to that revocation or modification on and after the repeal date.
Schedule 1AA clause 15: inserted, on 30 June 2022, by section 5 of the Commerce (Grocery Sector Covenants) Amendment Act 2022 (2022 No 35).
Part 5 Provisions relating to Commerce Amendment Act 2022
Schedule 1AA Part 5: inserted, on 5 October 2022, by section 48(2) of the Commerce Amendment Act 2022 (2022 No 11).
16 Interpretation
(1)
In this Part,—
1-year transitional period means the period that starts on the commencement date and ends at the close of the first anniversary of the commencement date
Amendment Act means the Commerce Amendment Act 2022
commencement date means the first anniversary of Royal assent for the Amendment Act.
(2)
In this Part,—
(a)
a reference to a section or Part (for example, section 36) is a reference to that section as in force on and from the commencement date; and
(b)
a reference to a former section or Part (for example, former Part 2) is a reference to that section or Part as in force immediately before the commencement date.
Schedule 1AA clause 16: inserted, on 5 October 2022, by section 48(2) of the Commerce Amendment Act 2022 (2022 No 11).
17 Authorisation under new section 58(6A) to (6D) may be granted before that section comes into force
(1)
This clause applies—
(a)
before the commencement date; but
(b)
as if sections 30, 36, 36A, 58(6A) to (6D), 58B, 59, 59A, and 61 were in force.
(2)
A person may apply to the Commission under section 58(6A) to (6D) for an authorisation.
(3)
The Commission may grant the authorisation.
(4)
Sections 58B, 59, 59A, and 61 apply in relation to an application made under this clause.
(5)
An authorisation granted under this clause may only take effect on or after the commencement date.
Schedule 1AA clause 17: inserted, on 5 October 2022, by section 48(2) of the Commerce Amendment Act 2022 (2022 No 11).
18 Application of cartel prohibition to covenants in force before commencement date
During the 1-year transitional period, nothing in section 30(1)(b) applies in relation to a covenant that is given, or required to be given, before the commencement date.
Schedule 1AA clause 18: inserted, on 5 April 2023, by section 48(3) of the Commerce Amendment Act 2022 (2022 No 11).
19 Application of sections 36 and 36A to contracts, arrangements, understandings, and covenants in force before commencement date
Sections 36 and 36A apply to conduct that gives effect to a contract, arrangement, understanding, or covenant whether—
(a)
the contract or arrangement was entered into before, on, or after the commencement date; or
(b)
the understanding was arrived at before, on, or after the commencement date; or
(c)
the covenant was given, or required to be given, before, on, or after the commencement date.
Schedule 1AA clause 19: inserted, on 5 April 2023, by section 48(3) of the Commerce Amendment Act 2022 (2022 No 11).
20 Conduct authorised before sections 36 and 36A replaced continues to be authorised
(1)
Nothing in section 36 or 36A applies to any conduct—
(a)
to which former Part 2 applied; and
(b)
that, before the commencement date, was authorised under the former Part 5.
(2)
Nothing in section 36 or 36A applies to any conduct—
(a)
to which former Part 2 applied; and
(b)
in respect of which an application for an authorisation under the former Part 5 was—
(i)
made before the commencement date; and
(ii)
approved on or after the commencement date.
(3)
See former sections 36(1) and 36A(1).
Schedule 1AA clause 20: inserted, on 5 April 2023, by section 48(3) of the Commerce Amendment Act 2022 (2022 No 11).
21 Application of former section 45 to existing statutory intellectual property rights
Despite its repeal, former section 45(1)(b) continues to apply during the 1-year transitional period in relation to a contract, arrangement, or understanding that was—
(a)
described in former section 45(1)(a); and
(b)
entered into, or arrived at, before the commencement date.
Schedule 1AA clause 21: inserted, on 5 April 2023, by section 48(3) of the Commerce Amendment Act 2022 (2022 No 11).
22 Sections 58A, 58B, and 59 apply to existing authorisations
Sections 58A, 58B, and 59 apply to an authorisation granted by the Commission under former section 58 before the commencement date.
Schedule 1AA clause 22: inserted, on 5 April 2023, by section 48(3) of the Commerce Amendment Act 2022 (2022 No 11).
23 Savings provisions if epidemic period under sections 65AA to 65AD ended by Amendment Act
(1)
This clause applies if the epidemic period, as defined in section 65AA(1), ends on the date on which section 24 of the Amendment Act comes into force (see section 65AA(1)(b)(ii).
(2)
If this clause applies, it applies in relation to the following applications for an authorisation that are made on or after the date on which the epidemic period ends but before the close of the 6-month period that starts on the date on which the Epidemic Preparedness (COVID-19) Notice 2020 expires or is revoked:
(a)
an application for an authorisation under section 58(1), (2), or (6B):
(b)
an application for an authorisation under section 58(6D) that relates to giving effect to a provision of a contract, arrangement, or understanding that is, or may be, a cartel provision.
(3)
Despite section 60(1), the Commission may, in its discretion, waive all or part of any fee payable for the application.
(4)
Despite section 61(5), the Commission may, in its discretion, determine the application without complying with section 62.
Schedule 1AA clause 23: inserted, on 5 April 2023, by section 48(3) of the Commerce Amendment Act 2022 (2022 No 11).
24 Section 65B applies to existing clearances
Section 65B applies to a clearance given by the Commission under former section 65A before the commencement date.
Schedule 1AA clause 24: inserted, on 5 April 2023, by section 48(3) of the Commerce Amendment Act 2022 (2022 No 11).
25 Section 69 applies to existing clearances and authorisations
Section 69 applies in relation to a clearance or an authorisation whether the clearance was given, or the authorisation was granted, before, on, or after the commencement date.
Schedule 1AA clause 25: inserted, on 5 April 2023, by section 48(3) of the Commerce Amendment Act 2022 (2022 No 11).
26 Court may make order in relation to covenant only if given on or after commencement date
Section 80C applies to a covenant only if the covenant is given, or required to be given, on or after the commencement date.
Schedule 1AA clause 26: inserted, on 5 April 2023, by section 48(3) of the Commerce Amendment Act 2022 (2022 No 11).
27 Offence under section 82B(1)(b) does not apply in relation to covenants given before commencement date
Section 82B(1)(b) does not apply to a person who gives effect to a cartel provision in a covenant given, or required to be given, before the commencement date.
Schedule 1AA clause 27: inserted, on 5 April 2023, by section 48(3) of the Commerce Amendment Act 2022 (2022 No 11).
Part 6 Provisions relating to Local Government (Water Services) Act 2025
Schedule 1AA Part 6: inserted, on 27 August 2025, by section 24(a) of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
28 Interpretation in this Part
In this Part, unless the context otherwise requires,—
Preliminary Arrangements Act 2024 means the Local Government (Water Services Preliminary Arrangements) Act 2024
section 52P determination has the same meaning as in section 52C.
Schedule 1AA clause 28: inserted, on 27 August 2025, by section 24(a) of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
29 Transition in respect of information disclosure requirements for purpose of economic regulation
(1)
The Commission must, before 1 July 2026, make 1 or more section 52P determinations specifying how information disclosure regulation imposed under subpart 12 of Part 4 of this Act will apply to any entities that are specified under section 39 of the Preliminary Arrangements Act 2024 as being subject to foundational information disclosure.
(2)
On and after 1 July 2026,—
(a)
that or those section 52P determinations apply to those entities; but
(b)
any foundational information disclosure requirements imposed under the Preliminary Arrangements Act 2024 continue to apply in relation to the financial year ending on 30 June 2026 if the disclosure date under section 44(1)(g) of that Act is on or before 31 December 2026 (and those requirements may be enforced under that Act, despite the commencement of the provisions in the Local Government (Water Services) (Repeals and Amendments) Act 2025 that amend this Act); and
(c)
no foundational information disclosure requirements under the Preliminary Arrangements Act 2024 apply in relation to the financial year ending on 30 June 2027 or any later years.
(3)
An entity may not be declared to be a specified entity under section 39 of the Preliminary Arrangements Act 2024 after the commencement of the Local Government (Water Services) Act 2025.
(4)
Any consultation undertaken under section 40 of the Preliminary Arrangements Act 2024 is treated as also having been undertaken for the purposes of clause 35 of Schedule 7 of this Act.
Schedule 1AA clause 29: inserted, on 27 August 2025, by section 24(a) of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
30 Transition in respect of economic regulation of Watercare Services Limited
(1)
In this clause, unless the context otherwise requires,—
end-date of the first regulatory period means the end-date of the first time period in respect of economic regulation of Watercare Services Limited under the Watercare charter made under Part 4 of the Preliminary Arrangements Act 2024, being—
(a)
the date specified under section 78(b)(ii) of that Act; or
(b)
any earlier or later date determined by the Minister under clause 31.
(2)
The Commission must, before the end-date of the first regulatory period, make a section 52P determination specifying how price-quality regulation imposed under subpart 12 of Part 4 of this Act will apply to Watercare Services Limited and any subsidiary of Watercare Services Limited under section 57F of this Act.
(3)
On and after that end-date,—
(a)
that section 52P determination applies to those entities; and
(b)
any price-quality path set under the Watercare charter under the Preliminary Arrangements Act 2024 no longer applies to those entities.
(4)
Subject to this clause, Part 4 of the Preliminary Arrangements Act 2024 continues in force, and may be enforced under that Act, despite the commencement of the provisions in the Local Government (Water Services) (Repeals and Amendments) Act 2025 that amend this Act.
Schedule 1AA clause 30: inserted, on 27 August 2025, by section 24(a) of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
31 Commission may recommend alteration of first regulatory period that applies under Preliminary Arrangements Act 2024
(1)
The Commission may recommend to the Minister responsible for the Preliminary Arrangements Act 2024 and the Minister responsible for this Act that the end-date of the first regulatory period that applies under the Preliminary Arrangements Act 2024 be—
(a)
extended; or
(b)
brought forward to an earlier date.
(2)
The Commission may make that recommendation only if it considers that the recommendation would better promote the purpose of Part 4 of this Act.
(3)
The Minister responsible for the Preliminary Arrangements Act 2024 may take that recommendation into account if acting under section 77 of that Act and may recommend to the Governor-General that the time period during which the charter applies for the purpose of section 78(b)(ii) of that Act be amended.
Schedule 1AA clause 31: inserted, on 27 August 2025, by section 24(a) of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
32 Transition for recovery of costs of Commission
(1)
Levy regulations made under section 53ZE may provide for the recovery of the costs of the Commission in respect of the Commission’s functions, powers, and duties under the Preliminary Arrangements Act 2024.
(2)
However, subclause (1) does not apply to expenses incurred by the Crown monitor in relation to monitoring Watercare that are referred to in section 89(1)(a) of the Preliminary Arrangements Act 2024 (which costs continue to be recoverable from Watercare under that section 89).
(3)
Any consultation referred to in subclause (4) must be treated as having been undertaken for the purposes of section 53ZE(4).
(4)
The consultation is any consultation undertaken by the Minister with suppliers of water services, or representatives of those suppliers, that—
(a)
occurred at any time between 1 November 2024 and 28 February 2025; and
(b)
related to levies to meet the costs of performing the Commission’s functions, powers, and duties in connection with subpart 12 of Part 4 and Schedule 7 of this Act (and the costs of collecting the levy money).
Schedule 1AA clause 32: inserted, on 27 August 2025, by section 24(a) of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Schedule 1 Classes of merger or takeover proposals requiring prior clearance or authorisation 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 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)
Amendment(s) incorporated in the Act(s).
Real Estate Agents Act 1976 (1976 No 9)
Amendment(s) incorporated in the Act(s).
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 Enactments repealed
Commerce Act 1975 (1975 No 113) (RS Vol 7, p 1)
Commerce Amendment Act 1976 (1976 No 67) (RS Vol 7, p 148)
Commerce Amendment Act 1979 (1979 No 42) (RS Vol 7, p 155)
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 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)
Positive List of Controlled Goods and Services 1981 (SR 1981/37)
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 Material incorporated by reference
Schedule 5: added, on 14 October 2008, by section 28 of the Commerce Amendment 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:
(a)
a determination made under section 52P; or
(b)
an input methodology published as referred to in section 52W.
Schedule 5 clause 1 Part 4 determination paragraph (b): amended, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
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)
3 Proof of material incorporated by reference
(1)
A copy of any material incorporated by reference in a Part 4 determination must be—
(a)
certified by the chairperson as a correct copy of the material; 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)
must make copies of all material incorporated by reference in a Part 4 determination available for inspection during normal working hours at the head office of the Commission; and
(b)
must make copies of the material available for purchase 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 into a Part 4 determination, and to any subsequent amendment or replacement of the material that is incorporated into the determination.
(3)
A failure to comply with this clause does not invalidate a Part 4 determination.
5 Effect of amendments to, or replacements of, material incorporated by reference
(1)
An amendment to, or replacement of, material incorporated by 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, adopts the amendment or replacement material as having legal effect as part of the determination.
(2)
A notice under subclause (1)(c)(ii) is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
| Legislation Act 2019 requirements for secondary legislation made under this clause | ||||
| Publication | The maker must publish it in the Gazette | LA19 ss 73, 74(1)(a), Sch 1 cl 14 | ||
| Presentation | It is not required to be presented to the House of Representatives because a transitional exemption applies under Schedule 1 of the Legislation Act 2019 | LA19 s 114, Sch 1 cl 32(1)(a) | ||
| Disallowance | It may be disallowed by the House of Representatives | LA19 ss 115, 116 | ||
| This note is not part of the Act. | ||||
6 Effect of expiry of material incorporated by reference
(1)
Material incorporated by reference in a Part 4 determination that expires, is revoked, or ceases to have effect, ceases to have legal effect as part of the Part 4 determination only if—
(a)
a subsequent Part 4 determination states that the material ceases to have that legal effect; or
(b)
the chairperson, by notice, states that the material ceases to have that legal effect.
(2)
A notice under subclause (1)(b) is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
| Legislation Act 2019 requirements for secondary legislation made under this clause | ||||
| Publication | The maker must publish it in the Gazette | LA19 ss 73, 74(1)(a), Sch 1 cl 14 | ||
| Presentation | It is not required to be presented to the House of Representatives because a transitional exemption applies under Schedule 1 of the Legislation Act 2019 | LA19 s 114, Sch 1 cl 32(1)(a) | ||
| Disallowance | It may be disallowed by the House of Representatives | LA19 ss 115, 116 | ||
| This note is not part of the Act. | ||||
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 determination adopting amended or replacement material; or
(c)
the chairperson proposes to make a notice 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 subclause includes any amended or replacement material) proposed to be incorporated by reference available for inspection during normal working hours at the head office of the Commission; and
(b)
must make copies of the material available for purchase 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 copies of the material may be inspected and purchased, and how people may make comments on the proposal; and
(e)
must allow a reasonable opportunity for people to comment on the proposal; and
(f)
must consider any comments made within the time allowed.
(3)
A failure to comply with this clause does not invalidate a Part 4 determination.
Schedule 5 clause 7(1)(c): amended, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
8 Application of Legislation Act 2019 to material incorporated by reference
Subpart 1 of Part 3 and section 114 of the Legislation Act 2019 do not apply to material that is incorporated by reference in a Part 4 determination merely because it is incorporated.
Schedule 5 clause 8: replaced, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
9 Regulations (Disallowance) Act 1989 not applicable
[Repealed]Schedule 5 clause 9: repealed, on 5 August 2013, by section 77(3) of the Legislation Act 2012 (2012 No 119).
Schedule 6 Exemptions from Part 4 in respect of specific pipelines
Schedule 6: added, on 14 October 2008, by section 28 of the Commerce Amendment Act 2008 (2008 No 70).
| Pipeline owner | Pipeline | |
|---|---|---|
| Todd Taranaki Limited | McKee Production Station—Tikorangi gas pipelines | |
| Swift Energy New Zealand Limited | Waihapa—New Plymouth gas pipeline | |
| Methanex New Zealand Limited |
|
|
| Energy Infrastructure Limited and Petroleum Infrastructure Limited | The 032 pipeline running from the T-junction on the Maui Pipeline at Ngatimaru Road to the Pohokura Production Station and the Methanex Motunui Methanol Plant | |
| Vector Limited | Kapuni—Faull Road Mixing Station low temperature separator gas pipeline | |
| Nova Gas Limited | All gas pipelines | |
| Origin Energy Resources NZ (Rimu) Ltd | Rimu Production Station—Mokoia Mixing station gas pipeline | |
| TAG Oil (NZ) Limited | Sidewinder Production Station—Vector 300 Line at Durham Road Upper | |
| Cheal Petroleum Limited | Cheal Gas Export Pipeline | |
| Contact Energy Limited | Ahuroa Gas Storage Facility—Taranaki Combined Cycle and Stratford Peaker power stations gas pipeline |
Schedule 6: amended, on 21 February 2014, by clause 3 of the Commerce (Part 4 Regulation—Gas Pipeline Services) Order 2014 (LI 2014/19).
Schedule 6: amended, on 13 June 2013, by clause 3 of the Commerce (Part 4 Regulation—Gas Pipeline Services) Order 2013 (SR 2013/145).
Schedule 6: amended, on 15 September 2011, by clause 3 of the Commerce (Part 4 Regulation—Gas Pipeline Services) Order 2011 (SR 2011/274).
Schedule 7 Additional matters relating to regulation of water services
Schedule 7: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Contents
1 Overview
(1)
This schedule sets out additional matters for the purposes of subpart 12 of Part 4 of this Act (which relates to the regulation of water services).
(2)
This schedule also contains provisions about ring-fencing water services revenue.
Schedule 7 clause 1: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
2 Interpretation in subpart 12 of Part 4 of this Act and this schedule
(1)
In subpart 12 of Part 4 of this Act and this schedule, unless the context otherwise requires,—
consumer—
(a)
means a person who consumes, uses, is provided with, or benefits from the provision of, a water service; and
(b)
includes a person who is liable to pay a serviceability charge under section 88 of the Local Government (Water Services) Act 2025
local government water service supplier—
(a)
means either of the following:
(i)
a local authority (within the meaning of section 5 of the Local Government Act 2002):
(ii)
a water organisation:
(b)
does not include the Chatham Islands Council (but that council may be declared to be regulated by an Order in Council under section 57L)
regulated supplier, in relation to a water service, means—
(a)
a local government water service supplier to which section 57D(1) applies; or
(b)
a supplier of the water service that is declared to be regulated by an Order in Council under section 57L
split decision-making model means an arrangement for providing water services where a local government water service supplier makes 1 or more, but not all, decisions about capital and operating expenditure on a regulated water service or the level of charges or revenue recovery for a regulated water service
water organisation has the meaning given in section 4 of the Local Government (Water Services) Act 2025.
(2)
Any term or expression that is defined in the Water Services Act 2021 and used, but not defined, in this clause has the same meaning as in that Act.
Schedule 7 clause 2: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Part 1 Ring-fencing of revenue
Schedule 7 Part 1: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
3 Application of this Part
This Part applies to every person that is a regulated supplier in relation to 1 or more regulated water services.
Schedule 7 clause 3: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
4 Purpose of this Part
The purpose of this Part is to ensure that regulated suppliers act in accordance with the following as applied to regulated water services:
(a)
the financial principle in section 18(1)(a) of the Local Government (Water Services) Act 2025:
(b)
section 18(3) of that Act.
Schedule 7 clause 4: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
5 Section 52P determinations may relate to requirement to ring-fence revenue
(1)
If the Commission considers it necessary or desirable, the Commission may make 1 or more section 52P determinations relating to 1 or more regulated suppliers with requirements that give effect to the purpose of this Part, including requirements—
(a)
that may require the supplier to ensure that a portion of the revenue it receives from providing 1 or more regulated water services is invested in that or those regulated water services, including in a particular asset, expense category, project, programme, or type of regulated water service, or held in reserve for any of those matters:
(b)
that may set limits on any dividends paid by a water organisation, to the extent necessary or desirable to ensure the organisation acts in accordance with section 18(3)(b) of the Local Government (Water Services) Act 2025.
(2)
Every regulated supplier of services must comply with every section 52P determination applying to the supplier under this clause (as if the determination were made, and related to a type of regulation, under Part 4 of this Act).
(3)
Section 87 (which relates to pecuniary penalties) and sections 87A, 87B, and 87C (which relate to compensation, an offence, and injunctions) apply to a regulated supplier on and from 1 July 2027 in respect of a contravention of subclause (2) (as if it were a contravention of a type of regulation under Part 4 of this Act that is referred to in those sections).
(4)
The Commission is entitled to exercise any of its powers under this Act for the purpose of monitoring compliance by regulated suppliers with a section 52P determination made under this clause.
Schedule 7 clause 5: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Part 2 Additional matters for information disclosure regulation
Schedule 7 Part 2: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
6 Additional matters relating to information disclosure regulation under subpart 12 of Part 4
(1)
This Part applies to a section 52P determination relating to information disclosure regulation imposed under subpart 12 of Part 4 of this Act.
(2)
The Commission may have regard to the scale, complexity, and risk profile of each supplier (or a class of suppliers), or the type of water services being provided by each supplier (or class of supplier), to which the determination will apply (for example, by requiring more or less information to be disclosed).
(3)
In addition to the information referred to in section 53C(2), the determination may require 1 or more of the following to be disclosed:
(a)
consolidated information that includes information about goods or services that are not subject to regulation under Part 4 of this Act, in which case clause 7 applies (and this paragraph applies instead of section 53C(2)(k)):
(b)
(c)
in relation to a local government water service supplier’s provision of water services, information about how the supplier is supporting and enabling planning processes, growth, and housing and urban development and, in particular, the supplier’s level of responsiveness in relation to those issues.
(4)
In addition to what it may do under section 53C(3), the section 52P determination may require independent audits, assurance, or other verification of disclosed information, and may impose requirements in connection with who may carry out the audit, assurance, or verification.
(5)
The Auditor-General is the auditor in respect of any public entity for which a section 52P determination requires independent audits, assurance, or other verification of disclosed information.
(6)
The Commission may gather information about regulated activities from any party holding that information (for example, a previously regulated supplier or a contracted party) for the relevant disclosure year or part of a disclosure year.
(7)
However, the Commission may not require the Auditor-General to give information under subclause (6).
Schedule 7 clause 6: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
7 Section 52P determination may require supplier to provide additional information
(1)
The purpose of this clause is to enable the Commission to monitor—
(a)
compliance with requirements to disclose information under Part 4 of this Act in relation to supplying water services; and
(b)
compliance with Part 1 of this schedule (which relates to ring-fencing of revenue); and
(c)
the ongoing capability of a supplier to raise finance with respect to its supply of water services by assessing the supplier’s overall financial position.
(2)
A section 52P determination may require a supplier to disclose information referred to in subclause (3) only to the extent required to enable the Commission to monitor 1 or more of the matters referred to in subclause (1).
(3)
If a supplier supplies goods or services that are not incidental to or related to supplying water services (other goods or services), a section 52P determination may require the supplier to disclose—
(a)
consolidated financial statements, and any other information referred to in section 53C or clause 6, for all activities (including those related to the supply of other goods or services) undertaken by that supplier; and
(b)
consolidated financial statements, and any other information referred to in section 53C or clause 6, for supplying all other goods or services in aggregate; and
(c)
reconciliation of information provided under paragraphs (a) and (b) with information disclosed in accordance with information disclosure requirements applying to supplying water services; and
(d)
information about financing all activities (including those related to supplying other goods or services) undertaken by that supplier.
(4)
If a local government water service supplier operates a split decision-making model, a section 52P determination may require the supplier to disclose consolidated information that includes—
(a)
information about any other regulated supplier that makes 1 or more of the other of those decisions in that split decision-making model; and
(b)
information about other goods or services supplied by that other regulated supplier.
Compare: 2023 No 54 s 36; 2024 No 31 s 45
Schedule 7 clause 7: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Part 3 Revenue threshold regulation
Schedule 7 Part 3: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
8 Purpose of revenue threshold regulation
The purpose of revenue threshold regulation is to promote the ongoing recovery of revenue at a level that covers efficient costs, so that regulated suppliers invest in water services infrastructure to meet consumer demands.
Schedule 7 clause 8: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
9 Section 52P determination to set out revenue thresholds
(1)
A section 52P determination relating to water services that are subject to revenue threshold regulation must—
(a)
specify the services to which it applies; and
(b)
specify the suppliers to which it applies; and
(c)
specify either or both of the following (a revenue threshold):
(i)
the maximum revenues that should be recovered by a regulated supplier; and
(ii)
the minimum revenues that should be recovered by a regulated supplier.
(2)
In specifying matters under subclause (1), the Commission may consider either or both of the following:
(a)
any information provided under information disclosure regulation:
(b)
any other information it thinks fit.
Schedule 7 clause 9: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
10 Effect of being subject to revenue threshold regulation
If a section 52P determination relating to revenue threshold regulation applies to a regulated supplier,—
(a)
the supplier is not required to comply with the revenue threshold (and section 52F does not apply); but
(b)
the Commission may exercise any of its powers under this Act for the purpose of monitoring the supplier’s performance against the revenue threshold; and
(c)
the Commission must consider the supplier’s performance against the revenue threshold before recommending further regulation under section 57G (see section 57H(1)(a)(iii)).
Schedule 7 clause 10: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Part 4 Quality regulation
Schedule 7 Part 4: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
11 Purpose of quality regulation
The purpose of quality regulation is to regulate the quality of water services supplied by regulated suppliers.
Schedule 7 clause 11: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
12 Effect of being subject to quality regulation
A regulated supplier to which a section 52P determination relating to quality regulation applies must apply the quality paths set by the Commission in the determination in respect of all water services that are—
(a)
supplied by the supplier; and
(b)
specified in the determination.
Schedule 7 clause 12: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
13 Section 52P determination to set out quality path requirements
(1)
A section 52P determination relating to quality regulation must specify the quality paths that apply to each regulated supplier to which the determination applies.
(2)
A quality path must specify the following:
(a)
the quality standards that a regulated supplier must meet:
(b)
the date or dates on which the quality path (or any part of it) takes effect:
(c)
the date or dates by which compliance must be demonstrated.
(3)
In specifying a quality path, the Commission may have regard to the scale, complexity, and risk profile of each regulated supplier (or a class of regulated suppliers), or the type of water services being provided by each supplier (or class of supplier), in respect of which it will apply, for example, by doing either or both of the following:
(a)
undertaking a greater or lesser degree of scrutiny of a supplier (or class of suppliers) with respect to historical and forecast quality of supply:
(b)
setting quality standards at a more or less onerous level.
(4)
A quality path may include incentives for a regulated supplier to maintain or improve its quality of supply, and those incentives may include (without limitation) either or both of the following:
(a)
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:
(b)
the use of schemes that rate or rank various aspects of the supplier’s performance in meeting the required quality standards or any performance requirements.
Compare: 2023 No 54 s 40
Schedule 7 clause 13: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
14 Other matters relating to quality path requirements
(1)
A quality path does not apply to a regulated supplier until the date specified in the relevant section 52P determination.
(2)
Quality standards may be prescribed in any way the Commission considers appropriate (such as targets, bands, formulas, or timetables for responsiveness to consumers).
Schedule 7 clause 14: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
15 Reopening quality path if input methodology changes as result of appeal
The Commission must reopen a quality path, and make a new quality path by amending the relevant section 52P determination in accordance with section 52Q, if—
(a)
an input methodology changes as a result of an appeal under section 52Z; and
(b)
had the changed input methodology applied at the time the quality path was set, it would have resulted in a materially different path being set.
Compare: 2023 No 54 s 47(2)
Schedule 7 clause 15: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
16 No other reopening of quality path
Except as provided in clause 15, the Commission must not reopen a quality path within a regulatory period on the grounds that an input methodology is made or changes.
Compare: 2023 No 54 s 47(1)
Schedule 7 clause 16: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Part 5 Performance requirement regulation
Schedule 7 Part 5: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
17 Purpose of performance requirement regulation
The purpose of performance requirement regulation is to regulate the performance (other than in relation to prices) of water services supplied by regulated suppliers.
Schedule 7 clause 17: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
18 Effect of being subject to performance requirement regulation
A regulated supplier to which a section 52P determination relating to performance requirement regulation applies must comply with the performance requirements set by the Commission in the determination in respect of all water services that are—
(a)
supplied by the supplier; and
(b)
specified in the determination.
Schedule 7 clause 18: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
19 Section 52P determination to set out performance requirements
(1)
A section 52P determination relating to performance requirement regulation must specify the performance requirements that apply to each regulated supplier to which the determination applies.
(2)
A performance requirement must specify the following:
(a)
the performance requirement that a regulated supplier must meet:
(b)
the date or dates on which the requirement (or any part of it) takes effect:
(c)
the date or dates by which compliance must be demonstrated.
(3)
In specifying a performance requirement, the Commission may have regard to the scale, complexity, and risk profile of each regulated supplier (or a class of regulated suppliers), or the type of water services being provided by each supplier (or class of supplier), in respect of which it will apply, for example, by doing either or both of the following:
(a)
undertaking a greater or lesser degree of scrutiny of a supplier (or class of suppliers) with respect to historical and forecast performance of supply:
(b)
setting performance requirements at a more or less onerous level.
(4)
A performance requirement may include—
(a)
incentives for a regulated supplier to maintain or improve its performance, and those incentives may include (without limitation) either of the following:
(i)
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:
(ii)
the use of schemes that rate or rank various aspects of the supplier’s performance in meeting the performance requirement; and
(b)
any of the following requirements:
(i)
requirements to adopt a particular approach to risk management:
(ii)
requirements in relation to the condition of assets and remaining asset life:
(iii)
requirements to make particular types of investment:
(iv)
requirements to provide information about any investments planned for a particular period:
(v)
requirements to deliver particular outputs:
(vi)
requirements to consult the Commission about certain kinds of investments and investment decisions:
(vii)
requirements to adopt asset management policies and practices:
(viii)
reporting requirements, including—
(A)
to whom reports must be made; and
(B)
the timing of reports; and
(C)
special reporting requirements in asset management plans, if the regulated supplier fails to meet the quality standards or other performance requirements; and
(D)
any other matters relating to reporting, including requirements for additional information:
(ix)
requirements that any disclosed information, or any information from which disclosed information is derived, be verified by statutory declaration or certified (in the form specified by the Commission) as true and accurate:
(x)
requirements to undertake cost-benefit analysis before specified projects are begun:
(xi)
requirements relating to consultation and engagement with consumers:
(xii)
requirements based on comparative benchmarking of efficiency.
Compare: 2023 No 54 s 40
Schedule 7 clause 19: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
20 Other matters relating to performance requirements
(1)
A performance requirement does not apply to a regulated supplier until the date specified in the relevant section 52P determination.
(2)
Performance requirements may be prescribed in any way the Commission considers appropriate (such as targets, bands, formulas, or timetables for responsiveness to consumers).
Schedule 7 clause 20: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Part 6 Price-quality regulation
Schedule 7 Part 6: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
21 Purpose of price-quality regulation
The purpose of price-quality regulation is to regulate the price, quality, and performance of water services supplied by regulated suppliers.
Schedule 7 clause 21: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
22 Effect of being subject to price-quality regulation
A regulated supplier to which a section 52P determination relating to price-quality regulation applies must apply the price-quality paths set by the Commission in the determination in respect of all water services that are—
(a)
supplied by the supplier; and
(b)
specified in the determination.
Schedule 7 clause 22: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
23 Section 52P determination to set out price-quality path requirements
(1)
A section 52P determination relating to price-quality regulation must specify the price-quality paths that apply to each regulated supplier to which the determination applies.
(2)
A price-quality path must specify the following:
(a)
the regulatory period to which it applies (including specifying whether the period is common to all regulated suppliers or specific to 1 or more suppliers):
(b)
in relation to prices, 1 or more of the following:
(i)
the maximum price or prices that a regulated supplier may charge:
(ii)
the minimum price or prices that a regulated supplier may charge:
(iii)
the maximum revenues that a regulated supplier may recover:
(iv)
the minimum revenues that a regulated supplier may recover:
(c)
the quality standards that a regulated supplier must meet:
(d)
the date or dates on which the price-quality path (or any part of it) takes effect:
(e)
the date or dates by which compliance must be demonstrated.
(3)
A price-quality path may include circumstances in which the path may be reconsidered during a regulatory period.
(4)
In specifying a price-quality path, the Commission may have regard to the scale, complexity, and risk profile of each regulated supplier (or a class of regulated suppliers), or the type of water services being provided by each supplier (or class of supplier), in respect of which it will apply, for example, by doing any 1 or more of the following:
(a)
undertaking a greater or lesser degree of scrutiny of a supplier (or class of suppliers) with respect to historical and forecast prices, expenditure, performance, and quality of supply:
(b)
setting higher or lower maximum prices or revenues:
(c)
setting higher or lower minimum prices or revenues:
(d)
setting quality standards or performance requirements at a more or less onerous level.
(5)
A price-quality path may include—
(a)
incentives for a regulated supplier to maintain or improve its quality of supply, and those incentives may include (without limitation) any of the following:
(i)
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 or any performance requirements:
(ii)
rewards by way of an increase in the supplier’s maximum prices or revenues based on whether, or by what amount, the supplier meets or exceeds the required quality standards or any performance requirements:
(iii)
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:
(iv)
the use of schemes that rate or rank various aspects of the supplier’s performance in meeting the required quality standards or any performance requirements; and
(b)
performance requirements, including any of the following:
(i)
requirements to adopt a particular approach to risk management:
(ii)
requirements in relation to the condition of assets and remaining asset life:
(iii)
requirements to make particular types of investment:
(iv)
requirements to provide information about any investments planned for a particular period:
(v)
requirements to deliver particular outputs:
(vi)
requirements to consult the Commission about certain kinds of investments and investment decisions:
(vii)
requirements to adopt asset management policies and practices:
(viii)
reporting requirements, including—
(A)
to whom reports must be made; and
(B)
the timing of reports; and
(C)
special reporting requirements in asset management plans, if the regulated supplier fails to meet the quality standards or other performance requirements; and
(D)
any other matters relating to reporting, including requirements for additional information:
(ix)
requirements that any disclosed information, or any information from which disclosed information is derived, be verified by statutory declaration or certified (in the form specified by the Commission) as true and accurate:
(x)
requirements to undertake cost-benefit analysis before specified projects are begun:
(xi)
requirements relating to consultation and engagement with consumers:
(xii)
requirements based on comparative benchmarking of efficiency.
(6)
A regulatory period must be at least 3 years but not more than 6 years.
Compare: 2023 No 54 s 43
Schedule 7 clause 23: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
24 Other matters relating to price-quality paths
(1)
Quality standards and performance requirements may be prescribed in any way the Commission considers appropriate (such as targets, bands, formulas, or timetables for responsiveness to consumers).
(2)
A price-quality path does not apply to a regulated supplier until the date specified in the relevant section 52P determination.
Schedule 7 clause 24: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
25 Wash-up mechanism for revenues specified in price-quality paths
(1)
This clause applies when the Commission specifies, in the price-quality paths for a regulatory period, the maximum or minimum revenues that a regulated supplier may recover.
(2)
The Commission may, in calculating the maximum or minimum revenues, apply a wash-up mechanism that provides for any over-recovery or under-recovery of revenue by the regulated supplier during the previous regulatory period (if applicable) to be applied in a manner that is equivalent in present-value terms (as calculated in the manner that the Commission thinks fit) over 1 or more future regulatory periods.
(3)
The reference to previous regulatory period in subclause (2) includes any period that applied under the Watercare charter made under Part 4 of the Local Government (Water Services Preliminary Arrangements) Act 2024.
Compare: 2023 No 54 s 44
Schedule 7 clause 25: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
26 Smoothing revenues and prices
(1)
This clause applies when the Commission specifies maximum or minimum prices or maximum or minimum revenues for the purposes of clause 23(2)(b).
(2)
The Commission may calculate the maximum or minimum price or revenue in a manner that is equivalent in present-value terms (as calculated in the manner that the Commission thinks fit) over 2 or more regulatory periods (for example, by altering depreciation) if, in the Commission’s opinion, it is necessary or desirable to do so for either or both of the following reasons:
(a)
to provide for the ability of a regulated supplier to obtain finance:
(b)
to minimise price shocks to consumers.
Compare: 2023 No 54 s 45
Schedule 7 clause 26: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
27 Reopening price-quality path if input methodology changes as result of appeal
(1)
The Commission must reopen a price-quality path, and make a new price-quality path by amending the relevant section 52P determination in accordance with section 52Q, if—
(a)
an input methodology changes as a result of an appeal under section 52Z; and
(b)
had the changed input methodology applied at the time the price-quality path was set, it would have resulted in a materially different path being set.
(2)
When making a new price-quality path under subclause (1), the Commission must apply claw-back.
Compare: 2023 No 54 s 47(2)
Schedule 7 clause 27: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
28 No other reopening of price-quality path
Except as provided in clause 27, the Commission must not reopen a price-quality path within a regulatory period on the grounds that an input methodology is made or changes.
Compare: 2023 No 54 s 47(1)
Schedule 7 clause 28: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Part 7 Additional matters for input methodologies
Schedule 7 Part 7: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
29 When Commission must or may determine input methodologies
(1)
The Commission—
(a)
must determine input methodologies in respect of information disclosure regulation and price-quality regulation (in accordance with clause 32 in the case of initial input methodologies); and
(b)
may determine input methodologies in respect of quality regulation.
(2)
Subclause (1)(a) does not limit section 57P (which provides an exception for periods before the relevant date).
Schedule 7 clause 29: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
30 How input methodologies apply
(1)
An input methodology relating to the supply of water services must be applied—
(a)
by each relevant regulated supplier in accordance with the relevant section 52P determination; and
(b)
in relation to an input methodology that is not specified in a section 52P determination (see clause 31(5)), by each supplier to which the relevant input methodology applies; and
(c)
by the Commission in recommending, deciding, or determining—
(i)
how regulation under Part 4 of this Act should apply to water services; or
(ii)
the prices or quality standards applying to water services.
(2)
However, subclause (1)(c) does not apply to a section 52P determination for information disclosure regulation or price-quality regulation if the determination is made before the initial input methodology has been determined for that regulation in accordance with clause 32.
(3)
This clause applies instead of section 52S in relation to supplying water services.
Schedule 7 clause 30: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
31 Additional matters covered by input methodologies
(1)
In addition to the matters set out in section 52T(1), the input methodologies relating to water services must include, to the extent applicable to the type of regulation under consideration, methodologies for capital expenditure proposals, including the following:
(a)
requirements that the regulated suppliers must meet, including the scope and specificity of information required, the extent of independent verification, assurance, and audit, and the extent of consultation and agreement with other parties; 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.
(2)
Section 52T(2)(a) applies to the additional matters in subclause (1).
(3)
In determining an input methodology, the Commission may have regard to the scale, complexity, and risk profile of each regulated supplier (or a class of regulated supplier), or the type of water services being provided by each supplier (or class of supplier), in respect of which the methodology will apply (for example, by specifying the matters referred to in section 52T(1) and subclause (1) in a greater or lesser level of detail).
(4)
An input methodology may relate to all regulated suppliers or to a class of regulated suppliers or to 1 or more regulated suppliers.
(5)
If the Commission determines an input methodology that is not specified in a section 52P determination, the Commission must ensure that the input methodology—
(a)
states clearly that it is an input methodology of the sort referred to in clause 30(1)(b); and
(b)
specifies the suppliers to which it applies; and
(c)
specifies the water services in respect of which it applies; and
(d)
sets out any time frames that must be complied with or that apply; and
(e)
is consistent with Part 4 of this Act.
(6)
Section 52T(3) does not apply to water services.
Schedule 7 clause 31: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
32 Timing of initial input methodologies for information disclosure and price-quality regulation
(1)
The Commission must determine initial input methodologies relating to information disclosure regulation under subpart 12 of Part 4 of this Act before the relevant date.
(2)
If 1 or more suppliers become subject to price-quality regulation under subpart 12 of Part 4 of this Act before the tenth anniversary of the commencement of this clause, the Commission must determine initial input methodologies relating to that regulation before the relevant date.
(3)
In this clause, relevant date means—
(a)
the tenth anniversary of the commencement of this clause:
(b)
an earlier or a later date specified in the Gazette under subclause (4).
(4)
The following apply for the purposes of subclause (3)(b):
(a)
the Minister may specify a date by notice in the Gazette if the Commission agrees to the date:
(b)
the Minister and the Commission may agree to different dates for different types of regulation and for different regulated suppliers or groups of regulated suppliers.
(5)
Clause 29(1)(a) is subject to this clause.
Schedule 7 clause 32: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
33 Commission may determine initial input methodologies relating to quality regulation after other methodologies
The Commission may, in respect of a regulated supplier (or a class of regulated suppliers), determine initial input methodologies relating to quality regulation of water services, at any time after the initial input methodologies relating to information disclosure regulation or price-quality regulation of that supplier (or those suppliers) are determined under clause 32.
Schedule 7 clause 33: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
34 Commission may seek court order for contravention of input methodology set outside of determination
Sections 87 to 87C apply to a regulated supplier in respect of a contravention of an input methodology of the sort referred to in clause 30(1)(b) as if it were a contravention of a type of regulation under Part 4 of this Act that is referred to in those sections.
Schedule 7 clause 34: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Part 8 Miscellaneous
Schedule 7 Part 8: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
35 Consultation on section 52P determination
(1)
The Commission must consult interested parties before making a section 52P determination relating to water services.
(2)
However, section 52Q applies to an amendment of a section 52P determination relating to water services (in particular, the determination may be amended in a non-material way without prior consultation).
Schedule 7 clause 35: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
36 Monitoring compliance with certain requirements
(1)
Subclause (2) applies for the purpose of monitoring compliance with any requirement imposed by this schedule or by a section 52P determination made for the purposes of subpart 12 of Part 4 of this Act.
(2)
The Commission may, in addition to exercising its powers under section 98, issue a written notice to a regulated supplier requiring it to provide any or all of the following:
(a)
a written statement as to whether the supplier has complied with the requirement:
(b)
a report on the written statement that is signed by a person that the Commission considers to be a suitably qualified and experienced independent expert in accordance with any form specified by the Commission:
(c)
sufficient information to enable the Commission to properly determine whether all applicable requirements have been complied with:
(d)
a certificate, in the form specified by the Commission and signed by at least 1 board member of the supplier, or, if there is no board, the person who operates the supplier, confirming the truth and accuracy of any information provided under this clause.
(3)
Subclause (4) applies for the purpose of monitoring a regulated supplier’s performance against a revenue threshold.
(4)
The Commission may, in addition to exercising its powers under section 98, issue a written notice to a regulated supplier requiring it to provide a written statement as to whether the supplier has recovered revenues in accordance with a revenue threshold (and, if not, a statement of reasons why it has not recovered revenues within the threshold).
(5)
The supplier must comply with a notice issued under subclause (2) or (4) within the time frame, and in the manner, specified in the notice.
Compare: 2023 No 54 ss 39(2), 42(2)
Schedule 7 clause 36: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
37 Information sharing with regulatory agencies in relation to water services
(1)
The Commission may provide a regulatory agency with any information, or a copy of any document, that it—
(a)
holds in relation to performing or exercising its functions, duties, or powers under this Act; and
(b)
considers may assist the regulatory agency in performing or exercising the regulatory agency’s functions, duties, or powers in relation to water services.
(2)
A regulatory agency may provide the Commission with any information, or a copy of any document, that it—
(a)
holds in relation to performing or exercising its functions, duties, or powers under or in relation to any legislation; and
(b)
considers may assist the Commission in performing or exercising its functions, duties, or powers under this Act in relation to water services.
(3)
If subclause (1) or (2) applies, the Commission or the regulatory agency (as the case may be) may impose conditions that it thinks fit relating to providing the information or document, including conditions relating to—
(a)
the storage and use of, or access to, anything provided:
(b)
the copying, returning, or disposing of copies of any documents provided.
(4)
This clause applies—
(a)
despite anything to the contrary in any contract, deed, or document; but
(b)
subject to any legislation.
(5)
In this clause, regulatory agency means any of the following:
(a)
the Water Services Authority—Taumata Arowai:
(b)
the Department of Internal Affairs, including any statutory officer who carries out work for that Department:
(c)
the Ministry for the Environment, including any statutory officer who carries out work for that Ministry:
(d)
the Ministry of Business, Innovation, and Employment, including any statutory officer who carries out work for that Ministry:
(e)
the Auditor-General:
(f)
a regional council or a unitary authority (within the meaning of section 5 of the Local Government Act 2002).
Schedule 7 clause 37: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
38 Commission may use or respond to information
(1)
In performing its functions under this Act in relation to water services, the Commission may do any of the following:
(a)
consider, summarise, analyse, or use any information that it considers relevant:
(b)
provide information to the public about any of its activities under paragraph (a):
(c)
make comments on any information provided publicly by regulated suppliers or the Water Services Authority—Taumata Arowai under any legislation dealing with water services.
(2)
This clause does not limit other powers in this or any other Act.
Compare: 2023 No 54 s 4(3), (4)
Schedule 7 clause 38: inserted, on 27 August 2025, by section 25 of the Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43).
Notes
1 General
This is a consolidation of the Commerce Act 1986 that incorporates the amendments made to the legislation so that it shows the law as at its stated date.
2 Legal status
A consolidation is taken to correctly state, as at its stated date, the law enacted or made by the legislation consolidated and by the amendments. This presumption applies unless the contrary is shown.
Section 78 of the Legislation Act 2019 provides that this consolidation, published as an electronic version, is an official version. A printed version of legislation that is produced directly from this official electronic version is also an official version.
3 Editorial and format changes
The Parliamentary Counsel Office makes editorial and format changes to consolidations using the powers under subpart 2 of Part 3 of the Legislation Act 2019. See also PCO editorial conventions for consolidations.
4 Amendments incorporated in this consolidation
Local Government (Water Services) (Repeals and Amendments) Act 2025 (2025 No 43): Part 2
Water Services Acts Repeal Act 2024 (2024 No 2): section 12(1)
Grocery Industry Competition Act 2023 (2023 No 31): sections 200, 201
Civil Aviation Act 2023 (2023 No 10): section 486
Electricity Industry Amendment Act 2022 (2022 No 46): section 52
Data and Statistics Act 2022 (2022 No 39): section 107(1)
Commerce (Grocery Sector Covenants) Amendment Act 2022 (2022 No 35)
Te Ture mō te Hararei Tūmatanui o te Kāhui o Matariki 2022/Te Kāhui o Matariki Public Holiday Act 2022 (2022 No 14): wehenga 7/section 7
Commerce Amendment Act 2022 (2022 No 11)
Legislation Act (Amendments to Legislation) Regulations 2021 (LI 2021/247): regulations 42, 43
Secondary Legislation Act 2021 (2021 No 7): section 3
COVID-19 Response (Further Management Measures) Legislation Act 2020 (2020 No 13): section 3
Commerce (Criminalisation of Cartels) Amendment Act 2019 (2019 No 9)
Commerce Amendment Act 2018 (2018 No 42)
Electronic Interactions Reform Act 2017 (2017 No 50): Part 3 subpart 1
Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40)
Regulatory Systems (Commercial Matters) Amendment Act 2017 (2017 No 12): Part 1 subpart 2
Contract and Commercial Law Act 2017 (2017 No 5): section 347
Senior Courts Act 2016 (2016 No 48): section 183(b)
Standards and Accreditation Act 2015 (2015 No 91): section 45(1)
Commerce (Part 4 Regulation—Gas Pipeline Services) Order 2014 (LI 2014/19)
Companies Amendment Act 2013 (2013 No 111): section 14
Financial Reporting (Amendments to Other Enactments) Act 2013 (2013 No 102): section 126
Financial Markets (Repeals and Amendments) Act 2013 (2013 No 70): section 150
Commerce (Part 4 Regulation—Gas Pipeline Services) Order 2013 (SR 2013/145)
Holidays (Full Recognition of Waitangi Day and ANZAC Day) Amendment Act 2013 (2013 No 19): section 8
Legislation Act 2012 (2012 No 119): section 77(3)
Commerce (International Co-operation, and Fees) Amendment Act 2012 (2012 No 84)
Search and Surveillance Act 2012 (2012 No 24): section 313
Criminal Procedure Act 2011 (2011 No 81): section 413
Commerce (Part 4 Regulation—Gas Pipeline Services) Order 2011 (SR 2011/274)
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
Employment Relations Amendment Act (No 2) 2004 (2004 No 86): section 72
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)
Human Rights Amendment Act 2001 (2001 No 96): section 70(1)
Commerce Amendment Act 2001 (2001 No 32)
New Zealand Public Health and Disability Act 2000 (2000 No 91): section 107
Commerce Amendment Act 1996 (1996 No 113)
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 Fund Restructuring Act 1990 (1990 No 126): section 80
Commerce Amendment Act 1990 (1990 No 41)
Civil Aviation Amendment Act 1987 (1987 No 12): section 2(3)
Official Information Amendment Act 1987 (1987 No 8): section 25(1)
Fair Trading Act 1986 (1986 No 121): section 49(2)
Commerce Act 1986 (1986 No 5): sections 28B(5), 65AE, Schedule 1AA clause 4