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  (3) [Repealed]

  (4) [Repealed]

  Subsection (2) was substituted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

  Subsection (3) was repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

  Subsection (4) was repealed, as from 1 July 1990, by section 7 Commerce Amendment Act 1990 (1990 No 41).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 was inserted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

9 Membership of Commission

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

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

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

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

  • (a) in the opinion of the Minister, that person is qualified for appointment, having regard to the functions of the Commission, 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.

  Subsection (1) was amended, as from 20 December 2001, by section 158 Telecommunications Act 2001 (2001 No 103) by substituting the expression “4” for the expression “3”. It was further amended by substituting the expression “6” for the expression “5” in the first place that it occurs.

  Subsection (1) was substituted, as from 1 April 2002, by section 6(1) Commerce Amendment Act 2001 (2001 No 32). See section 26 of that Act as to proceedings barred or commenced before 26 May 2001. See clause 2 Commerce Amendment Act 2001 Commencement Order 2002 (SR 2002/64).

  Subsections (3A) and (3B) were inserted, as from 1 April 2002, by section 6(2) Commerce Amendment Act 2001 (2001 No 32). See section 26 of that Act as to proceedings barred or commenced before 26 May 2001. See clause 2 Commerce Amendment Act 2001 Commencement Order 2002 (SR 2002/64).

  Section 9 was substituted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

10 Terms and conditions of appointment

• (1) [Repealed]

  (2) [Repealed]

  (3) [Repealed]

  (4) [Repealed]

  (5) For the purpose of providing a superannuation fund or retiring allowance for members of the Commission, sums by way of subsidy or contribution may from time to time be paid into any superannuation scheme which is registered under the Superannuation Schemes Act 1989.

  (6) [Repealed]

  Compare: 1975 No 113 ss 4(1), 10, 17B; 1979 No 140 s 9(1)

  Subsection (1) was repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

  Subsection (2) was amended, as from 1 April 2003, by section 4(1) Remuneration Authority (Members of Parliament) Amendment Act 2002 (2002 No 54) by substituting the words “Remuneration Authority” for the words “Higher Salaries Commission”.

  Subsections (2) to (4) were repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

  Subsection (5) was substituted, as from 1 April 1991, by section 80 National Provident Fund Restructuring Act 1990 (1990 No 126).

  Subsection (6) was repealed, as from 25 January 2005, by section 200 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 instrument.

  (3) Subject to subsection (4) of this section, 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, 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

  Subsection (1A) was inserted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

  Subsection (2) was amended, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115) by substituting the words “notice of appointment” for the words “instrument of appointment”.

  Subsection (2) was amended, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115) by substituting the expression “5 years” for the expression “3 years”.

  Subsection (3) was amended, as from 15 April 2004, by section 3(1)(a) Commerce Amendment Act 2004 (2004 No 23) by inserting the words “or any other Act” after the words “under this Act”. See section 3(2) of that Act as to appointments made before 15 April 2004.

  Subsection (3) was amended, as from 15 April 2004, by section 3(1)(b) Commerce Amendment Act 2004 (2004 No 23) by substituting the words “or in any other Act to a member of the Commission must” for the words “to a member shall”. See section 3(2) of that Act as to appointments made before 15 April 2004.

  Subsection (4) was amended, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115) by substituting the words “notice of appointment” for the words “instrument of appointment”.

  Subsections (5) and (6) were inserted, as from 25 January 2005, by section 200 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 was substituted, as from 25 January 2005, by section 200 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 of this Act.

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

  Compare: 1975 No 113 s 4(2), (3); 1976 No 67 s 23(3); 1979 No 140 s 6

  Subsection (1) was amended, as from 1 January 2002, by section 70(1) Human Rights Amendment Act 2001 (2001 No 96), by substituting the words “inability to perform the functions of the office” for the word “disability”.

  Subsection (1) was substituted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

  Subsection (2) was amended, as from 1 January 2002, by section 70(1) Human Rights Amendment Act 2001 (2001 No 96), by substituting the words “inability to perform the functions of the office” for the word “disability”.

  Subsections (2) and (3) were substituted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

  Subsection (5) was inserted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

14 Disclosure of financial interests

• [Repealed]

  Section 14 was substituted, as from 1 July 1990, by section 8 Commerce Amendment Act 1990 (1990 No 41).

  Section 14 was repealed, as from 25 January 2005, by section 200 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)

  Subsection (1) was amended, as from 15 April 2004, by section 4(1) Commerce Amendment Act 2004 (2004 No 23) by inserting the words “or any other Act”.

  Subsection (1) was repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

  Subsection (2) was substituted, as from 15 April 2004, by section 4(2) Commerce Amendment Act 2004 (2004 No 23).

  Subsections (2) to (3) were repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

  Subsection (4) was amended, as from 15 April 2004, by section 4(3) Commerce Amendment Act 2004 (2004 No 23) by omitting the words “, or of any separate Division of the Commission acting under section 16(1) of this Act,”.

  Subsection (5) was substituted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

  Subsection (6) was repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

  Subsection (7) was amended, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115) by substituting the word “chairperson” for the word “Chairman”.

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 1 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) of this section, 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) of this section 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 was amended, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115) by substituting the word “chairperson” for the word “Chairman” wherever it appears.

  Subsection (1) was amended, as from 15 April 2004, by section 5(1) Commerce Amendment Act 2004 (2004 No 23) by inserting the words “or any other Act” after the words “under this Act”.

  Subsection (1A) was inserted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

  Subsection (3) was amended, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115) by substituting the words “deputy chairperson” for the words “Deputy Chairman”.

  Subsection (6) was amended, as from 15 April 2004, by section 5(2) Commerce Amendment Act 2004 (2004 No 23) by inserting the words “or any other Act” after the words “under this Act”.

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 was amended, as from 1 July 1990, by section 9 Commerce Amendment Act 1990 (1990 No 41).

  Section 17 was amended, as from 2 September 1996, by section 13(3) Commerce Amendment Act 1996 (1996 No 113) by substituting the words “or facsimile” for the words “or fascimile”.

  Section 17 was amended, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115) by substituting the words “in writing (whether sent by post, delivery, or electronic communication)” for the words “by letter, telegram, cable, or telex or facsimile message”.

  Subsection (2) was inserted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

18 Officers and employees

• [Repealed]

  Section 18 was substituted and sections 18A to 18D were inserted, as from 1 July 1990, by section 10 Commerce Amendment Act 1990 (1990 No 41).

  Sections 18 to 18B were repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

18A Personnel policy

• [Repealed]

  Section 18 was substituted and sections 18A to 18D were inserted, as from 1 July 1990, by section 10 Commerce Amendment Act 1990 (1990 No 41).

  Sections 18 to 18B were repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

18B Equal employment opportunities

• [Repealed]

  Section 18 was substituted and sections 18A to 18D were inserted, as from 1 July 1990, by section 10 Commerce Amendment Act 1990 (1990 No 41).

  Sections 18 to 18B were repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

18C Choice of procedure

• [Repealed]

  Section 18 was substituted and sections 18A to 18D were inserted, as from 1 July 1990, by section 10 Commerce Amendment Act 1990 (1990 No 41).

  References in paragraph (a) to the “Employment Contracts Act 1991” and “collective employment contract” replaced references to the “Labour Relations Act 1987” and “award or agreement” pursuant to section 176(1) Employment Contracts Act 1991.

  Paragraph (a) was substituted, as from 2 October 2000 by section 240 Employment Relations Act 2000 (2000 No 24).

  Section 18C was repealed, as from 1 December 2004, by section 72 Employment Relations Amendment Act (No 2) 2004 (2004 No 86). See section 73 of that Act for the transitional provisions.

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) of this Act 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) of this section 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 18 was substituted and sections 18A to 18D were inserted, as from 1 July 1990, by section 10 Commerce Amendment Act 1990 (1990 No 41).

  Subsection (1) was repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

19 Money to be appropriated by Parliament for purposes of this Act

• [Repealed]

  Sections 19 to 23 were repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

20 Funds of Commission

• [Repealed]

  Sections 19 to 23 were repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

21 Bank accounts

• [Repealed]

  Sections 19 to 23 were repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

22 Crown entity

• [Repealed]

  Section 22 was substituted, as from 21 December 1992, by section 42 Public Finance Amendment Act 1992 (1992 No 142).

  Subsection (2) was substituted, as from 1 July 2001, by section 53 Public Audit Act 2001 (2001 No 10).

  Sections 19 to 23 were repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

23 Investment of money

• [Repealed]

  Section 23 was amended, as from 1 July 1989, by section 86(1) Public Finance Act 1989 (1989 No 44) by substituting the words “pursuant to section 25 or the Public Finance Act 1989” for the words “pursuant to section 50 of the Public Finance Act 1977”.

  Sections 19 to 23 were repealed, as from 25 January 2005, by section 200 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 (Aust), s 28(1)(a)

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) of this section 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 (Aust), s 29

  Subsection (1) was amended, as from 1 July 1990, by section 12 Commerce Amendment Act 1990 (1990 No 41) by omitting the words “Part 5 of”.

  Subsection (3) was inserted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).

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) of this section 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 (Aust), s 45(1), (2)

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) of this section 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) of this section, 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) of this section, 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) 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 (Aust), s 45B(1)-(3), (7)

29 Contracts, arrangements, or understandings containing exclusionary provisions prohibited

• (1) Subject to subsection (1A), for the purposes of this Act, a provision of a contract, arrangement, or understanding is an exclusionary provision if—

  • (a) It is a provision of a contract or arrangement entered into, or understanding arrived at, between persons of whom any 2 or more are in competition with each other; and

  • (b) It has the purpose of preventing, restricting, or limiting the supply of goods or services to, or the acquisition of goods or services from, any particular person, or class of persons, either generally or in particular circumstances or on particular conditions, by all or any of the parties to the contract, arrangement, or understanding, or if a party is a body corporate, by a body corporate that is interconnected with that party; and

  • (c) The particular person or the class of persons to which the provision relates is in competition with one or more of the parties to the contract, arrangement or understanding in relation to the supply or acquisition of those goods or services.

  (1A) A provision of a contract, an arrangement, or an understanding that would, but for this subsection, be an exclusionary provision under subsection (1) is not an exclusionary provision if it is proved that the provision does not have the purpose, or does not have or is not likely to have the effect, of substantially lessening competition in a market.

  (2) For the purposes of subsection (1)(a) and (c), a person is in competition with another person if that person or any interconnected body corporate is, or is likely to be, or, but for the relevant provision, would be or would be likely to be, in competition with the other person, or with an interconnected body corporate, in relation to the supply or acquisition of all or any of the goods or services to which that relevant provision relates.

  (3) No person shall enter into a contract, or arrangement, or arrive at an understanding, that contains an exclusionary provision.

  (4) No person shall give effect to an exclusionary provision of a contract, arrangement, or understanding.

  (5) Subsection (4) of this section applies to an exclusionary provision of a contract or arrangement made, or understanding arrived at, whether before or after the commencement of this Act.

  (6) No exclusionary provision of a contract, whether made before or after the commencement of this Act, is enforceable.

  Compare: Trade Practices Act 1974 (Aust), ss 4D, 45(1)-(3)

  Subsection (1) was substituted, as from 1 July 1990, by section 13 Commerce Amendment Act 1990 (1990 No 41).

  Subsection (1) was amended, as from 26 May 2001, by section 7(1) Commerce Amendment Act 2001 (2001 No 32) by substituting the words “Subject to subsection (1A), for” for the word “For”. See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

  Subsection (1A) was inserted, as from 26 May 2001, by section 7(2) Commerce Amendment Act 2001 (2001 No 32). See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

  Subsection (2) was amended, as from 26 May 2001, by section 7(3) Commerce Amendment Act 2001 (2001 No 32) by substituting the expression “and (c)” for the words “of this section”. See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

30 Certain provisions of contracts, etc, with respect to prices deemed to substantially lessen competition

• (1) Without limiting the generality of section 27 of this Act, a provision of a contract, arrangement, or understanding shall be deemed for the purposes of that section to have the purpose, or to have or to be likely to have the effect, of substantially lessening competition in a market if the provision has the purpose, or has or is likely to have the effect of fixing, controlling, or maintaining, or providing for the fixing, controlling, or maintaining, of the price for goods or services, or any discount, allowance, rebate, or credit in relation to goods or services, that are—

  • (a) Supplied or acquired by the parties to the contract, arrangement, or understanding, or by any of them, or by any bodies corporate that are interconnected with any of them, in competition with each other; or

  • (b) Resupplied by persons to whom the goods are supplied by the parties to the contract, arrangement, or understanding, or by any of them, or by any bodies corporate that are interconnected with any of them in competition with each other.

  (2) The reference in subsection (1)(a) of this section to the supply or acquisition of goods or services by persons in competition with each other includes a reference to the supply or acquisition of goods or services by persons who, but for a provision of any contract, arrangement, or understanding would be, or would be likely to be, in competition with each other in relation to the supply or acquisition of the goods or services.

  Compare: Trade Practices Act 1974 (Aust), s 45A(1), (7), (8)

31 Joint venture pricing exempt from application of section 30

• (1) For the purposes of this section—

  • (a) Joint venture means an activity in trade—

    • (i) Carried on by 2 or more persons, whether or not in partnership; or

    • (ii) Carried on by a body corporate for the purpose of enabling 2 or more persons to carry on that activity jointly by means of their joint control, or by means of their ownership of shares in the capital, of that body corporate or an interconnected body corporate:

  • (b) A reference to a contract or arrangement entered into, or an understanding arrived at for the purposes of a joint venture shall, in relation to a joint venture by way of an activity carried on by a body corporate in terms of paragraph (a)(ii) of this subsection, be read as including a reference to the memorandum and articles of association, rules, or other document that constitute or constitutes, or is or are to constitute, that body corporate.

  (2) Nothing in section 30 of this Act applies to a provision of a contract or arrangement entered into, or an understanding arrived at for the purposes of a joint venture, to the extent that the provision relates to—

  • (a) The joint supply by the parties to the joint venture, or the supply by the parties to the joint venture in proportion to their respective interests in the joint venture, of goods jointly produced by those parties in pursuance of the joint venture; or

  • (b) The joint supply by the parties to the joint venture of services in pursuance of the joint venture, or the supply by the parties to the joint venture in proportion to their respective interests in the joint venture, of services in pursuance of, and made available as a result of, the joint venture; or

  • (c) In the case of a joint venture carried on by a body corporate in terms of subsection (1)(a)(ii) of this section,—

    • (i) The supply by that body corporate of goods produced by it in pursuance of the joint venture; or

    • (ii) The supply by that body corporate of services in pursuance of the joint venture, not being services supplied on behalf of the body corporate by a person who is the owner of shares in the capital of the body corporate, or a body corporate that is interconnected with such a person.

  Compare: Trade Practices Act 1974 (Aust), ss 4J, 45A(2)

32 Certain recommendations as to prices for goods and services exempt from application of section 30

• Nothing in section 30 of this Act applies to a provision of a contract, arrangement, or understanding, to the extent that the provision recommends or provides for the recommending of the price for, or a discount, allowance, rebate or credit in relation to goods or services where the parties to the contract, or arrangement, or understanding include not less than 50 persons (bodies corporate that are interconnected being counted as a single person) who supply or acquire, in trade, goods or services to which the provision applies.

  Compare: Trade Practices Act 1974 (Aust), s 45A(3)

33 Joint buying and promotion arrangements exempt from application of section 30

• Nothing in section 30 of this Act applies to a provision of a contract, arrangement, or understanding that—

  • (a) Relates to the price for goods or services to be collectively acquired, whether directly or indirectly, by parties to the contract, arrangement, or understanding; or

  • (b) Provides for joint advertising of the price for the resupply of goods so acquired.

  Compare: Trade Practices Act 1974 (Aust), s 45A(4)

34 Certain provisions of covenants with respect to prices deemed to substantially lessen competition

• (1) Without limiting the generality of section 28 of this Act, a covenant shall be deemed for the purposes of that section to have the purpose, or to have or to be likely to have the effect, of substantially lessening competition in a market if the covenant has the purpose or has or is likely to have the effect of fixing, controlling, or maintaining, or providing for the fixing, controlling or maintaining of the price for goods or services, or any discount, allowance, rebate, or credit in relation to goods or services, that are—

  • (a) Supplied or acquired by the persons giving the covenant or the persons entitled to the benefit of the covenant, or by any of them, or by bodies corporate that are interconnected with any of them, in competition with each other; or

  • (b) Resupplied by persons to whom the goods are supplied by the persons giving the covenant or the persons entitled to the benefit of the covenant, or by any of them, or by bodies corporate that are interconnected with any of them, in competition with each other.

  (2) The reference in subsection (1)(a) of this section to the supply or acquisition of goods or services by persons in competition with each other includes a reference to the supply or acquisition of goods or services by persons who, but for the covenant, would be in competition with each other in relation to the supply or acquisition of the goods or services.

  Compare: Trade Practices Act 1974 (Aust), s 45C

35 Contracts or covenants subject to authorisation not prohibited under certain conditions

• [Repealed]

  Section 35 was repealed, as from 26 May 2001, by section 8 Commerce Amendment Act 2001 (2001 No 32). See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

36 Taking advantage of market power

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

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

  • (a) restricting the entry of a person into that or any other market; or

  • (b) preventing or deterring a person from engaging in competitive conduct in that or any other market; or

  • (c) eliminating a person from that or any other market.

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

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

  Compare: Trade Practices Act 1974 (Aust), s 46

  Subsection (2) was substituted, as from 1 July 1990, by section 14 Commerce Amendment Act 1990 (1990 No 41).

  Sections 36 and 36A were substituted, as from 26 May 2001, by section 9(1) Commerce Amendment Act 2001 (2001 No 32). See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

36A Taking advantage of market power in trans-Tasman markets

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

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

  • (a) in a market; or

  • (b) in a market in Australia; or

  • (c) in a market in New Zealand and Australia.

  (3) The purposes are as follows:

  • (a) restricting the entry of a person into a market that is not a market exclusively for services:

  • (b) preventing or deterring a person from engaging in competitive conduct in a market that is not a market exclusively for services:

  • (c) eliminating a person from a market that is not a market exclusively for services.

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

  • (a) a statutory intellectual property right, within the meaning of section 45(2), in New Zealand:

  • (b) a statutory intellectual property right in Australia.

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

  Compare: Trade Practices Act (Aust), s 46

  The original section 36A was inserted, as from 1 July 1990, by section 15 Commerce Amendment Act 1990 (1990 No 41).

  Sections 36 and 36A were substituted, as from 26 May 2001, by section 9(1) Commerce Amendment Act 2001 (2001 No 32). See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

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 was inserted, as from 26 May 2001, by section 9(1) Commerce Amendment Act 2001 (2001 No 32). See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

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) of this section.

  (3) The acts referred to for the purposes of subsection (2) of this section 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) of this subsection; 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) of this section,—

  • (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.

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) of this section,—

  • (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) of this Act, 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 this subsection) 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 (Aust), s 97

40 Withholding the supply of goods

• For the purposes of section 37(3)(d) and (e) of this Act, 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, of this section.

  Compare: Trade Practices Act 1974 (Aust), s 98

41 Preventing the supply of goods

• For the purposes of section 38 of this Act,—

  • (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) of this Act it is proved that—

  • (a) The supplier has acted in a manner referred to in section 40 of this Act; 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) of this Act—

  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) of this section 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 (Aust), s 100(1), (2)

43 Statutory exceptions

• (1) Nothing in this Part of this Act 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) of this section, 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) of this section.

  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 of this Act 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 obligating a person to comply with or apply standards of dimension, design, quality, or performance prepared or approved by the Standards Association of New Zealand or by any association or body prescribed for the purpose of this paragraph by regulations made under this Act:

  • (f) To the entering into of a contract, or arrangement, or arriving at an understanding in so far as it contains a 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) of this subsection.

  (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) Nothing in this Part of this Act applies—

  • (a) To the entering into of a contract, or arrangement, or arriving at an understanding in so far as it contains a provision exclusively for the carriage of goods by sea from a place in New Zealand to a place outside New Zealand or from a place outside New Zealand to a place in New Zealand; or

  • (b) To any act done to give effect to a provision of a contract, arrangement, or understanding referred to in paragraph (a) of this subsection.

  (3) For the purposes of subsection (2) of this section, a provision of a contract, arrangement, or understanding is not a provision exclusively for the carriage of goods by sea if it relates to the carriage of goods to or from a ship or the loading or unloading of a ship.

  Compare: Trade Practices Act 1974 (Aust), s 51(2), (2A)

  Subsection (1)(b) was repealed, as from 26 May 2001, by section 10(1) Commerce Amendment Act 2001 (2001 No 32). See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

  Subsection (1A) was inserted, as from 26 May 2001, by section 10(2) Commerce Amendment Act 2001 (2001 No 32). See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

  Subsection (3) was inserted, as from 31 August 1990, by section 11(1) Port Companies Amendment Act 1990 (1990 No 120).

45 Exceptions in relation to intellectual property rights

• (1) Nothing in this Part of this Act, except sections 36, 36A, 37, and 38 of this Act, applies—

  • (a) To the entering into of a contract or arrangement or arriving at an understanding in so far as it contains a provision authorising any act that would otherwise be prohibited by reason of the existence of a statutory intellectual property right; or

  • (b) To any act done to give effect to a provision of a contract, arrangement, or understanding referred to in paragraph (a) of this subsection.

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

  • (a) The Patents Act 1953; or

  • (b) The Designs Act 1953; or

  • (c) the Trade Marks Act 2002; or

  • (d) The Copyright Act 1994; or

  • (e) The Plant Variety Rights Act 1987; or

  • (f) The Layout Designs Act 1994.

  (3) For the purposes of subsection (2) of this section,—

  • (a) A person who has applied for a patent in accordance with the Patents Act 1953 and filed the complete specification in relation to the application shall, until the application is determined, be deemed to have been granted the patent to which the application relates:

  • (b) A person who has made an application for the registration of a design in accordance with section 7 of the Designs Act 1953 shall, until the application is determined, be deemed to be the registered proprietor of the design:

  • (c) A person who has made an application in accordance with section 32 of the Trade Marks Act 2002 for registration of a trade mark shall, until the application is determined, be deemed to be the registered proprietor of the trade mark:

  • (d) A person who has made an application in accordance with section 5 of the Plant Variety Rights Act 1987 shall, until the application is determined, be deemed to have been granted the plant variety rights to which the application relates.

  Section 45 was substituted, as from 1 July 1990, by section 16(1) Commerce Amendment Act 1990 (1990 No 41). See section 16(2) and (3) of that Act for the transitional provisions.

  Section 45 was substituted, as from 1 January 1995, by section 42 Layout Designs Act 1994 (1994 No 116).

  Subsection (2)(c) was substituted, as from 20 August 2003, by section 201 Trade Marks Act 2002 (2002 No 49). See clause 2 Trade Marks Act 2002 Commencement Order 2003 (SR 2003/188).

  Subsection (2)(d) was substituted, as from 1 January 1995, by section 236(1) Copyright Act 1994 (1994 No 143).

  Subsection (3)(c) was amended, as from 20 August 2003, by section 201 Trade Marks Act 2002 (2002 No 49) by substituting the words “section 32 of the Trade Marks Act 2002” for the words “section 26 of the Trade Marks Act 1953”. See clause 2 Trade Marks Act 2002 Commencement Order 2003 (SR 2003/188).

46 Saving in respect of business acquisitions

• Nothing in this Part of this Act applies—

  • (a) To the entering into of a contract or arrangement or the arriving at of an understanding in so far as the contract, arrangement, or understanding contains a provision that provides for the acquisition or disposition of assets of a business or shares; or

  • (b) To any act done to give effect to a provision of a contract, arrangement, or understanding that provides for the acquisition or disposition of assets of a business or shares.

  The original section 46 was repealed, as from 1 January 1991, by section 17 Commerce Amendment Act 1990 (1990 No 41).

  A new section 46 was inserted, as from 2 September 1996, by section 3 Commerce Amendment Act 1996 (1996 No 113).

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) 1 of them supplies goods or services to the other.

  Compare: Trade Practices Act 1974 s 50 (Aust).

  Part 3 (comprising sections 47 to 51) was substituted, as from 1 January 1991, by a new Part 3 (comprising sections 47 and 48) by section 18 Commerce Amendment Act 1990 (1990 No 41).

  Section 47 was substituted, as from 26 May 2001, by section 11(1) Commerce Amendment Act 2001 (2001 No 32). See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

48 Bare transfer of market dominance excluded

• [Repealed]

  Part 3 (comprising sections 47 to 51) was substituted, as from 1 January 1991, by a new Part 3 (comprising sections 47 and 48) by section 18 Commerce Amendment Act 1990 (1990 No 41).

  Section 48 was repealed, as from 26 May 2001 by section 11(3) Commerce Amendment Act 2001 (2001 No 32). See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

49 Application to building societies

• [Repealed]

  Sections 49 to 51 were repealed, as from 1 January 1991, by section 18 Commerce Amendment Act 1990 (1990 No 41).

50 Certain merger or takeover proposals require clearance or authorisation

• [Repealed]

  Sections 49 to 51 were repealed, as from 1 January 1991, by section 18 Commerce Amendment Act 1990 (1990 No 41).

51 Contracts subject to condition of clearance or authorisation

• [Repealed]

  Sections 49 to 51 were repealed, as from 1 January 1991, by section 18 Commerce Amendment Act 1990 (1990 No 41).

52 When control may be imposed

• Goods or services may be controlled if—

  • (a) the goods or services are, or will be, supplied or acquired in a market in which competition is limited or is likely to be lessened; and

  • (b) it is necessary or desirable for those goods or services to be controlled either—

    • (i) in the interests of persons acquiring the goods or services (whether directly or indirectly), if the goods or services are acquired from a person who faces limited or lessened competition for the supply of those goods or services; or

    • (ii) in the interests of suppliers, if the goods or services are supplied to a person who faces limited or lessened competition for the acquisition of those goods or services.

  Part 4 (comprising sections 52 to 57C) was substituted for the previous Part 4 (comprising sections 52 to 57), as from 26 May 2001, by section 12 Commerce Amendment Act 2001 (2001 No 32). See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

53 How control can be imposed

• (1) Goods or services are controlled if an Order in Council declares that they are controlled.

  (2) The Governor-General may make an order on the recommendation of the Minister.

  (3) The Minister must not make a recommendation unless the Minister is satisfied that the goods or services may be controlled under section 52.

  (4) The Minister may make a recommendation on his or her own initiative or following a report from the Commission.

  Compare: 1975 No 113 s 82(1), (4), (5)

  Part 4 (comprising sections 52 to 57C) was substituted for the previous Part 4 (comprising sections 52 to 57), as from 26 May 2001, by section 12 Commerce Amendment Act 2001 (2001 No 32). See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

54 Minister may seek advice from Commission as to thresholds for imposing controls

• (1) The Minister may require the Commission to advise him or her on the thresholds that would assist him or her in assessing whether goods or services should be controlled under section 52.

  (2) Thresholds can be expressed in quantitative or qualitative terms.

  (3) If the Minister requires advice on thresholds under this section,—

  • (a) the requirement must be in writing; and

  • (b) the requirement must specify the date by which the Commission must provide the advice; and

  • (c) the Commission must advise accordingly.

  (4) The Minister must publish the Commission's advice in a manner that he or she considers appropriate.

  Compare: 1975 No 113 s 82(7)

  Part 4 (comprising sections 52 to 57C) was substituted for the previous Part 4 (comprising sections 52 to 57), as from 26 May 2001, by section 12 Commerce Amendment Act 2001 (2001 No 32). See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

55 Effect of control being imposed

• (1) No person may supply any controlled goods or services unless—

  • (a) an authorisation under section 70 or section 71, or an undertaking under section 72, has come into effect in respect of those goods or services; and

  • (b) the goods or services are supplied in compliance with the authorisation or undertaking.

  (2) A provision of a contract or a covenant that contravenes subsection (1) is not enforceable.

  Part 4 (comprising sections 52 to 57C) was substituted for the previous Part 4 (comprising sections 52 to 57), as from 26 May 2001, by section 12 Commerce Amendment Act 2001 (2001 No 32). See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

56 Reports from Commission to Minister about controls

• (1) The Commission may report to the Minister on whether or not an Order in Council under section 53 should be made, amended, or revoked.

  (2) The Commission may have regard, in considering a report, to all matters it considers necessary or desirable.

  (3) The Commission may report at any time on its own initiative or following a request from the Minister.

  (4) If the Minister requests a report,—

  • (a) the request must be in writing; and

  • (b) the request must specify the date by which the Commission must report; and

  • (c) the Commission must report accordingly.

  (5) The Minister must publish the Commission's report in a manner that he or she considers appropriate.

  (6) Section 70E applies when the Commission is making a report as if the goods or services subject to the report were controlled goods or services, and with any other necessary modifications.

  Compare: 1975 No 113 s 87

  Part 4 (comprising sections 52 to 57C) was substituted for the previous Part 4 (comprising sections 52 to 57), as from 26 May 2001, by section 12 Commerce Amendment Act 2001 (2001 No 32). See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

57 Commission process

• (1) Before giving any advice to the Minister on thresholds under section 54 or making any report under section 56, the Commission must—

  • (a) publish its intention to do so and invite interested persons to give their views on the matter; and

  • (b) give a reasonable opportunity to interested persons to give those views; and

  • (c) have regard to those views.

  (2) The notice of intention must—

  • (a) be published in the Gazette and in any other manner (if any) that the Commission considers appropriate; and

  • (b) specify the matter to which the advice or report will relate; and

  • (c) invite interested persons to give their views on that matter to the Commission, and specify the time and manner within which they may do so.

  Compare: 1975 No 113 s 118

  Part 4 (comprising sections 52 to 57C) was substituted for the previous Part 4 (comprising sections 52 to 57), as from 26 May 2001, by section 12 Commerce Amendment Act 2001 (2001 No 32). See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

57A Technical provisions relating to declaration of control

• (1) An Order in Council made under section 53 may identify the goods or services to which it relates—

  • (a) by a description of the goods or services; or

  • (b) by a description of the kind or class to which the goods or services belong.

  (2) The order may apply to goods or, with all necessary modifications, to services—

  • (a) supplied in or for delivery within specified regions, areas, or localities in New Zealand:

  • (b) supplied in different quantities, qualities, grades, or classes:

  • (c) supplied by or to or for the use of different persons or classes of persons.

  (3) This section applies so that any part or element of goods or services can be dealt with separately.

  (4) The order must specify the date on which it expires.

  (5) If an order is made in the interests of suppliers, references in this Act to supply and supplier are to be read with any necessary modifications as if they related to the acquisition, or person acquiring, the controlled goods or services.

  (6) The order is a regulation within the meaning of the Regulations (Disallowance) Act 1989.

  A new Part 4 (comprising sections 52 to 57C) was substituted for the previous Part 4 (comprising sections 52 to 57), as from 26 May 2001, by section 12 Commerce Amendment Act 2001 (2001 No 32). See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

57B Records to be kept for control purposes

• (1) Every supplier of controlled goods or services must retain the accounts and costing records in relation to the controlled goods or services that the Commission may from time to time specify, either in relation to suppliers of those goods or services generally, or in relation to a particular supplier of the goods or services.

  (2) The supplier must retain those accounts and records for a period of 7 years from the date on which the goods or services to which they relate cease to be controlled goods or services.

  A new Part 4 (comprising sections 52 to 57C) was substituted for the previous Part 4 (comprising sections 52 to 57), as from 26 May 2001, by section 12 Commerce Amendment Act 2001 (2001 No 32). See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

57C Other Acts relating to price control not affected

• Nothing in this Part and Part 5 limits or affects the exercise by any person of any power to authorise the prices for, or impose controls on, goods or services under any other Act.

  A new Part 4 (comprising sections 52 to 57C) was substituted for the previous Part 4 (comprising sections 52 to 57), as from 26 May 2001, by section 12 Commerce Amendment Act 2001 (2001 No 32). See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

57CA Impact of certain decisions made under Gas Act 1992

• (1) This section applies if—

  • (a) the Commission is exercising powers under this Part or sections 70 to 72 in relation to the gas industry; and

  • (b) the industry body is approved or the Energy Commission is established under Part 4A of the Gas Act 1992.

  (2) The Commission must take into account, before exercising any of its powers under this Part or sections 70 to 72,—

  • (a) any gas governance regulation or rule under Part 4A of the Gas Act 1992, or any 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) the levy payable by any pipeline owner under the Gas Act 1992.

  (3) The Commission must, if asked by the Energy Commission to do so, reconsider an existing authorisation or undertaking and, to the extent that the Commission considers it necessary or desirable to do so, vary the authorisation or accept a revised undertaking, to take account of any matter referred to in subsection (2).

  Section 57CA was inserted, as from 18 October 2004, by section 4 Commerce Amendment Act (No 2) 2004 (2004 No 82).

57D Interpretation

• (1) In this Part, unless the context otherwise requires,—

  consumer has the same meaning as in section 2(1) of the Electricity Act 1992

  electricity business has the same meaning as in section 3 of the Electricity Industry Reform Act 1998

  electricity lines business has the same meaning as in section 4 of the Electricity Industry Reform Act 1998

  information and disclosed information includes any statements, certificates, or other information required to be disclosed under subpart 3

  involved has the same meaning as in section 7 of the Electricity Industry Reform Act 1998

  large electricity distributor means an electricity distributor other than a small lines business

  large electricity lines business means an electricity lines business other than a small lines business

  large line owner means a line owner other than a small lines business

  line owner and electricity distributor have the same meaning as in section 2(1) of the Electricity Act 1992; and include any person that is or was one of those persons for any part of a financial year

  national grid means the assets used or owned by Transpower for the purpose of conveying electricity

  prescribed voltage electric line means an electric line that is capable of conveying electricity at a voltage equal to or greater than 3.3 kilovolts

  small lines business means a person (other than Transpower) if—

  • (a) the total circuit length of the prescribed voltage electric lines owned by the person (or over which electricity is conveyed by the person, as the case may be) is less than 25 kilometres; or

  • (b) the electricity conveyed by the person (or the electricity conveyed over lines owned by the person, as the case may be) is less than 20 gigawatt hours per annum; or

  • (c) the electricity conveyed by the person (or the electricity conveyed over lines owned by the person, as the case may be) is conveyed to less than 500 consumers; or

  • (d) the lines owned by the person (or over which electricity is conveyed by the person, as the case may be) are not connected, directly or indirectly, to the national grid

  Transpower means Transpower New Zealand Limited or any subsidiary of, or successor to, that company.

  (2) The prescribed voltage electric lines, the electricity conveyed, or the number of consumers to whom electricity is conveyed, when measured in relation to a person (person A) include, for the purposes of subsection (1), the lines owned by, electricity conveyed by, or number of consumers of, any person (person B) who carries on an electricity business in which person A is involved or who is involved in the electricity business carried on by person A.

  Part 4A (comprising sections 57D to 57ZK) was inserted, as from 8 August 2001, by section 3 Commerce Amendment Act (No 2) 2001 (2001 No 41).

57DA Body that exercises jurisdiction under this Part

• (1) The Commerce Commission established under this Act is the body that exercises jurisdiction under this Part in respect of a large electricity lines business unless an Order in Council is in force under section 57DB or section 57DC in respect of that business.

  (2) Jurisdiction under this Part, in this section and sections 57DB to 57DF, includes all of the functions, powers, and duties of the Commerce Commission under this Part and sections 70 to 72.

  Sections 57DA to 57DF were inserted, as from 18 October 2004, by section 5 Commerce Amendment Act (No 2) 2004 (2004 No 82).

57DB Transfer of jurisdiction in respect of Transpower

• (1) The Governor-General may, by Order in Council made on the recommendation of the Minister of Energy, at any time, transfer to the Electricity Commission the jurisdiction under this Part in respect of Transpower.

  (2) Section 57DD applies before an order can be made.

  Sections 57DA to 57DF were inserted, as from 18 October 2004, by section 5 Commerce Amendment Act (No 2) 2004 (2004 No 82).

57DC Transfer of jurisdiction relating to other large electricity lines businesses

• (1) The Governor-General may, by Order in Council made on the recommendation of the Minister of Energy, transfer to the Electricity Commission the jurisdiction under this Part in respect of all other large electricity lines businesses.

  (2) The order may be made no earlier than 30 September 2007.

  (3) The order may transfer different parts of that jurisdiction on different dates, provided that the transfer of the jurisdiction to administer thresholds, and to make and enforce declarations of control, may not take effect before the later of—

  • (a) 18 months after the order is made; or

  • (b) 1 April 2009.

  (4) The order may also specify the extent to which, or the purposes for which, references in sections 86, 87, 88, 88A, 91, 92, 93, 94, 98, 99, and 100 to the Commission or the Commerce Commission apply to the Electricity Commission, in so far as they relate to any business to which the order applies.

  (5) Section 57DD applies before an order can be made.

  Sections 57DA to 57DF were inserted, as from 18 October 2004, by section 5 Commerce Amendment Act (No 2) 2004 (2004 No 82).

57DD Procedure before jurisdiction order can be made

• (1) The Minister of Energy may make a recommendation for the purpose of section 57DB or section 57DC only if—

  • (a) he or she has consulted with representatives of industry participants and representatives of consumers; and

  • (b) he or she has consulted with the Electricity Commission and the Commerce Commission and has sought a recommendation from them; and

  • (c) he or she is satisfied that the transfer of jurisdiction that would occur would result in—

    • (i) more efficient and effective achievement of the purposes of this Part; and

    • (ii) more efficient and effective achievement of the purposes of the Electricity Act 1992 as it applies to some or all large electricity line businesses; and

    • (iii) lower compliance costs for industry participants in the electricity distribution and transmission markets.

  (2) Industry participant has the same meaning as in the Electricity Act 1992.

  Sections 57DA to 57DF were inserted, as from 18 October 2004, by section 5 Commerce Amendment Act (No 2) 2004 (2004 No 82).

57DE Levies during transition in jurisdiction

• (1) The costs of the Commerce Commission during any period after an order is made to transfer jurisdiction under this Part may continue to be met via levy regulations under section 57ZK or section 74.

  (2) The costs of the Electricity Commission in respect of jurisdiction that is transferred to it must be met via levy regulations under the Electricity Act 1992.

  Sections 57DA to 57DF were inserted, as from 18 October 2004, by section 5 Commerce Amendment Act (No 2) 2004 (2004 No 82).

57DF Ministerial powers

• The Minister of Energy may not set objectives and outcomes under section 172ZK of the Electricity Act 1992 that amount to a direction to the Electricity Commission on matters relating to its jurisdiction under this Part.

  Sections 57DA to 57DF were inserted, as from 18 October 2004, by section 5 Commerce Amendment Act (No 2) 2004 (2004 No 82).

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 of this Act 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 of this Act 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 of this Act 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 of this Act 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) A person who wishes to enter into a contract or arrangement, or arrive at an understanding to which that person considers section 29 of this Act would apply, or might apply, may apply to the Commission for an authorisation for that person to enter into the contract or arrangement or arrive at the understanding.

  (6) A person who wishes to give effect to an exclusionary provision of a contract or arrangement or understanding to which that person considers section 29 of this Act would apply, or might apply, may apply to the Commission to do so, and the Commission may grant an authorisation for that person to give effect to the exclusionary provision of the contract or arrangement or understanding.

  (7) A person who wishes to engage in the practice of resale price maintenance to which that person considers section 37 of this Act 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 of this Act 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 was substituted, and sections 58A and 58B inserted, as from 1 July 1990, by section 19 Commerce Amendment Act 1990 (1990 No 41).

58A Effect of authorisation

• (1) While an authorisation under subsection (1) or subsection (5) of section 58 of this Act remains in force, as the case may be, nothing in section 27 or section 29 of this Act, as the case may be, shall prevent the applicant from—

  • (a) Entering into, or in accordance with the authorisation, giving effect to or enforcing any provision of the contract to which the authorisation relates; or

  • (b) Entering into, or in accordance with the authorisation, 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 subsection (2) or subsection (6) of section 58 of this Act remains in force, as the case may be, nothing in section 27 or section 29 of this Act, as the case may be, shall prevent the applicant from—

  • (a) In accordance with the authorisation, giving effect to or enforcing the contract to which the authorisation relates; or

  • (b) In accordance with the authorisation, giving effect to the arrangement or understanding.

  (3) While an authorisation under subsection (3) of section 58 of this section remains in force, nothing in section 28 of this Act shall prevent 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 subsection (4) of section 58 of this Act remains in force, nothing in section 28 of this Act shall prevent the applicant from carrying out or enforcing the terms of the covenant to which the authorisation relates in accordance with the authorisation.

  (5) While an authorisation under subsection (7) of section 58 of this Act remains in force, nothing in section 37 of this Act shall prevent the applicant from engaging in the practice to which the authorisation relates in accordance with the authorisation.

  (6) While an authorisation under subsection (8) of section 58 of this Act remains in force, nothing in section 38 of this Act shall prevent the applicant from doing the act to which the authorisation relates in accordance with the authorisation.

  Section 58 was substituted, and sections 58A and 58B inserted, as from 1 July 1990, by section 19 Commerce Amendment Act 1990 (1990 No 41).

58B Additional provisions relating to authorisations

• (1) Every authorisation granted by the Commission to a person under section 58 of this Act to—

  • (a) Enter into a contract or arrangement or arrive at an understanding; or

  • (b) Give effect to a provision of a contract, arrangement, or understanding; or

  • (c) Require the giving of, or give, a covenant; or

  • (d) Carry out or enforce the terms of a covenant; or

  • (e) Engage in the practice of resale price maintenance; or

  • (f) Do any act referred to in section 38 of this Act,—

  shall have 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 party to the contract, arrangement, or understanding, or the practice or act, or as a person who is or would be bound by, or entitled to the benefit of, the covenant, as the case may be.

  (2) An authorisation granted to a person under section 58 of this Act 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, or understanding, becomes a party to the contract, arrangement, or understanding at a time after the authorisation is granted:

  • (c) In the case of an authorisation to require the giving of, 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 58 was substituted, and sections 58A and 58B inserted, as from 1 July 1990, by section 19 Commerce Amendment Act 1990 (1990 No 41).

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 section 29 applies may be entered into if the requirements of subsection (2) are complied with:

  • (b) a covenant to which section 28 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 to which section 27 or section 29 applies, that the contract is subject to a condition that the provision, or exclusionary provision, as the case may be, does not come into force unless and until authorisation is granted to give effect to the provision, or exclusionary provision and that application must be made for that authorisation within 15 working days after the contract is entered into:

  • (b) in the case of a covenant to which section 28 applies, 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 and that application must be made for that authorisation within 15 working days after the covenant is made.

  The original subsection (1)(b) was substituted, and subsection (1)(c) and (1)(d) were inserted, as from 1 July 1990, by section 20 Commerce Amendment Act 1990 (1990 No 41).

  Section 59 was substituted, and sections 59A and 59B were inserted, as from 26 May 2001, by section 13 Commerce Amendment Act 2001 (2001 No 32). See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

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, 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) Subject to subsection (3), all of the parties to the contract, arrangement, or understanding must, unless and until authorisation is granted, discontinue—

  • (a) giving effect to the provision of the contract, arrangement, or understanding:

  • (b) engaging in conduct referred to in section 37 or section 38.

  (3) The parties to the contract, arrangement, or understanding may do any of the things set out in subsection (2) as long as any of the parties establishes to the satisfaction of the Commission that discontinuing any of those things would, or would be likely to, result in exceptional hardship to any of the parties.

  Section 59 was substituted, and sections 59A and 59B were inserted, as from 26 May 2001, by section 13 Commerce Amendment Act 2001 (2001 No 32). See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

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 59 was substituted, and sections 59A and 59B were inserted, as from 26 May 2001, by section 13 Commerce Amendment Act 2001 (2001 No 32). See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

60 Procedure for applications for authorisation of restrictive trade practices

• (1) Every application for an authorisation under section 58 of this Act 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) of this section, 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) of this section may give written notice to the Commission of that person's interest and the reason therefor.

  (4) On receipt of an application that does not comply with subsection (1) of this section, the Commission may, at its discretion, either—

  • (a) Accept the application and take the steps referred to in subsection (2) of this section 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) of this section.

  (5) Where the Commission declines to register an application under subsection (4)(c) of this section, it shall forthwith notify the person by or on whose behalf the application was made.

  (6) The person making the application under subsection (1) of this section, 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 of this Act.

  (7) Notwithstanding anything in subsection (2) or subsection (4) of this section, 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 (Aust), s 89(1), (2)

61 Determination of applications for authorisation of restrictive trade practices

• (1) The Commission shall, in respect of an application for an authorisation under section 58 of this Act, make a determination in writing—

  • (a) Granting such authorisation as it considers appropriate:

  • (b) Declining the application.

  (2) Any authorisation granted pursuant to section 58 of this Act may be granted subject to such conditions not inconsistent with this Act and for such period as the Commission thinks fit.

  (3) The Commission shall take into account any submissions in relation to the application made to it by the applicant or by any other person.

  (4) The Commission shall state in writing its reasons for a determination made by it.

  (5) Before making a determination in respect of an application for an authorisation, the Commission shall comply with the requirements of section 62 of this Act.

  (6) The Commission shall not make a determination granting an authorisation pursuant to an application under section 58(1) to (4) of this Act 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—

  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 or is deemed to result therefrom.

  (6A) For the purposes of subsection (6) of this section, a lessening in competition includes a lessening in competition that is not substantial.

  (7) The Commission shall not make a determination granting an authorisation pursuant to an application under section 58(5) or (6) of this Act unless it is satisfied that—

  • (a) The entering into of the contract or arrangement or the arriving at the understanding; or

  • (b) The giving effect to the exclusionary provision of the contract, or arrangement or understanding—

  as the case may be, to which the application relates, will in all the circumstances result, or be likely to result, in such a benefit to the public that—

  • (c) The contract or arrangement or understanding should be permitted to be entered into or arrived at; or

  • (d) The exclusionary provision should be permitted to be given effect to.

  (8) The Commission shall not make a determination granting an authorisation pursuant to an application under section 58(7) or (8) of this Act unless it is satisfied that—

  • (a) The engaging in the practice of resale price maintenance to which the application relates; or

  • (b) The act or conduct to which the application relates—

  as the case may be, will in all the circumstances result, or be likely to result, in such a benefit to the public that—

  • (c) The engaging in the practice should be permitted; or

  • (d) The act or conduct should be permitted.

  Compare: Trade Practices Act 1974 (Aust), s 90(1), (2), (4), (5), (6), (7), (8)

  Subsection (6) was amended, as from 1 July 1990, by section 21(1) Commerce Amendment Act 1990 (1990 No 41) by substituting the words “pursuant to an application under section 58(1) to (4)” for the words “under section 58(1)(a) to (d)”.

  Subsection (6A) was inserted, as from 2 September 1996, by section 4 Commerce Amendment Act 1996 (1996 No 113).

  Subsection (7) was amended, as from 1 July 1990, by section 21(2) Commerce Amendment Act 1990 (1990 No 41) by substituting the words “pursuant to an application under section 58(5) or (6)” for the words “under section 58(1)(e) or (f)”.

  Subsection (8) was inserted, as from 1 July 1990, by section 21(3) Commerce Amendment Act 1990 (1990 No 41).

62 Commission to prepare draft determination in relation to restrictive trade practices

• (1) Before determining an application for an authorisation under section 58 of this Act, 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) of this Act:

  • (c) Any person who has given a notice pursuant to section 60(3) of this Act 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) The applicant and each other person to whom a copy of the draft determination is sent shall notify the Commission within 10 working days after a date fixed by the Commission (not being a date earlier than the day on which the notice is sent) whether the applicant or other person wishes the Commission to hold a conference in relation to the draft determination.

  (4) If each of the persons to whom a draft determination was sent under subsection (2) of this section—

  • (a) Notifies the Commission within the period of 10 working days prescribed in subsection (3) of this section that the person does not wish the Commission to hold a conference in relation to the draft determination; or

  • (b) Does not notify the Commission within that period that the person wishes the Commission to hold such a conference—

  the Commission may make the determination at any time after the expiration of that period.

  (5) If any of the persons to whom a draft determination was sent under subsection (2) of this section notifies the Commission, in writing, within the period of 10 working days prescribed in subsection (3) of this section that he wishes the Commission to hold a conference in relation to the draft determination, the Commission shall appoint a date (not being a date later than 20 working days after the expiration of that period), 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 a draft determination was sent under subsection (2) of this section.

  (6) The Commission may, of its own motion, determine to hold a conference in relation to the a draft determination and shall appoint a date (not being a date later than 20 working days after the expiration of the period referred to in subsection (3) of this section), 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) of this section.

  (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 hold a single conference in relation to that draft determination.

  Compare: Trade Practices Act 1974 (Aust), s 90A(1), (2), (5), (6), (13)

63 Commission may grant provisional authorisation

• [Repealed]

  Section 63 was repealed, as from 1 July 1990, by section 22B Commerce Amendment Act 1990 (1990 No 41).

64 Procedure at conference

• (1) At every conference called under section 62 of this Act,—

  • (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) of this Act, 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) of this subsection 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 of this Act where in the opinion of the Commission that officer may assist the Commission in the determination of the application.

  (3) At every conference called under section 62 of this Act 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 (Aust), s 90A(7), (8), (9), (11)

  Subsection (1)(a) was amended, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115) by substituting the word “chairperson” for the word “Chairman”.

  Subsection (2) was amended, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115) by substituting the words “employee of the Commission” for the words “officer of the Commission”.

65 Commission may vary or revoke authorisations

• (1) Subject to subsection (2) of this section, if at any time after the Commission has granted an authorisation under section 58 of this Act 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) of this section 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 (Aust), s 91(4)

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 of this Act shall apply in respect of every notice given under subsection (1) of this section as if the notice was an application under section 58 of this Act.

  (3) Within 10 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) of this section expires without the Commission having given a clearance for the acquisition and without having given a notice under subsection (3)(b) of this section, the Commission shall be deemed to have declined to give a clearance for the acquisition.

  (5) A clearance given under subsection (3) of this section expires—

  • (a) Twelve 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.

  Sections 66 to 69 were substituted, as from 1 January 1991, by section 23 Commerce Amendment Act 1990 (1990 No 41).

  Subsection (3)(a) and (b) were amended, as from 26 May 2001, by section 11(2) Commerce Amendment Act 2001 (2001 No 32) by substituting the words “have, or would be likely to have, the effect of substantially lessening competition in a market” for the words “result in an effect described in paragraph (a) or paragraph (b) of section 47(1) of this Act”. See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

  Subsection (3)(a) was amended, as from 15 December 2005, by section 3(1) Commerce Amendment Act (No 2) 2005 (2005 No 95) by inserting the word “not” after the word “would”.

  Subsection (3)(b) was amended, as from 15 December 2005, by section 3(2) Commerce Amendment Act (No 2) 2005 (2005 No 95) by inserting the word “not” after the word “would”.

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 of this Act shall apply in respect of every notice given under subsection (1) of this section as if the notice was an application under section 58 of this Act.

  (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) of this subsection, 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) of this section 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) of this section.

  (6) A clearance given or an authorisation granted under subsection (3) of this section expires—

  • (a) Twelve 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.

  Sections 66 to 69 were substituted, as from 1 January 1991, by section 23 Commerce Amendment Act 1990 (1990 No 41).

  Subsection (3)(a) was amended, as from 26 May 2001, by section 11(2) Commerce Amendment Act 2001 (2001 No 32) by substituting the words “have, or would be likely to have, the effect of substantially lessening competition in a market” for the words “result in an effect described in paragraph (a) or paragraph (b) of section 47(1) of this Act”. See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

  Subsection (3)(a) was amended, as from 15 December 2005, by section 4 Commerce Amendment Act (No 2) 2005 (2005 No 95) by inserting the word “not” after the word “would”.

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 of this Act 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 of this Act.

  (2) Notwithstanding section 66 or section 67 of this Act, 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) of this section.

  (4) A person who has given a notice in respect of an acquisition under section 66 or section 67 of this Act 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 of this Act, as the case may be.

  Sections 66 to 69 were substituted, as from 1 January 1991, by section 23 Commerce Amendment Act 1990 (1990 No 41).

69 Effect of clearance or authorisation

• Nothing in section 27 or section 47 of this Act 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.

  Sections 66 to 69 were substituted, as from 1 January 1991, by section 23 Commerce Amendment Act 1990 (1990 No 41).

69A Commission may accept undertakings

• (1) In giving a clearance or granting an authorisation under section 66 or section 67 of this Act, 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) of this Act, 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 of this Act, other than an undertaking given under subsection (1) of this section.

  (3) An undertaking given to the Commission under subsection (1) of this section is deemed to form part of the clearance given or the authorisation granted in relation to the acquisition to which the undertaking relates.

  Sections 69A and 69B were inserted, as from 1 January 1991, by section 23 Commerce Amendment Act 1990 (1990 No 41).

69B Conferences in relation to business acquisitions

• (1) Before making a determination under section 66(3) or section 67(3) of this Act 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 of this Act shall apply to every conference held under this section as if—

  • (a) Every reference in that section to a conference called under section 62 of this Act, 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) of this Act, were a reference to the person by or on whose behalf a notice was given under section 66(1) or section 67(1) of this Act, 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) of this Act, as the case may be.

  Sections 69A and 69B were inserted, as from 1 January 1991, by section 23 Commerce Amendment Act 1990 (1990 No 41).

70 Authorisations in respect of prices, revenues, and quality standards

• (1) The Commission may make an authorisation in respect of all or any component of the prices, revenues, or quality standards that apply in respect of the supply of controlled goods or services, using whatever approach it considers appropriate.

  (2) The approach may include the use of formulas or other methods from which prices or revenues, or any part of a price or revenue, may be determined.

  (3) Different authorisations in respect of prices, revenues, or quality standards for controlled goods or services may be made to meet different circumstances relating to the supply of those goods or services.

  (4) Section 57A(1) to (3) applies to the authorisation with any necessary modifications.

  Compare: 1975 No 113 s 89(1), (2), (3), (4), (5), (6)

  Sections 70 to 74 were substituted, as from 26 May 2001, by section 14 Commerce Amendment Act 2001 (2001 No 32). See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

70A Considerations to be observed by Commission

• In exercising its powers under section 70, the Commission must have regard to—

  • (a) the extent to which competition is limited or is likely to be lessened in respect of the controlled goods or services:

  • (b) the necessity or desirability of safeguarding the interests of persons who acquire (whether directly or indirectly) or supply the controlled goods or services:

  • (c) the promotion of efficiency in the production and supply or acquisition of the controlled goods or services.

  Sections 70A to 70F were inserted, as from 26 May 2001, by section 14 Commerce Amendment Act 2001 (2001 No 32). See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

70B Procedure for making authorisations

• (1) An authorisation under section 70 may be made—

  • (a) on application by a supplier of controlled goods or services; or

  • (b) by the Commission on its own initiative.

  (2) Section 60 (procedure for applications), except subsections (3) and (6), applies to an application as if it were an application under section 58.

  (3) The Commission must have regard to any submissions made to it by the supplier or any acquirer of the goods or services.

  (4) The Commission must give a copy of the authorisation to the supplier of the goods or services.

  (5) The authorisation must include the Commission's reasons for making the authorisation.

  (6) The Commission must publicise the fact that it has given an authorisation, and details of where the authorisation may be found, in the Gazette.

  Sections 70A to 70F were inserted, as from 26 May 2001, by section 14 Commerce Amendment Act 2001 (2001 No 32). See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

70C Remedies and penalties if overcharging or quality standards breached

• (1) The Commission may impose, as part of an authorisation, provisions providing for remedies and penalties that apply if—

  • (a) the prices determined by the Commission in an authorisation are lower than any price charged to any person under a provisional authorisation:

  • (b) higher prices are charged, or higher revenues are derived, than those allowed for in an authorisation:

  • (c) quality standards are breached.

  (2) The remedies and penalties may include—

  • (a) the payment of refunds, specified amounts, and compensation to persons acquiring or supplying the goods or services; or

  • (b) the making of deductions from the prices charged in the future to persons acquiring the goods or services.

  (3) The remedies and penalties set by the Commission must be reasonable, taking into account the matters in section 70A.

  (4) The Commission may require the supplier to ensure that, to the extent practicable, the persons who have been affected by the higher prices or revenues or breach of quality standards receive the benefit of the remedies and penalties.

  (5) Subsection (4) applies whether or not those persons are persons in a direct contractual relationship with the supplier or are end consumers.

  (6) The Commission has the necessary powers to monitor and enforce a requirement under this section.

  (7) Section 86 applies to a failure to comply with this section as if it were a breach of section 55.

  Sections 70A to 70F were inserted, as from 26 May 2001, by section 14 Commerce Amendment Act 2001 (2001 No 32). See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

70D Terms of authorisations

• (1) An authorisation granted by the Commission under section 70 may include provisions, not inconsistent with this Act, as the Commission thinks necessary or desirable for the proper administration of the authorisation or to ensure compliance with its provisions.

  (2) For the purpose of informing acquirers and prospective acquirers of the effect of an authorisation, the Commission may require the supplier of those goods or services to communicate to acquirers the terms of an authorisation, in a manner and in the circumstances that the Commission thinks fit.

  (3) Section 70C does not limit this section.

  Sections 70A to 70F were inserted, as from 26 May 2001, by section 14 Commerce Amendment Act 2001 (2001 No 32). See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

70E Investigations and audits

• (1) The purpose of this section is to enable the Commission to gather information on which to make, administer, amend, or revoke authorisations in respect of controlled goods or services.

  (2) The Commission may—

  • (a) consult with any persons the Commission considers may assist it:

  • (b) conduct any investigations or audits—

    • (i) of how effectively and efficiently a supplier of controlled goods or services is supplying those goods or services:

    • (ii) of how any formula being considered by the Commission may be applied, or how any formula authorised by the Commission has been applied, in determining prices, revenues, or quality standards:

    • (iii) of how any conditions related to the quality of any controlled goods or services may be, or are being, fulfilled:

  • (c) as part of an investigation or audit, examine, consider, or investigate any activity, cost, revenue, transfer, asset valuation, circumstance, or event that is occurring or that occurred during the 7 years before the investigation or audit:

  • (d) by notice in writing, require the supplier of the goods or services—

    • (i) to prepare and produce forecasts, forward plans, or other information:

    • (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 the supplier of the goods or services, or any previous supplier of the goods or services whom the Commission has reason to believe may have information or documents relevant to an investigation or audit, at the time and place specified in the notice,—

    • (i) to produce or supply to the Commission documents and information in relation to those goods or services, or the prices, revenues, or operations of that person in respect of those goods or services:

    • (ii) to answer any questions about any matter that the Commission has reason to believe may be relevant to the investigation or audit:

  • (f) by notice in writing, require the 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 paragraphs (b), (c), or (e)(i).

  (3) A person is not excused from answering a question or giving any information or document under this section on the ground that to do so may incriminate or tend to incriminate that person.

  (4) Despite section 79, a self-incriminating statement or document made or given under this Act is not admissible as evidence in criminal proceedings (except proceedings under section 103).

  (5) The powers of the Commission under this section—

  • (a) do not limit its other powers under this Act; and

  • (b) do not, in their specificity, limit the generality of the other powers under this Act.

  Sections 70A to 70F were inserted, as from 26 May 2001, by section 14 Commerce Amendment Act 2001 (2001 No 32). See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

70F Revocation and amendment of authorisations

• (1) An authorisation made under section 70 may be amended or revoked at any time by the Commission by notice in the Gazette.

  (2) The Commission must, as soon as practicable, send a copy of a notice of revocation or amendment of an authorisation to the supplier of the goods or services.

  Sections 70A to 70F were inserted, as from 26 May 2001, by section 14 Commerce Amendment Act 2001 (2001 No 32). See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

71 Provisional authorisations

• (1) The Commission may authorise the supply of controlled goods or services to any person on terms determined by the Commission and specified in the notice, on the condition that the terms are only a provisional authorisation, pending the making of a final determination under section 70.

  (2) The provisions of this Act (except section 70A) applying to authorisations under section 70 apply with any necessary modifications to provisional authorisations.

  The original subsection (1) was substituted, and subsection (1A) inserted, as from 1 July 1990, by section 24 Commerce Amendment Act 1990 (1990 No 41).

  Sections 70 to 74 were substituted, as from 26 May 2001, by section 14 Commerce Amendment Act 2001 (2001 No 32). See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

72 Alternative undertakings

• (1) The Commission may, instead of making an authorisation in respect of controlled goods or services, obtain or accept a written undertaking from the supplier of those goods or services in relation to those goods or services.

  (2) Subsection (1) applies despite anything in this Part.

  (3) Sections 70A, 70E, and 70F (and section 70C, if the supplier agrees) apply with any necessary modifications as if the undertaking were an authorisation under section 70.

  Sections 70 to 74 were substituted, as from 26 May 2001, by section 14 Commerce Amendment Act 2001 (2001 No 32). See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

73 Conferences in relation to authorisations about controlled goods or services

• (1) The Commission may determine to hold a conference before making an authorisation, or obtaining or accepting an undertaking, in respect of any controlled goods or services, and—

  • (a) must appoint a date, time, and place for the holding of the conference; and

  • (b) must give notice of the date, time, and place, and of the matters to be considered at the conference, to the supplier.

  (2) Section 64 applies to a conference called under this section as if—

  • (a) the reference in that section to a conference called under section 62 were a reference to a conference called under this section; and

  • (b) the reference in section 64(1)(b) to a person to whom a draft determination was sent under section 62(2) were a reference to the supplier of the controlled goods or services; and

  • (c) the reference in section 64(6) to the making of a determination in respect of an application were a reference to making an authorisation in respect of the controlled goods or services or obtaining or accepting an undertaking in relation to the controlled goods or services, as the case may be.

  Sections 70 to 74 were substituted, as from 26 May 2001, by section 14 Commerce Amendment Act 2001 (2001 No 32). See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

74 Levies

• (1) The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations requiring 1 or more suppliers of goods or services that are controlled under Part 4 to pay a levy to the Minister in each financial year.

  (2) The order must specify the amounts of the levy or the method by which the levy is to be calculated.

  (3) The Minister must calculate the amount of the levy to be paid so as to ensure that the estimated costs to the Commission of administering Part 4 and sections 70 to 74 for goods and services that are controlled under Part 4 can be met fully out of levies, and may recalculate that amount in any subsequent financial year.

  (4) Every supplier of controlled goods or services must pay any levy so required.

  (5) The Minister must consult with the suppliers of controlled goods or services, or representatives of those suppliers, before making a recommendation.

  (6) The Minister may refund, in whole or in part, payment of any levy paid by any 1 or more suppliers under this section.

  (7) The amount of any unpaid levy is recoverable in any court of competent jurisdiction as a debt due to the Crown.

  Sections 70 to 74 were substituted, as from 26 May 2001, by section 14 Commerce Amendment Act 2001 (2001 No 32). See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

74AA Cease and Desist Commissioners