The long title was repealed, as from 26 May 2001, by section 3 Commerce Amendment Act 2001 (2001 No 32).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

1 Short Title and commencement

(1) This Act may be cited as the Commerce Act 1986.
(2) This Act shall come into force on the 1st day of May 1986.

1A Purpose

The purpose of this Act is to promote competition in markets for the long-term benefit of consumers within New Zealand.
Section 1A was inserted, as from 26 May 2001, by section 4 Commerce Amendment Act 2001 (2001 No 32). See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

2 Interpretation

(1) In this Act, unless the context otherwise requires,—
accounting period has the same meaning as in section 2(1) of the Financial Reporting Act 1993, except that every reference to an entity is a reference to a body corporate.
accounting period: this definition was inserted, as from 26 May 2001, by section 5 Commerce Amendment Act 2001 (2001 No 32). See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.
Acquire,—
- (a) In relation to goods, includes obtain by way of gift, purchase, or exchange; and also includes take on lease, hire, or hire purchase:
- (b) In relation to services, includes accept:
- (c) In relation to interests in land, includes obtain by way of gift, purchase, exchange, lease or licence.
Arrive at, in relation to an understanding, includes reach, and enter into
Assets includes intangible assets
Assets: this definition was inserted, as from 1 January 1991, by section 2(1) Commerce Amendment Act 1990 (1990 No 41).
associate member means a member appointed under section 11(1).
“associate member”: this definition was inserted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
Authorisation means an authorisation granted by the Commission under Part 5 of this Act, or by the Court on appeal under Part 6 of this Act against a determination of the Commission
Business means any undertaking—
- (a) That is carried on for gain or reward; or
- (b) In the course of which—
  - (i) Goods or services are acquired or supplied; or
  - (ii) Any interest in land is acquired or disposed of—
  otherwise than free of charge:
Chairman
[Repealed]
“Chairman”: this definition was repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
chairperson means the chairperson of the Commission.
“chairperson”: this definition was inserted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
Clearance means a clearance given by the Commission under Part 5 of this Act, or by the Court on appeal under Part 6 of this Act against a determination of the Commission
Commission—
- (a) means the Commerce Commission established under Part 1; or
- (b) for the purposes of determining any matter or class of matter specified in a direction under section 16(1), means the Division of the Commission specified in the direction in accordance with section 16(5).
“Commission”: this definition was substituted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
Commissioner means a Commissioner appointed under section 74AA(1).
Commissioner: this definition was inserted, as from 26 May 2001, by section 5 Commerce Amendment Act 2001 (2001 No 32). See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.
“Commissioner”: this definition was substituted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
Court means the High Court of New Zealand
Covenant means a covenant (including a promise not under seal) annexed to or running with an estate or interest in land (whether at law or in equity and whether or not for the benefit of other land); and proposed covenant has a corresponding meaning
Credit instrument means any agreement (whether in writing or not) acknowledging an obligation to pay a sum or sums of money on demand or at any future time or times
Deputy Chairman
[Repealed]
“Deputy Chairman”: this definition was repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
deputy chairperson means the deputy chairperson of the Commission.
“deputy chairperson”: this definition was inserted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
Document means a document in any form whether signed or initialled or otherwise authenticated by its maker or not; and includes—
- (a) Any writing on any material:
- (b) Any information recorded or stored by means of any tape-recorder, computer, or other device; and any material subsequently derived from information so recorded or stored:
- (c) Any label, marking, or other writing that identifies or describes any thing of which it forms part, or to which it is attached by any means:
- (d) Any book, map, plan, graph, or drawing:
- (e) Any photograph, film, negative, tape, or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced:
Electricity Commission means the Commission continued under section 172M of the Electricity Act 1992
Electricity Commission: this definition was inserted, as from 18 October 2004, by section 3 Commerce Amendment Act (No 2) 2004 (2004 No 82).
Give effect to, in relation to a provision of a contract, arrangement, or understanding, includes—
- (a) Do an act or thing in pursuance of or in accordance with that provision:
- (b) Enforce or purport to enforce that provision:
goods
- (a) means personal property of every kind (whether tangible or intangible); and
- (b) includes—
  - (i) ships, aircraft, and vehicles:
  - (ii) animals, including fish:
  - (iii) minerals, trees, and crops, whether on, under, or attached to land or not:
  - (iv) gas and electricity:
  - (v) to avoid doubt, water and computer software
goods: this definition was substituted, as from 8 July 2003, by section 3(1) Commerce Amendment Act 2003 (2003 No 32).
Local authority includes every local authority and every public body or other authority created by or pursuant to any public Act or local Act
member of the Commission—
- (a) means a member appointed under section 9(2); and
- (b) means the Telecommunications Commissioner appointed under section 9 of the Telecommunications Act 2001; and
- (c) in the circumstances in section 11(3), includes an associate member.
“member of the Commission”: this definition was substituted, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
Minister
[Repealed]
Minister: this definition was substituted, as from 1 December 1988, by section 4(1) Trade and Industry Repeal Act 1988 (1988 No 156).
“Minister”: this definition was repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
Minister means the Minister of the Crown who, under the authority of any warrant or with the authority of the Prime Minister, is for the time being responsible for the administration of this Act.
Minister: a second definition of this term was inserted, as from 26 May 2001, by section 5 Commerce Amendment Act 2001 (2001 No 32). See section 26 of that Act as to proceedings barred or commenced before 26 May 2001. The amending authority did not repeal the existing definition of Minister.
Officer of the Commission
[Repealed]
“Officer of the Commission”: this definition was repealed, as from 25 January 2005, by section 200 Crown Entities Act 2004 (2004 No 115).
Person, includes a local authority, and any association of persons whether incorporated or not
Place includes any premises, building, aircraft, ship, carriage, vehicle, or receptacle
Place: this definition was inserted, as from 1 July 1990, by section 2(2) Commerce Amendment Act 1990 (1990 No 41).
Prescribed means prescribed by regulations under this Act or by the Commission
Price, includes valuable consideration in any form, whether direct or indirect; and includes any consideration that in effect relates to the acquisition or supply of goods or services or the acquisition or disposition of any interest in land, although ostensibly relating to any other matter or thing
Provision, in relation to an understanding or arrangement, means any matter forming part of or relating to the understanding or arrangement
Services includes any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges, or facilities that are or are to be provided, granted, or conferred in trade; and, without limiting the generality of the foregoing, also includes the rights, benefits, privileges, or facilities that are or are to be provided, granted, or conferred under any of the following classes of contract
- (a) A contract for, or in relation to,—
  - (i) The performance of work (including work of a professional nature), whether with or without the supply of goods; or
  - (ii) The provision of, or the use or enjoyment of facilities for, accommodation, amusement, the care of persons or animals or things, entertainment, instruction, parking, or recreation; or
  - (iii) The conferring of rights, benefits, or privileges for which remuneration is payable in the form of a royalty, tribute, levy, or similar exaction:
  - (iv) to avoid doubt, the supply of electricity, gas, telecommunications, or water, or the removal of waste water:
- (b) A contract of insurance, including life assurance, and life reassurance:
- (c) A contract between a bank and a customer of the bank:
- (d) Any contract for or in relation to the lending of money or granting of credit, or the making of arrangements for the lending of money or granting of credit, or the buying or discounting of a credit instrument, or the acceptance of deposits;—
but does not include rights or benefits in the form of the supply of goods or the performance of work under a contract of service
services: paragraph (a)(iv) of this definition was inserted, as from 8 July 2003, by section 3(2) Commerce Amendment Act 2003 (2003 No 32).
Share means a share in the share capital of a company or other body corporate, whether or not it carries the right to vote at general meetings; and includes—
- (a) A beneficial interest in any such share:
- (b) A power to exercise, or control the exercise of, a right to vote attaching to any such share that carries the right to vote at meetings of the company:
- (c) A power to acquire or dispose of, or control the acquisition or disposition of, any such share:
- (d) A perpetual debenture and perpetual debenture stock:
Share: this definition was inserted, as from 1 January 1991, by section 2(3) Commerce Amendment Act 1990 (1990 No 41).
Share: this definition was amended, as from 1 July 1994, by section 2 Company Law Reform (Transitional Provisions) 1994 (1994 No 16) by substituting the words “meetings of the company” for the words “general meetings”.
Substantial
[Repealed]
Substantial: this definition was repealed, as from 1 January 1991, by section 2(4) Commerce Amendment Act 1990 (1990 No 41).
Supply,—
- (a) In relation to goods, includes supply (or resupply) by way of gift, sale, exchange, lease, hire, or hire purchase; and
- (b) In relation to services, includes provide, grant, or confer;—
and supply as a noun, supplied, and supplier have corresponding meanings
Trade means any trade, business, industry, profession, occupation, activity of commerce, or undertaking relating to the supply or acquisition of goods or services or to the disposition or acquisition of any interest in land
turnover means the total gross revenues (exclusive of any tax required to be collected) received or receivable by a body corporate in an accounting period as a result of trading by that body corporate within New Zealand.
turnover: this definition was inserted, as from 26 May 2001, by section 5 Commerce Amendment Act 2001 (2001 No 32). See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.
Working day means any day of the week other than—
- (a) Saturday, Sunday, Good Friday, Easter Monday, Anzac Day, Labour Day, the Sovereign's birthday, and Waitangi Day; and
- (b) A day in the period commencing with the 25th day of December in any year and ending with the 15th day of January in the following year.
(1A) In this Act (except sections 36, 36A, and 47(3) and (4)) substantial means real or of substance.
(2) In this Act,—
- (a) A reference to engaging in conduct shall be read as a reference to doing or refusing to do any act, including—
  - (i) The entering into, or the giving effect to a provision of, a contract or arrangement; or
  - (ii) The arriving at, or the giving effect to a provision of, an understanding; or
  - (iii) The requiring of the giving of, or the giving of, a covenant:
- (b) A reference to conduct, when that expression is used as a noun otherwise than as mentioned in paragraph (a) of this subsection, shall be read as a reference to the doing of, or the refusing to do, any act, including—
  - (i) The entering into, or the giving effect to a provision of, a contract or arrangement; or
  - (ii) The arriving at, or the giving effect to a provision of, an understanding; or
  - (iii) The requiring of the giving of, or the giving of, a covenant:
- (c) A reference to refusing to do an act includes a reference to—
  - (i) Refraining (otherwise than inadvertently) from doing that act; or
  - (ii) Making it known that that act will not be done:
- (d) A reference to a person offering to do an act, or to do an act on a particular condition, includes a reference to the person making it known that the person will accept applications, offers, or proposals for the person to do that act or to do that act on that condition, as the case may be.
(3) Where any provision of this Act is expressed to render a provision of a contract or a covenant unenforceable if the provision of the contract or the covenant has or is likely to have a particular effect, that provision of this Act applies in relation to the provision of the contract or the covenant at any time when the provision of the contract or the covenant has or is likely to have that effect, notwithstanding that—
- (a) At an earlier time the provision of the contract or the covenant did not have that effect or was not regarded as likely to have that effect; or
- (b) The provision of the contract or the covenant will not or may not have that effect at a later time.
(4) In this Act—
- (a) A reference to the acquisition of goods includes a reference to the acquisition of property in, or rights in relation to, goods in pursuance of a supply of the goods:
- (b) A reference to the supply or acquisition of goods or services includes a reference to agreeing to supply or acquire goods or services:
- (c) A reference to the supply or acquisition of goods includes a reference to the supply or acquisition of goods together with other property or services or both:
- (d) A reference to the supply or acquisition of services includes a reference to the supply or acquisition of services together with property or other services or both:
- (e) A reference to the resupply of goods acquired from a person includes a reference to—
  - (i) A supply of the goods to another person in an altered form or condition; and
  - (ii) A supply to another person of other goods in which the goods have been incorporated.
(5) For the purposes of this Act—
- (a) A provision of a contract, arrangement or understanding, or a covenant shall be deemed to have had, or to have, a particular purpose if—
  - (i) The provision was or is included in the contract, arrangement or understanding, or the covenant was or is required to be given, for that purpose or purposes that included or include that purpose; and
  - (ii) That purpose was or is a substantial purpose:
- (b) A person shall be deemed to have engaged, or to engage, in conduct for a particular purpose or a particular reason if—
  - (i) That person engaged or engages in that conduct for that purpose or reason or for purposes or reasons that included or include that purpose or reason; and
  - (ii) That purpose or reason was or is a substantial purpose or reason.
(6) In this Act—
- (a) A reference to a contract shall be construed as including a reference to a lease of, or a licence in respect of, any land or a building or part of a building, and shall be so construed notwithstanding any express reference in this Act to any such lease or licence:
- (b) A reference to making or entering into a contract, in relation to such a lease or licence, shall be read as a reference to granting or taking the lease or licence:
- (c) A reference to a party to a contract, in relation to such a lease or licence, shall be read as including a reference to any person bound by, or entitled to the benefit of, any provision contained in the lease or licence.
(7) For the purposes of this Act, any 2 bodies corporate are to be treated as interconnected if—
- (a) One of them is a body corporate of which the other is a subsidiary (within the meaning of sections 158 and 158A of the Companies Act 1955 or sections 5 and 6 of the Companies Act 1993, as the case may be); or
- (b) Both of them are subsidiaries (within the meaning of those sections) of the same body corporate; or
- (ba) both of them are entities referred to by any of the paragraphs (other than paragraph (e)) of the definition of transferor in section 2(1) of the Health Sector (Transfers) Act 1993; or.
- (c) Both of them are interconnected with bodies corporate that, in accordance with paragraph (a) or paragraph (b) of this subsection, are interconnected—
and interconnected bodies corporate has a corresponding meaning.
(7A) For the purposes of subsection (7)(a) and (b) of this section, no body corporate shall be regarded as a subsidiary (within the meaning of sections 158 and 158A of the Companies Act 1955 or sections 5 and 6 of the Companies Act 1993, as the case may be) of the Crown.
(8) For the purposes of this Act—
- (a) Any contract or arrangement entered into, or understanding arrived at by an association or body of persons, shall be deemed to have been entered into or arrived at by all the persons who are members of the association or body:
- (b) Any recommendation made by an association or body of persons to its members or to any class of its members shall, notwithstanding anything to the contrary in the constitution or rules of the association or body of persons, be deemed to be an arrangement made between those members or the members of that class and between the association or body of persons and those members or the members of that class.
(9) Nothing in subsection (8) of this section applies to—
- (a) Any member of an association or body of persons who expressly notifies the association or body in writing that he disassociates himself from the contract, arrangement, or understanding or any provision thereof and who does so disassociate himself:
- (b) To any member of an association or body of persons who establishes that he had no knowledge and could not reasonably have been expected to have had knowledge of the contract, arrangement, or understanding.
Compare: 1975 No 113 ss 2(1), 67A(3); 1976 No 67 ss 22, 23(3); 1979 No 140 s 2; 1983 No 144 s 26; Trade Practices Act 1974 (Aust), ss 4, 4C, 4F, 4H
Subsection (1A) was inserted, as from 1 January 1991, by section 2(5) Commerce Amendment Act 1990 (1990 No 41).
Subsection (1A) was amended, as from 26 May 2001, by section 9(2) Commerce Amendment Act 2001 (2001 No 32) by substituting the words “sections 36, 36A, and” for the word “section”. See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.
Subsection (7) was substituted, as from 1 January 1991, by section 2(6) Commerce Amendment Act 1990 (1990 No 41).
Subsection (7)(a) was substituted, as from 1 July 1994, by section 2 Company Law Reform (Transitional Provisions) Act 1994 (1994 No 16).
Subsection (7)(b) was amended, as from 1 July 1994, by section 2 Company Law Reform (Transitional Provisions) Act 1994 (1994 No 16) by substituting the words “those sections” for the words “that section”.
Subsection (7)(ba) was inserted, as from 1 January 2001, by section 107(1) New Zealand Public Health and Disability Act 2000 (2000 No 91).
Subsection (7A) was inserted, as from 9 December 1994, by section 2(1) Commerce Amendment Act 1994 (1994 No 135).
Subsection (7A) was amended, as from 1 January 2001, by section 107(2) New Zealand Public Health and Disability Act 2000 (2000 No 91) by substituting the expression “subsection (7)(a) and (b)” for the expression “subsection (7)”.

3 Certain terms defined in relation to competition

(1) In this Act competition means workable or effective competition.
(1A) Every reference in this Act, except the reference in section 36A2(b) and (c) of this Act, to the term market is a reference to a market in New Zealand for goods or services as well as other goods or services that, as a matter of fact and commercial common sense, are substitutable for them.
(1B) The reference in section 36A2(b) of this Act to the term market, in relation to a market in Australia, is a reference to a market in Australia for goods or services as well as other goods or services that, as a matter of fact and commercial common sense, are substitutable for them.
(1C) The reference in section 36A2(c) of this Act to the term market in relation to a market in New Zealand and Australia, is a reference to a market in New Zealand and Australia for goods or services as well as other goods or services that, as a matter of fact and commercial common sense, are substitutable for them.
(2) In this Act, unless the context otherwise requires, references to the lessening of competition include references to the hindering or preventing of competition.
(3) For the purposes of this Act, the effect on competition in a market shall be determined by reference to all factors that affect competition in that market including competition from goods or services supplied or likely to be supplied by persons not resident or not carrying on business in New Zealand.
(4) In sections 27 and 28 of this Act, a reference to a market in relation to the purpose or effect in respect of competition of a provision of a contract, arrangement, or understanding, or of a covenant, or of conduct, shall be read as including a reference to—
- (a) A market in which a person who is a party to the contract, arrangement, or understanding, or any interconnected body corporate, or, as the case may be, the person or any associated person (within the meaning of section 28(7) of this Act) who requires the giving of, or gives the covenant, supplies or acquires or is likely to supply or acquire, or would, but for that provision, covenant, or conduct, supply or acquire or be likely to supply or acquire goods or services; and
- (b) Any other market in which those goods or services may be supplied or acquired.
(5) For the purposes of section 27 of this Act, a provision of a contract, arrangement, or understanding shall be deemed to have or to be likely to have the effect of substantially lessening competition in a market if that provision and—
- (a) The other provisions of that contract, arrangement, or understanding; or
- (b) The provisions of any other contract, arrangement, or understanding to which that person or any interconnected body corporate is a party—
taken together, have or are likely to have the effect of substantially lessening competition in that market.
(6) For the purposes of section 28 of this Act, a covenant shall be deemed to have or to be likely to have the effect of substantially lessening competition in a market if—
- (a) That covenant; and
- (b) Any other covenant to the benefit of which that person or an associated person (within the meaning of section 28(7) of this Act) is entitled or would be entitled if the covenant were enforceable—
taken together, have or are likely to have the effect of substantially lessening competition in that market.
(7) For the purposes of sections 27 and 28 of this Act, the engaging in conduct shall be deemed to have or to be likely to have the effect of substantially lessening competition in a market if—
- (a) The engaging in that conduct; and
- (b) The engaging by that person in conduct of the same or a similar kind—
taken together, have or are likely to have the effect of substantially lessening competition in that market.
(8) [Repealed]
(9) [Repealed]
Compare: Trade Practices Act 1974 (Aust) ss 4, 4E, 4G, 45(3), (4), 45B(4), 46
Subsection (1) was substituted, and subsections (1A) to (1C) were inserted, as from 1 July 1990, by section 3(1) Commerce Amendment Act 1990 (1990 No 41).
Subsections (1A) to (1C) were amended, as from 26 May 2001, by section 9(2) Commerce Amendment Act 2001 (2001 No 32) by substituting the expression “(2)” for the expression “(1)”. See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.
Subsection (8) was amended, as from 1 July 1990, by section 3(2) Commerce Amendment Act 1990 (1990 No 41) by substituting the expression “sections 36 and 36A” for the expression “sections 36, 66, and 67”.
Subsection (8) was repealed, as from 26 May 2001, by section 9(3) Commerce Amendment Act 2001 (2001 No 32). See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.
Subsection (9) was inserted, as from 1 July 1990, by section 3(3) Commerce Amendment Act 1990 (1990 No 41).
Subsection (9) was amended, as from 2 September 1996, by section 13(1) Commerce Amendment Act 1996 (1996 No 113) by inserting, after the number “2” where it first appears, the word “or”
Subsection (9) 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.

3A Commission to consider efficiency

Where the Commission is required under this Act to determine whether or not, or the extent to which, conduct will result, or will be likely to result, in a benefit to the public, the Commission shall have regard to any efficiencies that the Commission considers will result, or will be likely to result, from that conduct.
Section 3A was inserted, as from 1 July 1990, by section 4 Commerce Amendment Act 1990 (1990 No 41).

4 Application of Act to conduct outside New Zealand

(1) This Act extends to the engaging in conduct outside New Zealand by any person resident or carrying on business in New Zealand to the extent that such conduct affects a market in New Zealand.
(2) Without limiting subsection (1) of this section, section 36A of this Act extends to the engaging in conduct outside New Zealand by any person resident or carrying on business in Australia to the extent that such conduct affects a market, not being a market exclusively for services, in New Zealand.
(3) Without limiting subsection (1) of this section, section 47 of this Act extends to the acquisition outside New Zealand by a person (whether or not the person is resident or carries on business in New Zealand) of the assets of a business or shares to the extent that the acquisition affects a market in New Zealand.
Section 4 was substituted, as from 1 July 1990, by section 5 Commerce Amendment Act 1990 (1990 No 41).
Subsection (3) was inserted, as from 2 September 1996, by section 2 Commerce Amendment Act 1996 (1996 No 113).

5 Application of Act to the Crown

(1) Subject to this section, this Act shall bind the Crown in so far as the Crown engages in trade.
(2) The Crown shall not be liable to pay a pecuniary penalty under section 80 of this Act.
(3) The Crown shall not be liable to be prosecuted for an offence against this Act.
(4) Where it is alleged that the Crown has contravened any provision of this Act and that contravention constitutes an offence, the Commission or the person directly affected by the contravention may apply to the Court for a declaration that the Crown has contravened that provision; and, if the Court is satisfied beyond a reasonable doubt that the Crown has contravened that provision, it may make a declaration accordingly.
Compare: 1975 No 113 s 20B; 1979 No 140 s 12; Trade Practices Act 1974 (Aust), s 2A

6 Application of Act to Crown corporations

(1) This Act applies to every body corporate that is an instrument of the Crown in respect of the Government of New Zealand engaged in trade.
(2) Notwithstanding any enactment or rule of law, proceedings under Part 6 of this Act may be brought against a body corporate referred to in subsection (1) of this section.
Compare: 1975 No 113 s 20A; 1979 No 140 s 11

6A Special provisions relating to application of Act to the Crown in right of Australia and to Australian Crown corporations

Section 36A of this Act, and Parts 6 and 7 of this Act, in so far as they relate to a contravention of, or confer powers that may be exercised in relation to, that section, apply to—
- (a) The Crown in right of the Commonwealth of Australia, each of the States of the Commonwealth of Australia, and the Northern Territory and the Australian Capital Territory, in so far as the Crown engages in trade; and
- (b) Every body corporate that is an authority of the Commonwealth of Australia within the meaning of section 4 of the Trade Practices Act 1974 of the Parliament of the Commonwealth of Australia in so far as it engages in trade; and
- (c) Every body corporate established for a purpose of a State of the Commonwealth of Australia by or under a law of that State in so far as it engages in trade; and
- (d) Every body corporate in which a State of the Commonwealth of Australia or in which a body corporate referred to in paragraph (c) of this section has a controlling interest in so far as it engages in trade.
Sections 6A to 6C were inserted, as from 1 July 1990, by section 6 Commerce Amendment Act 1990 (1990 No 41).
Paragraph (b) was amended, as from 2 September 1996, by section 13(2) Commerce Amendment Act 1996 (1996 No 113) by substituting the expression “1974” for the expression “1984”.

6B Crown and Crown corporations not immune from jurisdiction in relation to certain provisions of Trade Practices Act 1974

Neither the Crown nor a body corporate that is an instrument of the Crown in respect of the Government of New Zealand is immune, and neither the Crown nor such a body corporate may claim immunity, from the jurisdiction of the courts of New Zealand and Australia in relation to a contravention of section 46A of the Trade Practices Act 1974 of the Parliament of the Commonwealth of Australia and in relation to Parts VI and XII of that Act in so far as they relate to a contravention of that section.
Sections 6A to 6C were inserted, as from 1 July 1990, by section 6 Commerce Amendment Act 1990 (1990 No 41).

6C Application of Evidence Amendment Act 1980

Nothing in the Evidence Amendment Act 1980 applies in relation to the application of section 46A of the Trade Practices Act 1974 of the Parliament of the Commonwealth of Australia or Parts VI and XII of that Act in so far as they relate to a contravention of that section.
Sections 6A to 6C were inserted, as from 1 July 1990, by section 6 Commerce Amendment Act 1990 (1990 No 41).

7 Law relating to restraint of trade and breaches of confidence not affected

(1) Nothing in this Act limits or affects any rule of law relating to restraint of trade not inconsistent with any of the provisions of this Act.
(2) Nothing in this Act limits or affects any rule of law relating to breaches of confidence.
(3) No rule of law referred to in subsection (1) or subsection (2) of this section affects the interpretation of any of the provisions of this Act.
Compare: Trade Practices Act 1974 (Aust), s 4M

Part 1
The Commerce Commission

8 Establishment of Commission

(1) There is hereby established a Commission to be called the Commerce Commission.
(2) Except as expressly provided otherwise in this or any other Act, the Commission must act independently in performing its statutory functions and duties, and exercising its statutory powers, under—
- (a) this Act; and
- (b) any other Act that expressly provides for the functions, powers, or duties of the Commission (other than the Crown Entities Act 2004).
(3) [Repealed]
(4) [Repealed]
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).

Part 2
Restrictive trade practices

Practices substantially lessening competition

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.

Price fixing

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

(1) Without limiting the generality of section 27 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

Practices substantially lessening competition conditional upon authorisation

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.

Taking advantage of market power

The heading “Taking advantage of market power” was substituted for the previous heading “Use of Dominant Position in a Market”, 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.

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.

Resale price maintenance

37 Resale price maintenance by suppliers prohibited

(1) No person shall engage in the practice of resale price maintenance.
(2) For the purposes of this section a person engages in the practice of resale price maintenance if that person (in this section referred to as the supplier) does any of the acts referred to in subsection (3) 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).

Part 3
Business acquisitions

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).

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).

Part 4
Regulated goods or services

Part 4: substituted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
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). The previous Part heading read: “Control of Prices”, and the previous subheading read: “Declaration of Price Control”. See section 26 of that Act as to proceedings barred or commenced before 26 May 2001.

Subpart 1—Preliminary provisions

Subpart 1: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

52 Overview of Part

This Part provides for the regulation of the price and quality of goods or services in markets where there is little or no competition and little or no likelihood of a substantial increase in competition.
Section 52: substituted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
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.

52A Purpose of Part

(1) The purpose of this Part is to promote the long-term benefit of consumers in markets referred to in section 52 by promoting outcomes that are consistent with outcomes produced in competitive markets such that suppliers of regulated goods or services—
- (a) have incentives to innovate and to invest, including in replacement, upgraded, and new assets; and
- (b) have incentives to improve efficiency and provide services at a quality that reflects consumer demands; and
- (c) share with consumers the benefits of efficiency gains in the supply of the regulated goods or services, including through lower prices; and
- (d) are limited in their ability to extract excessive profits.
(2) In this Part, the purpose set out in subsection (1) applies in place of the purpose set out in section 1A.
Section 52A: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

52B Outline of Part

(1) This Part provides—
- (a) generic provisions for imposing any 1 or more of 3 types of regulation on goods or services (see subpart 2); and
- (b) for the Commission to determine input methodologies applying to the supply of goods or services regulated under this Part (see subpart 3).
(2) The different types of regulation under this Part are as follows:
- (a) information disclosure regulation, under which regulated suppliers are required to disclose information in accordance with requirements determined by the Commission (see subpart 4):
- (b) negotiate/arbitrate regulation, under which regulated suppliers are required to negotiate with other parties on prices and quality, and, if negotiation is unsuccessful, to enter into binding arbitration (see subpart 5):
- (c) price-quality regulation, of which there are 2 types:
  - (i) default/customised price-quality regulation, under which default price-quality paths are set for regulated suppliers, but individual suppliers may seek a customised price-quality path instead (see subpart 6); and
  - (ii) individual price-quality regulation, under which the Commission sets a price-quality path for an individual regulated supplier (see subpart 7).
(3) Regulation of the following services is dealt with by subparts 9 to 11:
- (a) electricity lines services (subpart 9):
- (b) gas pipeline services (subpart 10):
- (c) services at certain airports (subpart 11).
(4) This section is only a guide.
Section 52B: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

52C Interpretation

In this Part, unless the context otherwise requires,—
claw-back has the meaning given to it by section 52D
consumer (other than in sections 54C, 54D, and 55A) means a person that consumes or acquires regulated goods or services
information disclosure requirement means a requirement that applies to a supplier of goods or services that are subject to information disclosure regulation, and is specified in a section 52P determination
input methodology means a description of any methodology, process, rule, or matter that includes any of the matters listed in section 52T and that is published by the Commission under section 52W; and, in relation to particular goods or services, means any input methodology, or all input methodologies, that relate to the supply, or to suppliers, of those goods or services
inquiry means an inquiry by the Commission carried out in accordance with sections 52H to 52J
price—
- (a) means any 1 or more of individual prices, aggregate prices, or revenues (whether in the form of specific numbers, or in the form of formulas by which specific numbers are derived); and
- (b) includes any related terms of payment
pricing methodologies means methodologies for setting the prices of individual goods or services, or classes of goods or services, and includes methodologies for setting different prices for different customer groups
publicly available, in relation to making a document or information available, means that—
- (a) the document or information is available for inspection, free of charge, on an Internet site that is publicly accessible at all reasonable times; and
- (b) a copy of the document or information is available for inspection at all reasonable times, free of charge, at the head office of the person that is required to make it publicly available or, if the person is the Minister, at the head office of the department responsible for the administration of this Act; and
- (c) copies of the document may be purchased by any person at a reasonable price
publicly disclose, in relation to information required to be disclosed under information disclosure regulation, means to disclose information to the public in the manner required by a section 52P determination
regulated means regulated under this Part
regulated goods or services means goods or services that are declared to be regulated—
- (a) by Order in Council made under section 52N; or
- (b) by any of subparts 9 to 11
regulated supplier means a person to whom a section 52P determination applies in relation to particular goods or services
section 52P determination means a determination by the Commission under section 52P that sets out how each type of regulation that applies to particular regulated goods or services applies to a supplier of those goods or services; and, in relation to particular goods or services, means every section 52P determination relevant to the regulation of those goods or services.
Section 52C: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

52D Meaning and application of claw-back

(1) A reference to the Commission applying claw-back is a reference to the Commission doing either of the following:
- (a) requiring a supplier to lower its prices on a temporary basis in order to compensate consumers for some or all of any over-recovery that occurred under the prices previously charged by the supplier:
- (b) allowing a supplier to recover some or all of any shortfall in its revenues that occurred under the prices previously charged by the supplier.
(2) If the Commission requires a supplier to lower its prices, it must also require that the lowering of prices must be spread over time in order to minimise undue financial hardship to the supplier.
(3) If the Commission allows a supplier to recover any shortfall, it must require that any recovery must be spread over time in order to minimise price shocks to consumers.
Section 52D: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

Subpart 2—Regulating particular goods or services

Subpart 2: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

52E Overview of process if regulation imposed on goods or services

(1) The process for imposing regulation under this subpart on particular goods or services involves the following steps:
- (a) the Commission holds an inquiry into whether, and if so how, to regulate the goods or services, and then makes a recommendation to the Minister under section 52K:
- (b) the Minister considers the Commission’s recommendation and decides whether or not to recommend to the Governor-General that regulation be imposed and, if so, which type or types of regulation:
- (c) if the Minister decides to recommend regulation, an Order in Council may be made under section 52N that makes the goods or services subject to regulation and identifies the type or types of regulation that apply:
- (d) for each type of regulated goods or services, the Commission makes a section 52P determination specifying how the applicable type or types of regulation apply to a supplier of the regulated goods or services.
(2) This section is only a guide.
Section 52E: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

52F Effect of goods or services being subject to regulation

(1) If goods or services are subject to regulation of a particular type, every regulated supplier of those goods or services must comply with—
- (a) the requirements of this Part relating to that type of regulation; and
- (b) every section 52P determination applying to the supplier.
(2) Sections 86 to 87C (which relate to offences and civil proceedings relating to contraventions of this Part) apply to a regulated supplier on and from the date on which the supplier is obliged to comply with a relevant section 52P determination.
(3) The Commission is entitled to exercise any of its powers under this Act for the purpose of monitoring compliance by regulated suppliers with regulation under this Part.
Section 52F: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

52G When goods or services may be regulated

(1) Goods or services may be regulated under this Part only if—
- (a) the goods or services are supplied in a market where there is both—
  - (i) little or no competition; and
  - (ii) little or no likelihood of a substantial increase in competition; and
- (b) there is scope for the exercise of substantial market power in relation to the goods or services, taking into account the effectiveness of existing regulation or arrangements (including ownership arrangements); and
- (c) the benefits of regulating the goods or services in meeting the purpose of this Part materially exceed the costs of regulation.
(2) In any consideration of this test, the part of the test in subsection (1)(c) need not be considered unless the parts of the test in subsection (1)(a) and (b) are satisfied.
Section 52G: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

Commission inquiry

Heading: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

52H How inquiry triggered

(1) The Commission—
- (a) must hold an inquiry if required to do so by the Minister; and
- (b) may hold an inquiry on its own initiative.
(2) Any requirement by the Minister must—
- (a) be in writing; and
- (b) specify the date by which the Commission must make a recommendation under section 52K to the Minister.
Section 52H: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

52I Commission inquiry into particular goods or services

(1) In conducting an inquiry into particular goods or services, the Commission must consider—
- (a) whether the test in section 52G is satisfied in relation to the goods or services; and
- (b) if that test is satisfied, whether the goods or services should be regulated; and
- (c) if so, how the goods or services should be regulated, including—
  - (i) how the goods or services should be defined; and
  - (ii) which type or types of regulation (as set out in section 52B(2)) the goods or services should be subject to; and
  - (iii) how that type or those types of regulation should apply to suppliers of the goods or services.
(2) As part of an inquiry into particular goods or services, the Commission—
- (a) must determine (and then apply) input methodologies for the supply of the goods or services, in accordance with subpart 3; and
- (b) must, when carrying out the analysis required by section 52G(1)(c), undertake a qualitative analysis of all material long-term efficiency and distributional considerations.
(3) As part of that qualitative analysis, the Commission must, as far as practicable,—
- (a) quantify material effects on allocative, productive, and dynamic efficiency; and
- (b) quantify material distributional and welfare consequences on suppliers and consumers; and
- (c) assess the direct and indirect costs and risks of any type of regulation considered, including administrative and compliance costs, transaction costs, and spill-over effects.
(4) As part of an inquiry, the Commission must, when considering which type of regulation might be imposed,—
- (a) assess the benefits of imposing different types of regulation in meeting the purpose of this Part against the costs of imposing those types of regulation; and
- (b) consider what would be the most cost-effective type or types of regulation in the circumstances.
(5) During an inquiry, the Commission may have regard to any other matters it considers necessary or desirable for the purpose of the inquiry.
Section 52I: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

52J Process of inquiry

(1) At the start of an inquiry, the Commission must publish in the Gazette a notice setting out,—
- (a) in the case of an inquiry required by the Minister, the Minister’s requirements; and
- (b) in the case of an inquiry on the initiative of the Commission, the terms of reference for the inquiry.
(2) The notice must set out indicative time frames and key steps.
(3) During the course of an inquiry, the Commission—
- (a) may publish, in whatever way it considers appropriate, further notices, consultation documents, or papers; and
- (b) must give interested persons a reasonable opportunity to give their views; and
- (c) may hold 1 or more conferences; and
- (d) must have regard to any views received from interested persons within any time frames set.
(4) Before the end of an inquiry, the Commission must publish a proposed recommendation for consultation.
Section 52J: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

52K Commission's recommendation following inquiry

(1) At the end of an inquiry, having considered the matters in section 52I, the Commission must make a recommendation to the Minister on whether, in its opinion, the goods or services should be regulated.
(2) If the recommendation is that particular goods or services should be regulated, the recommendation must state the following:
- (a) how the goods or services should be specified:
- (b) which type or types of regulation should apply to the goods or services:
- (c) what input methodologies apply:
- (d) if information disclosure regulation is recommended, the material provisions of the information disclosure requirements:
- (e) if negotiate/arbitrate regulation is recommended, the material provisions of the negotiation process and arbitration process:
- (f) if default/customised price-quality regulation is recommended, the default price path and quality standards:
- (g) if individual price-quality regulation is recommended, the material provisions to apply.
(3) The Minister must publish the Commission’s recommendation, and may do so in whatever way he or she considers appropriate.
(4) To avoid doubt, a recommendation by the Commission is not a determination of the Commission.
Section 52K: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

Order in Council imposing regulation

Heading: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

52L Minister's consideration

(1) The Minister must consider any recommendation of the Commission made under section 52K.
(2) As part of that consideration, the Minister—
- (a) must consult with the relevant sector Minister (such as the Minister of Energy or the Minister of Transport); and
- (b) may request further information or advice from the Commission.
(3) If the Minister proposes, contrary to the recommendation of the Commission, that the goods or services should be regulated, or that they should be subject to a type of regulation not recommended by the Commission, the Minister must ask the Commission for written advice on what the material provisions of the relevant section 52P determination would be likely to be if the goods or services were subject to the type or types of regulation proposed by the Minister.
(4) Any request by the Minister under subsection (3), and the Commission's advice given following that request, must be made publicly available.
(5) If the Commission receives a request under subsection (3), it may, at its discretion,—
- (a) consult with interested parties; or
- (b) reopen its inquiry, in which case section 52J applies with all necessary modifications.
Section 52L: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

52M Minister's decision and recommendation

(1) Having considered the Commission’s recommendation in accordance with section 52L and any advice given following a request under section 52L(3), the Minister must—
- (a) decide whether, in the opinion of the Minister, the goods or services should be regulated; and
- (b) if the goods or services are to be regulated, decide which type or types of regulation are to apply; and
- (c) make a recommendation to that effect, if the goods or services are to be regulated.
(2) The Minister's decision may be the same as, or different from, the Commission’s recommendation under section 52K.
(3) If the Minister's decision is different from the Commission's recommendation, the Minister must set out the reasons for the decision and make the decision, with the reasons, publicly available.
Section 52M: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

52N Order in Council imposing regulation

(1) The Governor-General may, on the recommendation of the Minister made under section 52M, make an Order in Council imposing regulation on particular goods or services.
(2) The order must—
- (a) declare that the goods or services are regulated; and
- (b) state which type or types of regulation the goods or services are subject to.
(3) The order may identify the goods or services it relates to by reference to goods or (with all necessary modifications) services—
- (a) supplied in or for delivery within specified regions, areas, or localities in New Zealand; or
- (b) supplied in different quantities, qualities, grades, or classes; or
- (c) supplied by or to or for the use of different persons or classes of persons; or
- (d) any or all of paragraphs (a) to (c).
(4) Subsection (3) applies so that any part or element of goods or services can be dealt with separately.
(5) The order must include an expiry date, which must be a date not later than 20 years after its date of commencement.
(6) The order is a regulation within the meaning of the Regulations (Disallowance) Act 1989 and the Acts and Regulations Publication Act 1989.
Section 52N: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

52O Revocation or amendment of Order in Council

(1) An Order in Council made under section 52N in respect of particular goods or services may not be revoked or significantly amended unless the Commission has held an inquiry into the goods or services.
(2) In subsection (1), significantly amended means amended in a way that—
- (a) alters the type or types of regulation applying to the goods or services; or
- (b) materially alters the goods or services to which the regulation applies, so that either—
  - (i) the goods or services, or any of them, are no longer regulated; or
  - (ii) goods or services that were not identified in the original order are now subject to regulation.
(3) An Order in Council made under section 52N may be amended in any other material way only after the Commission has consulted with interested parties, but may be amended in a non-material way without prior consultation.
Section 52O: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

Commission determination about how regulation applies

Heading: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

52P Determinations by Commission under this section

(1) The Commission must make determinations under this section specifying how the relevant forms of regulation apply to suppliers of regulated goods or services.
(2) Determinations must be made,—
- (a) in the case of goods or services declared to be regulated by an Order in Council under section 52N, as soon as practicable after the Order in Council is made; and
- (b) in the case of goods or services declared to be regulated under any of subparts 9 to 11, in accordance with sections 54I, 54J, 54K, 55E, and 56E.
(3) Determinations must—
- (a) set out, for each type of regulation to which the goods or services are subject, the requirements that apply to each regulated supplier; and
- (b) set out any time frames (including the regulatory periods) that must be met or that apply; and
- (c) specify the input methodologies that apply; and
- (d) be consistent with this Part.
(4) It is not necessary for a single determination to address all matters relating to particular regulated goods or services, or to a supplier of regulated goods or services, and different parts of any determination may come into effect at different times.
(5) If a determination under this section is made following an inquiry and a recommendation under section 52K, the requirements referred to in subsection (3)(a) must not differ in any material respect from the recommendation, or (if applicable) from any advice given to the Minister under section 52L(3).
(6) A determination under this section may require a supplier to comply with the requirements set out in any other determination that has been made under this section in respect of regulated goods or services of the same type.
(7) The Commission must, as soon as practicable after making a determination under this section,—
- (a) give a copy of the determination to each supplier to whom the determination relates; and
- (b) publish a summary of it in the Gazette; and
- (c) make the whole determination publicly available.
(8) Each supplier to whom the determination relates must comply with the requirements imposed by the determination.
Section 52P: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

52Q Amendment of section 52P determination

(1) A section 52P determination may be amended in a material way only after the Commission has consulted with interested parties, but may be amended in a non-material way without prior consultation.
(2) However, the Commission is not required to conduct an inquiry before amending a determination.
(3) An amendment forms part of the determination it amends.
(4) An amendment comes into force on the date specified in the amendment, which must be (except in the case of an amendment relating to a customised price-quality path that takes effect under section 53ZA(3)) a date on or after the date on which it, or a summary of it, is published in the Gazette.
(5) The Commission must, as soon as practicable after making an amendment,—
- (a) give a copy of the amendment to each supplier to whom the determination relates; and
- (b) publish the amendment, or a summary of the amendment, in the Gazette; and
- (c) make a copy of the determination, as amended by the amendment, publicly available.
Section 52Q: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

Subpart 3—Input methodologies

Subpart 3: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

52R Purpose of input methodologies

The purpose of input methodologies is to promote certainty for suppliers and consumers in relation to the rules, requirements, and processes applying to the regulation, or proposed regulation, of goods or services under this Part.
Section 52R: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

52S How published input methodologies apply

Every relevant input methodology relating to the supply of particular goods or services that is published under section 52W must be applied,—
- (a) if the goods or services are regulated, by every regulated supplier of the goods or services in accordance with the relevant section 52P determination; and
- (b) in all cases, by every person entitled or required under this Act to recommend, decide, or determine—
  - (i) whether or how regulation under this Part should apply to the goods or services; or
  - (ii) the prices or quality standards applying to the goods or services.
Section 52S: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

52T Matters covered by input methodologies

(1) The input methodologies relating to particular goods or services must include, to the extent applicable to the type of regulation under consideration,—
- (a) methodologies for evaluating or determining the following matters in respect of the supply of the goods or services:
  - (i) cost of capital:
  - (ii) valuation of assets, including depreciation, and treatment of revaluations:
  - (iii) allocation of common costs, including between activities, businesses, consumer classes, and geographic areas:
  - (iv) treatment of taxation; and
- (b) pricing methodologies; and
- (c) regulatory processes and rules, such as—
  - (i) the specification and definition of prices, including identifying any costs that can be passed through to prices (which may not include the legal costs of any appeals against input methodology determinations under this Part or of any appeals under section 91 or section 97); and
  - (ii) identifying circumstances in which price-quality paths may be reconsidered within a regulatory period; and
- (d) matters relating to proposals by a regulated supplier for a customised price-quality path, including—
  - (i) requirements that must be met by the regulated supplier, including the scope and specificity of information required, the extent of independent verification and audit, and the extent of consultation and agreement with consumers; and
  - (ii) the criteria that the Commission will use to evaluate any proposal.
(2) Every input methodology must, as far as is reasonably practicable,—
- (a) set out the matters listed in subsection (1) in sufficient detail so that each affected supplier is reasonably able to estimate the material effects of the methodology on the supplier; and
- (b) set out how the Commission intends to apply the input methodology to particular types of goods or services; and
- (c) be consistent with the other input methodologies that relate to the same type of goods or services.
(3) Any methodologies referred to in subsection (1)(a)(iii) must not unduly deter investment by a supplier of regulated goods or services in the provision of other goods or services.
Section 52T: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

52U When input methodologies must be determined

(1) The Commission must determine input methodologies for the goods or services regulated under subparts 9 to 11 no later than 30 June 2010.
(2) The Minister may, on the written request of the Commission, extend the deadline referred to in subsection (1) once, by a period of up to 6 months, in which case notice of the extension must be given in the Gazette.
(3) The Commission must determine input methodologies for any goods or services that are the subject of an inquiry as soon as practicable after the Commission is satisfied that the parts of the test for the regulation of goods or services set out in paragraphs (a) and (b) of section 52G(1) are satisfied.
Section 52U: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

52V Commission process for determining input methodologies

(1) When the Commission begins work on an input methodology, it must publish a notice of intention to do so that—
- (a) outlines the process that will be followed; and
- (b) sets out the proposed time frames.
(2) During the course of its work on an input methodology, the Commission—
- (a) must publish a draft methodology; and
- (b) must give interested persons a reasonable opportunity to give their views on that draft methodology; and
- (c) may hold 1 or more conferences; and
- (d) must have regard to any views received from interested persons within any time frames set.
(3) Despite subsections (1) and (2), any work done or action taken (including any consultation) by the Commission on input methodologies before the commencement of this section may be treated by the Commission and any person consulted as work done or action taken under this section.
(4) The Commission must consult with interested parties before deciding to treat earlier work or action as work or action done under this section.
Section 52V: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

52W Publication of input methodologies

(1) The Commission must publish every input methodology, and every amendment to an input methodology,—
- (a) within 10 working days after the Commission determines the input methodology or amendment; and
- (b) if the input methodology or an amendment is determined by the High Court on appeal, within 10 working days after the Commission receives a copy of the decision of the High Court.
(2) The publication must be by way of a notice in the Gazette setting out—
- (a) a brief description of the nature of the methodology and the goods or services to which it applies; and
- (b) the reasons for determining that methodology; and
- (c) how it is publicly available.
(3) The Commission must make every input methodology, and every amended input methodology, publicly available as soon as the input methodology or amendment is published.
Section 52W: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

52X Amendment of input methodologies

If the Commission proposes to amend an input methodology by making a material change, section 52V applies as if the amendment were a new input methodology.
Section 52X: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

52Y Review and date of publication of input methodologies

(1) The Commission must review each input methodology no later than 7 years after its date of publication and, after that, at intervals of no more than 7 years.
(2) The date of publication of an input methodology is the date on which it is published under section 52W(1)(a) or, if it is subsequently published under section 52W(1)(b), the date of that later publication.
(3) Section 52V applies, with all necessary modifications, as if the review were a new input methodology.
(4) Section 52W applies if, following a review, an input methodology is replaced or amended.
Section 52Y: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

Appeals against input methodology determinations

Heading: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

52Z Appeals against input methodology determinations

(1) Any person who gave views on an input methodology determination to the Commission as part of the process under section 52V, and who, in the opinion of the Court, has a significant interest in the matter, may appeal to the High Court against the determination.
(2) In this section and section 52ZA, input methodology determination means any of the following:
- (a) the initial determination of an input methodology:
- (b) any determination by the Commission that amends the input methodology:
- (c) any determination by the Commission of an input methodology following a review of the input methodology.
(3) In determining an appeal against an input methodology determination, the Court may do any of the following:
- (a) decline the appeal and confirm the input methodology set out in the determination:
- (b) allow the appeal by—
  - (i) amending the input methodology; or
  - (ii) revoking the input methodology and substituting a new one; or
  - (iii) referring the input methodology determination back to the Commission with directions as to the particular matters that require amendment.
(4) The Court may only exercise its powers under subsection (3)(b) if it is satisfied that the amended or substituted input methodology is (or will be, in the case of subsection (3)(b)(iii)) materially better in meeting the purpose of this Part, the purpose in section 52R, or both.
(5) If the Court allows an appeal, the Commission may seek clarification from the Court on any matter for the purpose of implementing the Court's decision.
(6) There is a right of appeal under section 97 to the Court of Appeal from any decision or order of the High Court under this section on a point of law only.
Section 52Z: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

52ZA Process for appeals

(1) Any appeal under section 52Z must be brought within 20 working days after the date on which the input methodology determination is published.
(2) The appeal must be by way of rehearing and must be conducted solely on the basis of the documentary information and views that were before the Commission when it made its determination, and no party may introduce any new material during the appeal.
(3) The High Court must sit with 2 lay members (unless the Court considers that only 1 is required).
(4) Each of the lay members must have relevant experience and be appointed from the pool of people appointed under section 77 to be members of the Court for the purpose of hearing the appeal.
(5) Section 77 applies, and section 77(14) is not limited by subsection (3) of this section.
Section 52ZA: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

53 Input methodology applies pending outcome of appeal

(1) The High Court may not stay the application of section 52S with respect to any input methodology published under section 52W until any appeal against it is finally determined.
(2) Section 52S continues to apply with respect to every input methodology published under section 52W until any appeal against the input methodology is finally determined.
Section 53: substituted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
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.

Subpart 4—Information disclosure regulation

Subpart 4: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

53A Purpose of information disclosure regulation

The purpose of information disclosure regulation is to ensure that sufficient information is readily available to interested persons to assess whether the purpose of this Part is being met.
Section 53A: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

53B Effect of being subject to information disclosure regulation

(1) Every supplier of goods or services that are subject to information disclosure regulation must—
- (a) publicly disclose information in accordance with the information disclosure requirements set out in the relevant section 52P determination; and
- (b) supply to the Commission a copy of all information disclosed in accordance with the section 52P determination, within 5 working days after the information is first made publicly available; and
- (c) supply to the Commission, in accordance with a written notice by the Commission, any further statements, reports, agreements, particulars, or other information required for the purpose of monitoring the supplier’s compliance with the section 52P determination.
(2) If a supplier of goods or services is subject to information disclosure regulation, the Commission—
- (a) may monitor and analyse all information disclosed in accordance with the information disclosure requirements; and
- (b) must, as soon as practicable after any information is publicly disclosed, publish a summary and analysis of that information for the purpose of promoting greater understanding of the performance of individual regulated suppliers, their relative performance, and the changes in performance over time.
Section 53B: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

53C Section 52P determination to set out information disclosure requirements

(1) A section 52P determination relating to goods or services that are subject to information disclosure regulation must—
- (a) specify the goods or services to which it applies; and
- (b) specify the suppliers to which it applies; and
- (c) specify the information to be disclosed; and
- (d) specify the manner in which the information is to be disclosed; and
- (e) specify the form of disclosure; and
- (f) specify when, and for how long, information must be disclosed; and
- (g) specify the input methodologies that apply; and
- (h) specify any other methodologies that are required in the preparation or compilation of the information.
(2) Information required to be disclosed may include (without limitation) any or all of the following:
- (a) financial statements (including projected financial statements):
- (b) asset values and valuation reports:
- (c) prices, terms and conditions relating to prices, and pricing methodologies:
- (d) contracts:
- (e) transactions with related parties:
- (f) financial and non-financial performance measures:
- (g) plans and forecasts, including (without limitation) plans and forecasts about demand, investments, prices, revenues, quality and service levels, capacity and spare capacity, and efficiency improvements:
- (h) asset management plans:
- (i) quality performance measures and statistics:
- (j) assumptions, policies, and methodologies used or applied in these or other areas:
- (k) consolidated information that includes information about unregulated goods or services, in which case section 53D applies.
(3) The section 52P determination may do all or any of the following:
- (a) require disclosed information, or information from which disclosed information is derived (in whole or in part), to be verified by statutory declaration:
- (b) require independent audits of disclosed information:
- (c) require the retention of data on which disclosed information is based, and associated documentation:
- (d) exempt any person or class of persons, or provide for exemptions, from any requirements of the determination, and provide for the revocation of exemptions:
- (e) provide for transitional provisions:
- (f) impose any other requirements that the Commission considers necessary or desirable to promote the purpose of information disclosure regulation.
(4) The section 52P determination may not require a supplier to publicly disclose any provision of an existing contract that, immediately before the goods or services became subject to information disclosure regulation, was not required by or under Part 4A (as defined in section 54B) or any other enactment to be publicly disclosed.
Section 53C: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

53D Consolidated information may also be required

(1) The purpose of this section is to enable the Commission to monitor compliance with information disclosure regulation applying to regulated goods or services.
(2) A section 52P determination may require information referred to in subsection (3) to be disclosed only to the extent required to enable the purpose in subsection (1) to be met.
(3) If a regulated supplier provides goods or services that are not subject to regulation under this Part (unregulated goods or services), the supplier may be required to disclose—
- (a) consolidated financial statements, and any other information referred to in section 53C, for all businesses (including those related to the supply of unregulated goods or services) undertaken by that supplier; and
- (b) consolidated financial statements, and any other information referred to in section 53C, for the supply of all unregulated goods or services in aggregate; and
- (c) reconciliation between information provided under paragraphs (a) and (b) with information disclosed in accordance with information disclosure requirements applying to the regulated goods or services.
(4) If a supplier supplies more than 1 kind of regulated goods or services, the Commission may require the supplier to provide consolidated information and performance measures relating to all, or any combination of, the regulated goods or services.
Section 53D: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

53E Charge for providing copies to public

(1) A person who is required, by a section 52P determination, to provide copies of statements and information to the public on request may charge for providing those copies.
(2) The charge must be no more than is reasonably required to recover the costs of providing those copies.
Section 53E: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

53F Limited exception to obligation to apply input methodologies

(1) Despite section 52S, suppliers that are subject only to information disclosure regulation do not have to apply the following input methodologies in accordance with that section:
- (a) pricing methodologies:
- (b) methodologies for evaluating or determining the cost of capital.
(2) However, to avoid doubt, subsection (1) does not affect anything else in this subpart, and in particular does not affect—
- (a) section 53B(2) (which means the Commission may use the input methodologies referred to in subsection (1) to monitor and analyse information); and
- (b) section 53C(2) (which means that suppliers may still be required to disclose information about the pricing methodologies, and methodologies for evaluation or determining the cost of capital, that they do in fact use).
Section 53F: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

Subpart 5—Negotiate/arbitrate regulation

Subpart 5: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

53G Purpose of negotiate/arbitrate regulation

The purpose of negotiate/arbitrate regulation is to encourage a supplier and its customers to reach agreement, through negotiation, on the supplier's prices and quality standards during a specified regulatory period, and to provide for binding arbitration if negotiation is unsuccessful.
Section 53G: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

53H Overview of negotiate/arbitrate regulation

(1) If a regulated supplier is subject to negotiate/arbitrate regulation,—
- (a) the supplier must enter into negotiations with parties identified by the Commission in order to reach agreement on the matters identified by the Commission (being the prices and quality standards associated with regulated goods or services) that will apply for the regulatory period specified by the Commission; and
- (b) if the negotiations fail to reach a settlement of all the matters within the time frames set by the Commission, the parties must enter into arbitration to resolve the outstanding matters; and
- (c) the terms of the arbitration are set by the Commission, and the arbitral award is binding on the parties unless or until they agree to vary it.
(2) This section is only a guide.
Section 53H: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

53I Section 52P determination to set out requirements for application of negotiate/arbitrate regulation

(1) If negotiate/arbitrate regulation applies to regulated goods or services, the section 52P determination must set out the following:
- (a) the parties to the negotiation or arbitration:
- (b) the matters (including the prices and quality standards associated with the regulated goods or services) that the parties must agree to by negotiation, or are bound to by arbitral award:
- (c) the period or periods for which any negotiated settlement or arbitral award applies:
- (d) a reference to the input methodologies that apply:
- (e) the information that the parties must provide to the other parties and, if necessary, the arbitrator, and the time frames for that provision:
- (f) the processes for negotiations, including the form of involvement by the parties, and the form, scope, and coverage of any negotiated settlement:
- (g) the time frames for the negotiations (including stages in negotiations) and, in particular, the date by which, if negotiations are not complete, the parties must enter into arbitration to settle any remaining unresolved matters:
- (h) the terms of any compulsory arbitration that takes place under section 53J, including its form, procedures, the allocation of costs, and powers of the arbitrator:
- (i) the date by which the arbitral award must be made:
- (j) the manner in which the parties must make publicly available any negotiated settlement, arbitral award, or both.
(2) The Commission may include in the determination any other matters it considers necessary or desirable to promote the purpose of negotiate/arbitrate regulation.
(3) If the parties to a negotiation agree to arbitration, the arbitration may be on whatever terms they agree to, but must be completed within the time frames set for the negotiation.
(4) The Commission may extend any time frames set out in a section 52P determination.
(5) The terms of arbitration set by the Commission must—
- (a) allow the parties a reasonable period within which to agree on an arbitrator but, if agreement is not reached within that period (or any extended period allowed under subsection (4)), the terms must provide that the Commission must appoint the arbitrator (and may not appoint itself as the arbitrator); and
- (b) include provisions enabling the parties to enforce the arbitral award; and
- (c) include a right of appeal to the High Court, exercisable by any party to the arbitration, on a point of law only.
Section 53I: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

53J Compulsory arbitration

(1) If a settlement is not reached (whether by negotiation or voluntary arbitration) within the time frame set by the Commission, the parties must enter into arbitration under this section on the terms set out in the section 52P determination.
(2) The Arbitration Act 1996 does not apply to arbitration under this section, but the Commission may, in setting out the terms of the arbitration in the section 52P determination, apply any provisions of that Act to the arbitration.
(3) The arbitrator’s role is to make an arbitral award that promotes the purpose of this Part.
(4) If final consumers of regulated goods or services are not directly represented as parties in the arbitration, the arbitrator must have particular regard to the effect of the outcome of the arbitration on those final consumers.
(5) The arbitral award is binding on the parties to the arbitration unless or until the parties agree to vary it.
Section 53J: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

Subpart 6—Default/customised price-quality regulation

Subpart 6: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

53K Purpose of default/customised price-quality regulation

The purpose of default/customised price-quality regulation is to provide a relatively low-cost way of setting price-quality paths for suppliers of regulated goods or services, while allowing the opportunity for individual regulated suppliers to have alternative price-quality paths that better meet their particular circumstances.
Section 53K: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

53L Overview of default/customised price-quality regulation

(1) If goods or services are subject to default/customised price-quality regulation,—
- (a) the Commission sets default price-quality paths that apply for a regulatory period, and all regulated suppliers must apply those default price-quality paths; but
- (b) individual suppliers may make a proposal to the Commission for a customised price-quality path; and
- (c) the Commission may set a customised price-quality path for the supplier, and that then applies for a set period instead of a specified default price-quality path.
(2) This section is only a guide.
Section 53L: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

53M Content and timing of price-quality paths

(1) Every price-quality path (whether a default price-quality path or a customised price-quality path under this subpart, or an individual price-quality path under subpart 7) must specify,—
- (a) in relation to prices, either or both of the following with respect to a specified regulatory period:
  - (i) the maximum price or prices that may be charged by a regulated supplier:
  - (ii) the maximum revenues that may be recovered by a regulated supplier; and
- (b) the quality standards that must be met by the regulated supplier; and
- (c) the regulatory period.
(2) A price-quality path may include incentives for an individual supplier to maintain or improve its quality of supply, and those incentives may include (without limitation) any of the following:
- (a) penalties by way of a reduction in the supplier's maximum prices or revenues based on whether, or by what amount, the supplier fails to meet the required quality standards:
- (b) rewards by way of an increase in the supplier's maximum prices or revenue based on whether, or by what amount, the supplier meets or exceeds the required quality standards:
- (c) consumer compensation schemes that set minimum standards of performance and require the supplier to pay prescribed amounts of compensation to consumers if it fails to meet those standards:
- (d) reporting requirements, including special reporting requirements in asset management plans, if the supplier fails to meet the quality standards.
(3) Quality standards may be prescribed in any way the Commission considers appropriate (such as targets, bands, or formulae) and may include (without limitation)—
- (a) responsiveness to consumers; and
- (b) in relation to electricity lines services, reliability of supply, reduction in energy losses, and voltage stability or other technical requirements.
(4) A regulatory period must be 5 years.
(5) However, the Commission may set a shorter period than 5 years if it considers that it would better meet the purposes of this Part, but in any event may not set a term less than 4 years.
(6) Subsections (4) and (5) are subject to section 53W.
(7) No default price-quality path applies to a supplier until the date specified in the relevant section 52P determination, which must be a date at least 4 months after a summary of the determination is published in the Gazette under section 52P(7)(b).
Section 53M: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

53N Monitoring compliance with price-quality paths

For the purpose of monitoring compliance with a price-quality path (whether a default price-quality path or a customised price-quality path under this subpart, or an individual price-quality path under subpart 7), the Commission may, in addition to exercising its powers under section 98, issue a written notice to a regulated supplier requiring it to provide any or all of the following:
- (a) a written statement that states whether or not the supplier has complied with the price-quality path applying to that supplier:
- (b) a report on the written statement referred to in paragraph (a) that is signed by an auditor in accordance with any form specified by the Commission:
- (c) sufficient information to enable the Commission to properly determine whether all applicable price-quality paths have been complied with:
- (d) a certificate, in the form specified by the Commission and signed by at least one director of the supplier, confirming the truth and accuracy of any information provided under this section.
Section 53N: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

Default price-quality path

Heading: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

53O Section 52P determination to set out requirements of default price-quality paths

If default price-quality regulation applies to regulated goods or services, the section 52P determination must set out a default price-quality path that includes—
- (a) the starting prices that apply to the supply of the goods or services during the first regulatory period; and
- (b) the rate or rates of change in prices, relative to the consumer price index, allowed during the first regulatory period; and
- (c) the quality standards that apply during the first regulatory period; and
- (d) the date or dates on which the default price-quality path (or any part of it) takes effect; and
- (e) the annual date by which any proposal for a customised price-quality path must be received; and
- (f) the annual date by which compliance must be demonstrated in accordance with section 53N.
Section 53O: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

53P Resetting starting prices, rates of change, and quality standards

(1) Before the end of the first and every subsequent regulatory period, the Commission must amend the section 52P determination by setting out the starting prices (as referred to in section 53O(a)), rates of change (as referred to in section 53O(b)), and quality standards (as referred to in section 53O(c)) that apply for the following regulatory period.
(2) In resetting starting prices, rates of change, and quality standards, the Commission must consult with interested parties.
(3) The starting prices must be either—
- (a) the prices that applied at the end of the preceding regulatory period; or
- (b) prices, determined by the Commission, that are based on the current and projected profitability of each supplier.
(4) Starting prices set in accordance with subsection (3)(b) must not seek to recover any excessive profits made during any earlier period.
(5) Subject to subsection (8), the Commission must set only one rate of change per type of regulated goods or services (for example, if the rate of change (x) is 1% in a CPI−x path, 1% must be the rate for all goods or services of that type).
(6) The rate of change must be based on the long-run average productivity improvement rate achieved by either or both of suppliers in New Zealand, and suppliers in other comparable countries, of the relevant goods or services, using whatever measures of productivity the Commission considers appropriate.
(7) When setting the rate of change, the Commission may take into account the effects of inflation on the inputs of suppliers of the relevant goods or services.
(8) The Commission may set alternative rates of change for a particular supplier—
- (a) as an alternative, in whole or in part, to the starting prices set under subsection (3)(b) if, in the Commission's opinion, this is necessary or desirable to minimise any undue financial hardship to the supplier or to minimise price shock to consumers; or
- (b) as an incentive (under section 53M(2)) for the supplier to improve its quality of supply.
(9) Any alternative rates of change set under subsection (8) may include step changes.
(10) The Commission may not, for the purposes of this section, use comparative benchmarking on efficiency in order to set starting prices, rates of change, quality standards, or incentives to improve quality of supply.
(11) If starting prices, rates of change, and quality standards have not been set by way of an amendment to the relevant section 52P determination by the end of the regulatory period to which it applies, the starting prices, rates of change, and quality standards that apply at the end of the regulatory period continue to apply until the reset starting prices, rates of change, and quality standards are set.
Section 53P: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

Customised price-quality paths

Heading: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

53Q Supplier may propose customised price-quality path

(1) At any time after a default price-quality path is set by the Commission, a supplier that is (or is likely to be) subject to the default price-quality path may make a proposal to the Commission for a customised price-quality path to apply to that supplier.
(2) Every proposal must—
- (a) comply with the input methodologies referred to in section 52T(1)(d) relating to the process for, and content of, customised price-quality path proposals; and
- (b) be made within the period, or by the annual date, specified for the purpose in the section 52P determination; and
- (c) include the standard application fee for customised price-quality path proposals; and
- (d) apply or adopt all relevant input methodologies.
(3) A supplier may make only 1 proposal during a regulatory period, and may not make a proposal within the 12 months before a default price-quality path is due to be reset.
(4) A supplier that makes a proposal must make it publicly available as soon as practicable after it has been made to the Commission.
Section 53Q: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

53R Effect of making proposal for customised price-quality path

A supplier that makes a proposal to the Commission—
- (a) cannot withdraw the proposal; and
- (b) is bound, for the regulatory period to which it applies, by any customised price-quality path that the Commission subsequently sets for the supplier.
Section 53R: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

53S Preliminary assessment of proposal

(1) Within 40 working days after receiving a proposal, the Commission must determine whether the proposal complies with the input methodologies referred to in section 52T(1)(d) relating to the process for, and content of, customised price-quality path proposals.
(2) If the proposal does not comply with those requirements, the Commission may, at its discretion,—
- (a) discontinue any consideration of the proposal; or
- (b) request the supplier to remedy the deficiencies in the proposal by providing additional information within 40 working days.
(3) If the supplier fails to provide any additional information requested by the Commission under subsection (2)(b), the Commission may discontinue any consideration of the proposal.
(4) If a proposal is discontinued under subsection (2) or (3), section 53Q(3) does not apply and the supplier may make another proposal within the regulatory period (except in the 12 months before the default price-quality path is due to be reset).
Section 53S: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

53T Process and timing for assessing proposal

(1) Once the Commission decides that a proposal complies with the input methodologies relating to the process for, and content of, customised price-quality path proposals, it must—
- (a) give notice that the proposal is under consideration, and how copies of the proposal may be obtained; and
- (b) set a date for interested persons to make submissions on the proposal; and
- (c) have regard to any submissions made by that date.
(2) The Commission must make a determination on a proposal for a customised price-quality path within 150 working days of receiving a complete proposal, subject to sections 53U and 53Z.
Section 53T: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

53U Extension of time frames

The time frames specified in sections 53S and 53T may, with the agreement of the supplier and the Commission, each be extended by a total of up to 30 working days.
Section 53U: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

53V Determination setting customised price-quality path

(1) The Commission may determine any customised price-quality path that the Commission considers appropriate for a supplier that has made a proposal.
(2) To avoid doubt, and without limitation, in determining a customised price-quality path that complies with section 53M the Commission may do any of the following:
- (a) set a price-quality path that is lower, or otherwise less favourable to the regulated supplier, than the default price-quality path that would otherwise apply:
- (b) if it sets a lower or a higher price than applied under the default price-quality path, apply claw-back:
- (c) with the agreement of the supplier, vary an input methodology that would otherwise apply to the supplier.
(3) A customised price-quality path for a supplier is imposed by way of an amendment to the section 52P determination relating to the default/customised price-quality regulation applying to the supplier.
Section 53V: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

53W Term of customised price-quality paths

(1) A customised price-quality path applies for 5 years.
(2) However, the Commission may set a shorter period than 5 years if it considers this would better meet the purpose of this Part, but in any event may not set a term less than 3 years.
Section 53W: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

53X What happens when customised price-quality path ends

(1) When the customised price-quality path of a supplier of goods or services ends, the supplier is subject to the default price-quality path that is generally applicable to other suppliers of those goods or services.
(2) The starting prices that apply at the beginning of the default price-quality path are those that applied at the end of the customised price-quality path unless, at least 4 months before the end of the customised price-quality path, the Commission advises the supplier that different starting prices must apply.
(3) The supplier remains subject to the default price-quality path until—
- (a) the end of the period for which it applies to other suppliers; or
- (b) a new customised price-quality path begins to apply to the supplier.
(4) To avoid doubt, a supplier who is or was subject to a customised price-quality path may apply in accordance with section 53Q for another customised price-quality path.
Section 53X: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

53Y Commission's costs in setting customised price-quality path

(1) The Commission’s costs in setting a customised price-quality path must be met by the person who makes the proposal for a customised price-quality path.
(2) The costs may be recovered in whatever manner the Commission determines.
Section 53Y: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

53Z Prioritisation by Commission

(1) The Commission is not required to consider any more than 4 proposals for a customised price-quality path relating to the same type of regulated goods or services in any one year.
(2) If the Commission receives more than 4 proposals for a customised price-quality path relating to the same type of regulated goods or services in any one year, the Commission—
- (a) may defer the additional proposals to a subsequent year; but
- (b) must prioritise its consideration of the proposals in accordance with the criteria in subsection (3).
(3) The criteria for Commission decisions on priorities are as follows:
- (a) quality and completeness of the initial proposal:
- (b) urgency of any proposed additional investment (compared to historic rates of investment) required to meet consumer requirements on quality:
- (c) materiality of the proposal relative to the size and revenues of the supplier.
Section 53Z: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

53ZA What happens if Commission does not make decision within time frame

(1) This section applies if the Commission does not make a determination within 150 working days of receiving a complete proposal (or within any extended time agreed under section 53U).
(2) If the regulated supplier has not complied, in the Commission’s opinion, with any reasonable exercise by the Commission of its information-gathering powers under section 53ZD or 98, the default price-quality path continues in effect at the close of that period, and the Commission must notify the supplier accordingly.
(3) If the regulated supplier has so complied, the customised proposal made under section 53Q takes effect at the close of that period.
(4) If a customised price-quality path proposal takes effect under subsection (3), the Commission must immediately prepare an amendment to the relevant section 52P determination, setting out the customised price-quality path applying to the supplier.
Section 53ZA: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

What happens to price-quality paths if input methodologies change

Heading: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

53ZB What happens to price-quality paths if input methodologies change

(1) Default or customised price-quality paths may not be reopened within a regulatory period on the grounds of a change in an input methodology, except as provided in subsection (2).
(2) Every default and customised price-quality path must be reset by the Commission in accordance with section 53P if—
- (a) an input methodology changes as a result of an appeal under section 52Z; and
- (b) had the changed methodology applied at the time the price-quality path was set, it would have resulted in a materially different path being set.
(3) When resetting a default or customised price-quality path under subsection (2), the Commission must apply claw-back.
Section 53ZB: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

Subpart 7—Individual price-quality regulation

Subpart 7: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

53ZC Price-quality path for individual businesses

(1) If individual price-quality regulation applies to goods or services supplied by a supplier, the Commission may set the price-quality path for that supplier using any process, and in any way, it thinks fit, but must use the input methodologies that apply to the supply of those goods or services.
(2) The following provisions of subpart 6 apply (with all necessary modifications) where individual price-quality regulation is imposed:
- (a) sections 53M and 53N:
- (b) section 53ZB.
Section 53ZC: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

Subpart 8—Miscellaneous provisions

Subpart 8: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

53ZD Powers of Commission under this Part

For the purpose of carrying out its functions and exercising its powers under this Part, the Commission may, in addition to exercising its powers under section 98, do any of the following:
- (a) consult with any person the Commission considers may assist it:
- (b) investigate any of the following:
  - (i) how effectively and efficiently any supplier of the goods or services is supplying the goods or services:
  - (ii) how any formula, methodology, or price-quality path being considered by the Commission may be applied, or how any formula, methodology, or price-quality provision determined or authorised by the Commission has been applied, in considering proposed prices or quality standards:
  - (iii) how any conditions relating to the quality of the goods or services may be, or are being, fulfilled:
- (c) examine, consider, or investigate any activity, cost, revenue, transfer, asset valuation, circumstance, or event that is occurring or that has occurred during the previous 7 years:
- (d) by notice in writing, require any supplier of the goods or services—
  - (i) to prepare and produce forecasts, forward plans, or other information; and
  - (ii) to apply any methodology specified by the Commission in the preparation of forecasts, forward plans, or other information:
- (e) by notice in writing, require any supplier of the goods or services, or any previous supplier of them that the Commission has reason to believe may have information or documents relevant to the investigation, audit, or inquiry, at the time and place specified in the notice, to do either or both of the following:
  - (i) produce or supply to the Commission documents and information in relation to the goods or services, or the prices or operations of the person in respect of the goods or services:
  - (ii) to answer any questions about any matter that the Commission has reason to believe may be relevant to the investigation, audit, or inquiry:
- (f) by notice in writing, require any supplier of the goods or services, at the time and place specified in the notice, to produce or supply to the Commission an expert opinion from an appropriately qualified person, or from a member of a class of appropriately qualified persons, as determined by the Commission in relation to the matters in paragraph (b), (c), (d), or (e)(i).
Section 53ZD: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

53ZE Levies

(1) Every supplier of regulated goods or services (or prescribed class of suppliers of regulated goods or services) must pay to the Minister the levy determined in accordance with regulations made under subsection (2).
(2) The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations—
- (a) specifying the amount of levies, or method of calculating or ascertaining the amount of levies, on the basis that the estimated costs of performing the Commission's functions, powers, and duties under this Part, and of collecting the levy money, should be met fully out of levies:
- (b) including, or providing for the inclusion, in levies of any shortfall in recovering those actual costs:
- (c) refunding, or providing for refunds of, any over-recovery of those actual costs:
- (d) providing different levies for different classes of suppliers or goods or services:
- (e) specifying the financial year or part financial year to which those levies apply, and applying to that financial year or part financial year and each subsequent financial year until revoked or replaced:
- (f) providing for the payment and collection of those levies:
- (g) for the first financial year to which the levy applies to a supplier or class of suppliers, including in the levy amount or method costs incurred by the Commission in connection with preparing itself to perform, and performing, its functions, powers, and duties under this Part, irrespective of the fact—
  - (i) that the regulations are made and come into effect after that year; or
  - (ii) that the goods or services become regulated after the costs were incurred (for example, costs incurred by the Commission in preparing input methodologies):
- (h) requiring payment of a levy for a financial year or part financial year, irrespective of the fact that the regulations may be made after that financial year has commenced:
- (i) exempting or providing for exemptions from, and providing for waivers of, the whole or any part of the levy for any case or class of cases.
(3) The amount of any unpaid levy is recoverable in any court of competent jurisdiction as a debt due to the Crown.
(4) The Minister must consult with the suppliers of regulated goods or services, or representatives of those suppliers, before making a recommendation for the purposes of subsection (2).
Section 53ZE: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

53ZF Material may be incorporated by reference

Schedule 5 applies if the Commission wishes to incorporate material by reference in any of the following documents:
- (a) a section 52P determination:
- (b) an input methodology.
Section 53ZF: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

53ZG Power to exempt disclosure of commercially sensitive information

(1) The Commission may, on application, exempt any person or class of persons, in respect of any information or class of information that the Commission considers to be commercially sensitive, from any obligation to make that information publicly available as part of the requirements of information disclosure regulation, negotiate/arbitrate regulation, or customised price-quality regulation.
(2) The Commission may grant the exemption on any terms and conditions that it thinks fit.
(3) The exemption must be granted by notice in the Gazette, and takes effect from the date specified in the exemption (which must not be earlier than the date of the Gazette notice).
(4) The Commission may, in like manner, vary or revoke any exemption.
(5) The Commission must keep a list of all current exemptions made by it under this section available for public inspection free of charge during normal office hours of the Commission at the offices of the Commission.
(6) An exemption under this section is not a regulation within the meaning of the Regulations (Disallowance) Act 1989 or the Acts and Regulations Publication Act 1989.
Section 53ZG: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

Subpart 9—Electricity lines services

Subpart 9: inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

54 Overview of how subpart applies

(1) This subpart provides—
- (a) that all suppliers of electricity lines services are subject to information disclosure regulation; and
- (b) that suppliers of electricity lines services that are not consumer-owned are also subject to price-quality regulation; and
- (c) for the transition to the new regime provided for in this Part.
(2) This section is only a guide.
Section 54: substituted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

54A Overview of when subpart applies

(1) This subpart applies on and after 1 April 2009.
(2) However, sections 54D(3) and 54N apply as soon as the rest of this Part comes into force.
(3) This section is only a guide.
Section 54A: inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

54B Interpretation for subpart

In this subpart, unless the context otherwise requires,—
administrative settlement means a deed entered into by the Commission and a supplier of electricity lines services in respect of a breach of a threshold or a breach of a default price-quality path referred to in section 54J
consumer-owned has the meaning given in section 54D
electricity lines services has the meaning given in section 54C
Part 4A means Part 4A of this Act as in force immediately before its repeal by the Commerce Amendment Act 2008
threshold means a threshold set by the Commission under Part 4A for the declaration of control in relation to large electricity lines businesses
Transpower means Transpower New Zealand Limited or any subsidiary of, or successor to, that company.
Section 54B: inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

54C Meaning of electricity lines services

(1) In this subpart, unless the context otherwise requires, electricity lines services means the conveyance of electricity by line in New Zealand.
(2) However, none of the following are electricity lines services:
- (a) conveying electricity solely for the supplier’s own consumption or for the consumption of the supplier’s associates:
- (b) conveying electricity only from a generator to the national grid or from the national grid to a generator:
- (c) conveying electricity (other than via the national grid) only from a generator to a local distribution network or from a local distribution network to a generator:
- (d) conveying electricity by lines that are not connected, directly or indirectly, to the national grid:
- (e) conveying electricity only by a line or lines that are mostly in competition with a line or lines operated by another supplier of electricity lines services that is not an associate of the person, provided that the competition is actual competition and not potential competition:
- (f) conveying electricity if the total circuit length of all of the prescribed voltage electric lines provided by the supplier (or over which electricity is conveyed by the supplier, as the case may be) is less than 25 kilometres:
- (g) conveying electricity if the total amount of electricity conveyed to consumers by the supplier is less than 20 gigawatt hours per annum:
- (h) conveying electricity if the total number of consumers to whom the supplier conveys electricity is less than 500.
(3) The prescribed voltage electric lines, the electricity conveyed, or the number of consumers to whom electricity is conveyed, when measured in relation to a supplier include, for the purposes of subsection (2)(f) to (h), the lines provided by, electricity conveyed by, or number of consumers of, any associate of the supplier.
(4) In this section, unless the context otherwise requires,—
associate has the same meaning as in section 12 of the Electricity Industry Reform Act 1998
consumer has the same meaning as in section 2(1) of the Electricity Act 1992
lines has the same meaning as in section 2(1) of the Electricity Act 1992
national grid has the same meaning as in section 2(1) of the Electricity Act 1992
prescribed voltage electric line means a line that is capable of conveying electricity at a voltage equal to or greater than 3.3 kilovolts.
Section 54C: inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

54D Definition of consumer-owned

(1) In this subpart, unless the context otherwise requires, a supplier is consumer-owned if it is a supplier that meets the following criteria:
- (a) all the control rights and all the equity return rights (within the meaning of section 3 of the Electricity Industry Reform Act 1998) in the supplier are held by 1 or more customer trusts, community trusts, or customer co-operatives; and
- (b) the trustees of each customer trust or community trust, or the directors of each customer co-operative, as the case may be, that is referred to in paragraph (a) are elected solely by the persons who are consumers of the supplier, and at least 90% of the persons who are consumers of the supplier at the time of the election are eligible to vote in those elections; and
- (c) at least 90% of the persons who are consumers of the supplier as at an income distribution resolution date benefit from that income distribution; and
- (d) the supplier has fewer than 150 000 ICPs.
(2) In this section, unless the context otherwise requires,—
community trust, in relation to a supplier, is a trust in respect of which—
- (a) at least 90% of the income beneficiaries comprise persons who are a class or classes identified by reference to their domicile or location or operation within the geographic area or areas of operation of the supplier; and
- (b) at least 90% of its income distributions are paid to those beneficiaries or for purposes related to that geographic area or areas
consumer has the same meaning as in section 2(1) of the Electricity Act 1992, and includes, for the purposes of references to the election of trustees in this section and section 54H, any person who is listed on an electoral roll as a resident of an address that consumes the electricity in question
customer co-operative, in relation to a supplier, means a co-operative company (as defined in section 2(1) of the Co-operative Companies Act 1996) that has the characteristics described in the definition of customer trust in this subsection, applied as if references to trusts were to co-operatives, references to income beneficiaries were to shareholders, and all other necessary modifications were made
customer trust, in relation to a supplier, means a trust in respect of which—
- (a) at least 90% of the income beneficiaries comprise persons who are a class or classes identified by reference to any of—
  - (i) the person's connection to the lines of the supplier:
  - (ii) the person's receipt of electricity from the supplier:
  - (iii) the person's liability for payment for supply of electricity from the supplier:
  - (iv) the person's liability for payment for the connection to the lines of the supplier:
  - (v) the person's liability for payment for line services supplied by the supplier; and
- (b) at least 90% of its income distributions are paid to those beneficiaries
ICP means a point of connection on a local or an embedded network at which a retailer supplies electricity to a consumer
income distribution resolution date means the date that a supplier, or the trust or co-operative that owns a supplier, as the case may be, resolves to make an income distribution to beneficiaries.
(3) As soon as practicable after this subsection comes into force, the Minister must publish a notice in the Gazette stating the names of the suppliers that are consumer-owned as at that date.
(4) The notice in subsection (3) is only for information purposes and has no legal effect.
Section 54D heading: inserted, on 14 October 2008, pursuant to section 4 of the Commerce Amendment Act 2008 (2008 No 70).
Section 54D(1): inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
Section 54D(2): inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
Section 54D(3): inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).
Section 54D(4): inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

Imposition of regulation under this Part

Heading: inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

54E Electricity lines services declared to be regulated

Electricity lines services are regulated under this Part.
Section 54E: inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

54F All electricity lines services are subject to information disclosure regulation

All electricity lines services are subject to information disclosure regulation under this Part.
Section 54F: inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

54G Certain electricity lines services are also subject to default/customised price-quality regulation

(1) All electricity lines services (other than those supplied by Transpower) are subject to default/customised price-quality regulation under this Part unless they are exempt.
(2) All electricity lines services that are supplied by a supplier that is consumer-owned are exempt (unless an Order in Council has been made in respect of the service under section 54H).
Section 54G: inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

54H How exempt status can be lost and default/customised price-quality regulation can be applied to consumer-owned suppliers

(1) Electricity lines services that are supplied by a supplier that is consumer-owned cease to be exempt for the purpose of section 54G (and therefore become subject to default/customised price-quality regulation under this Part) if the Governor-General, by Order in Council, declares that this section applies.
(2) The Minister may make a recommendation only if the Minister is satisfied that either—
- (a) the Commission has advised the Minister that a supplier has ceased to be consumer-owned within the meaning of section 54D; or
- (b) the Commission has recommended to the Minister that the purpose of this Part would be better met if price-quality regulation were imposed on the supplier under this Part.
(3) The Commission may make a recommendation under subsection (2)(b) only following consideration of a petition made by 1 or more of the following:
- (a) 15% of the persons who are residential consumers of the supplier as at the date of the petition who are eligible to vote in elections for trustees of the customer trust or community trust, or for directors of the customer co-operative:
- (b) 20% of the persons who are residential consumers of the supplier as at that date who are not eligible to vote in elections for trustees of the customer trust or community trust, or for directors of the customer co-operative:
- (c) 25% of the persons who are non-residential consumers (either by number or by consumption of that class of consumer) of the supplier as at that date.
(4) If exact figures are not available as to the number of persons in a class referred to in subsection (3), the Commission may rely on any estimate that the Commission considers to be a reasonable estimate.
(5) Petition means a petition to the Commission seeking the application of price-quality regulation to all or any of the electricity lines services of the relevant supplier, and that records the signatures of the signatories.
(6) The Governor-General may, on the recommendation of the Minister, make an Order in Council in accordance with this section.
Section 54H: inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

54I Commission must make section 52P determination specifying how subpart applies

(1) The section 52P determinations that specify how information disclosure regulation applies to each supplier of electricity lines services must be made as soon as practicable after 1 April 2009.
(2) The section 52P determinations that specify how default/customised price-quality regulation applies to each supplier of electricity lines services that is subject to that form of regulation as at 1 April 2009 are made as set out in section 54J.
(3) The section 52P determinations that specify how default/customised price-quality regulation applies to each supplier of electricity lines services that becomes subject to that form of regulation as a result of an Order in Council made under section 54H must be made as soon as practicable after the order comes into force.
Section 54I: inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

54J Section 52P determinations setting out default price-quality paths applying from 1 April 2009

(1) This section applies in respect of suppliers of electricity lines services that are subject to default/customised price-quality regulation on and after 1 April 2009.
(2) On and after 1 April 2009, the thresholds for large electricity lines businesses that expire on 31 March 2009 are deemed to be section 52P determinations that—
- (a) apply those thresholds to each supplier as if the thresholds were default price-quality paths; and
- (b) state that the regulatory period for each supplier ends on 31 March 2010; and
- (c) comply with sections 52P and 53O; and
- (d) were notified in the Gazette under section 52P(7)(b) at least 4 months before 1 April 2009.
(3) However, a breach of a default price-quality path before the close of 31 March 2010 must be dealt with in accordance with section 54N and not under Part 6.
(4) Nothing in this section affects sections 54N and 54O.
Section 54J: inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

54K Section 52P determinations setting out default price-quality paths applying from 1 April 2010

(1) Before 1 April 2010, the Commission must reset the default price-quality paths for each supplier that apply on and after that date, using the process set out in section 53P.
(2) The Commission may reset the default price-quality paths even if all or any of the relevant input methodologies have not been determined.
(3) If an input methodology is published after 1 April 2010 and if, had that methodology applied at the time the default price-quality paths were reset as required by subsection (1), it would have resulted in a materially different path being set, then the Commission may reset the default price-quality paths in accordance with section 53P and may apply claw-back, despite section 53ZB(1).
(4) However, the Commission may not exercise its powers in subsection (3) later than 9 months after the date of publication of the input methodology.
(5) Nothing in this section affects sections 54N and 54O.
Section 54K: inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

Transitional arrangements

Heading: inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

54L Administrative settlements made before 1 April 2009 (other than with Transpower)

(1) This section applies to every administrative settlement accepted by the Commission before 1 April 2009 in respect of a breach of a threshold other than an administrative settlement with Transpower.
(2) The enactment of the Commerce Amendment Act 2008 does not limit or affect an administrative settlement to which this section applies, except as provided in this section.
(3) Any breach of the administrative settlement must be dealt with in accordance with the terms of the settlement.
(4) The expiry of the administrative settlement must be treated as if it were the end of a customised price-quality path, and section 53X applies accordingly (unless the supplier concerned would not otherwise be subject to default/customised price-quality regulation after the expiry of the settlement).
Section 54L: inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

54M Administrative settlements with Transpower made before 1 April 2009

(1) This section applies to any administrative settlement with Transpower that is accepted by the Commission before 1 April 2009 in respect of a breach of a threshold.
(2) Any breach of an administrative settlement with Transpower may be dealt with under Part 6 as if it were a breach of a customised price-quality path, despite anything in the terms of the settlement.
(3) Before the expiry of the administrative settlement, the Commission must recommend to the Minister that an Order in Council be made under section 52N declaring that either—
- (a) Transpower is subject to default/customised price-quality regulation under subpart 6; or
- (b) Transpower is subject to individual price-quality path regulation under subpart 7.
(4) Subpart 2, except the provisions relating to inquiries, applies to the process for imposing that regulation and making the section 52P determination.
(5) If an Order in Council declares that Transpower is subject to default/customised price-quality regulation, the section 52P determination must set the price-quality path that applies for the regulatory period commencing with the date on which the Order in Council comes into force, using the process under section 53P for resetting default price-quality paths.
(6) The only requirements that may be included in a section 52P determination in respect of the quality standards of Transpower are requirements that give effect to quality standards set by the Electricity Commission.
Section 54M: inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

54N Breaches of thresholds and default price-quality paths before 1 April 2010

(1) This section applies to—
- (a) any breach of a threshold that occurred before the close of 31 March 2007; and
- (b) any breach of a threshold that occurs on or after 1 April 2007 and before the close of 31 March 2009; and
- (c) any breach of a default price-quality path that occurs on or after 1 April 2009 and before the close of 31 March 2010.
(2) The Commission may not publish a notice of intention to declare control under Part 4A,—
- (a) in respect of a breach referred to in subsection (1)(a), at any time after 1 October 2008; and
- (b) in respect of a breach referred to in subsection (1)(b) or (c), at any time after the expiry of 12 months after the end of the financial year in which the breach occurs.
(3) The Commission may, at any time before the expiry of 12 months after the date on which the Commission publishes a notice of intention to declare control under subsection (2) in respect of the breach,—
- (a) make a control declaration under Part 4A; or
- (b) enter into an administrative settlement in respect of the breach under Part 4A.
(4) The Commission may do anything under subsections (2) and (3) as if the Commerce Amendment Act 2008 had not been enacted, except that the purpose in section 52A must be taken to be the purpose of Part 4A.
(5) To avoid doubt, the Commission may, but need not, apply input methodologies in acting under subsection (3).
(6) Despite anything in Part 4A, any control imposed, or administrative settlement entered into, under Part 4A in accordance with subsection (3) is subject to the following:
- (a) the term of control, or of the settlement, must be not more than 5 years:
- (b) the expiry of the term must be treated as if it were the expiry of a customised price-quality path, and section 53X applies accordingly (unless the supplier concerned would not otherwise be subject to default/customised price-quality regulation after the expiry of the term).
Section 54N: inserted, on 14 October 2008, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

54O Breaches of control imposed, or administrative settlements entered into, after 1 April 2009

(1) If a supplier breaches control imposed, or an administrative settlement entered into, in accordance with section 54N(3), the breach may be dealt with under Part 6 as if it were a breach of a customised price-quality path, despite anything in the terms of the control or settlement.
(2) To avoid doubt, this section applies whether or not the supplier is, after 1 April 2009, subject to default/customised price-quality regulation.
Section 54O: inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

54P Proposals for customised price-quality paths

(1) A supplier of electricity lines services may not propose a customised price-quality path until a section 52P determination setting out the requirements and criteria for proposals for customised price-quality paths (as required by section 52T(1)(d)) is made.
(2) However, in accordance with section 53V(2), the Commission may apply claw-back when setting any customised price-quality path.
Section 54P: inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

Energy efficiency

Heading: inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

54Q Energy efficiency

The Commission must promote incentives, and must avoid imposing disincentives, for suppliers of electricity lines services to invest in energy efficiency and demand side management, and to reduce energy losses, when applying this Part in relation to electricity lines services.
Section 54Q: inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

Jurisdiction issues and interface with Electricity Commission and Electricity Act 1992

Heading: inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

54R Transfer of jurisdiction relating to electricity lines services supplied by Transpower

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 of the electricity lines services supplied by Transpower.
Section 54R: inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

54S Effect of transfer of jurisdiction

(1) If an Order in Council is made under section 54R,—
- (a) the Electricity Commission, and not the Commerce Commission, has all the powers, duties, and functions under this Part in respect of the electricity lines services in respect of which the jurisdiction has been transferred; and
- (b) the Electricity Commission must exercise or perform those powers, duties, and functions, and be treated in that exercise or performance, as if it were an independent Crown entity; and
- (c) the Electricity Commission must apply any input methodologies determined by the Commerce Commission for services regulated under this subpart (except to the extent that the Electricity Commission considers that modifications are required to meet the particular circumstances of Transpower).
(2) Without limiting subsection (1)(b), if an Order in Council is made under section 54R, the Minister of Energy may not—
- (a) set objectives and outcomes under section 172ZK of the Electricity Act 1992 on any matter relating to the jurisdiction under this Part; or
- (b) direct the Electricity Commission to give effect to or have regard to any government policy that relates to the jurisdiction under this Part; or
- (c) direct the Electricity Commission to amend any provision that is included in its statement of intent that relates to the jurisdiction under this Part; or
- (d) remove any member of the Electricity Commission for a reason related to the exercise of the jurisdiction under this Part.
(3) The Order in Council under section 54R may contain any other provisions that are necessary or desirable to ensure that the Electricity Commission exercises or performs the powers, duties, and functions under this Part, and is treated in that exercise or performance, as if it were an independent Crown entity.
Section 54S: inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

54T Procedure before jurisdiction order can be made

The Minister of Energy may make a recommendation for the purpose of section 54R only if—
- (a) he or she has consulted with Transpower, users of the national grid, 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 each of them; and
- (c) he or she is satisfied that the transfer of jurisdiction that would occur would result in—
  - (i) the purpose of this Part being achieved more efficiently and effectively; and
  - (ii) the purposes of the Electricity Act 1992, as it applies to Transpower, being achieved more efficiently and effectively; and
  - (iii) lower compliance costs for Transpower.
Section 54T: inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

54U Levies during transition in jurisdiction

(1) The costs of the Commerce Commission during any period after any transfer of jurisdiction under this Part may continue to be met via levy regulations under section 53ZE.
(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.
Section 54U: inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

54V Impact of certain decisions made under Electricity Act 1992

(1) The Electricity Commission must advise the Commerce Commission as soon as practicable after making any recommendation for an electricity governance regulation or rule under subpart 2 of Part 14 of the Electricity Act 1992, or after making any decision under electricity governance regulations or rules, or after issuing any guidelines, that is or are likely to be relevant to the powers, duties, or functions of the Commerce Commission under this Part.
(2) The Commerce Commission must take into account, before exercising or performing any of its powers, duties, or functions under this Part,—
- (a) any electricity governance regulation or rule, or decision made under them, that relates to or affects the quality standards or pricing methodologies applicable to Transpower:
- (b) any electricity governance regulation or rule, or decision made under them, that relates to or affects the pricing methodologies applicable to any other line owner:
- (c) any guidelines of which it receives advice under subsection (1) that are likely to be relevant to the exercise or performance of the powers, duties, or functions of the Commerce Commission under this Part:
- (d) the levy payable by Transpower or any other line owner under section 172ZC of the Electricity Act 1992:
- (e) the continuance of supply obligations imposed by section 62 of the Electricity Act 1992.
(3) The Commerce Commission must, if asked by the Electricity Commission to do so, reconsider a section 52P determination and, to the extent that the Commerce Commission considers it necessary or desirable to do so, amend the determination, to take account of any matter referred to in subsection (2).
Section 54V: inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

Savings provisions

Heading: inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

54W Savings provision relating to existing information disclosure requirements

Any information disclosure requirements published by the Commission under subpart 3 of Part 4A before 1 April 2009 continue to apply to each supplier of electricity lines services in respect of every financial year that precedes the first financial year to which a determination made by the Commission under section 54I(1) applies to that supplier.
Section 54W: inserted, on 1 April 2009, by section 4 of the Commerce Amendment Act 2008 (2008 No 70).

54X Savings provision for existing levy regulations for electricity lines businesses

(1) Any regulations made pursuant to section 57ZK before the repeal of Part 4A continue to apply to each person who is a large line owner in respect of every financial year that precedes the first financial year to which levy regulations made under section 53ZE apply to that supplier.
(2) Subsection (1) applies as if—
- (a) references in those regulations to the Commission's costs included references to the costs of exercising and performing the Commission's powers, duties, and functions under this Part, and enforcing the obligations under this Part, in respect of those persons, and with all other necessary modifications; and

New Zealand Legislation: Acts

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Commerce Act 1986 No 5 (as at 01 April 2009), Public Act

Commerce Act 1986

Note

Contents

1 Short Title and commencement

1A Purpose

2 Interpretation

3 Certain terms defined in relation to competition

3A Commission to consider efficiency

4 Application of Act to conduct outside New Zealand

5 Application of Act to the Crown

6 Application of Act to Crown corporations

6A Special provisions relating to application of Act to the Crown in right of Australia and to Australian Crown corporations

6B Crown and Crown corporations not immune from jurisdiction in relation to certain provisions of Trade Practices Act 1974

6C Application of Evidence Amendment Act 1980

7 Law relating to restraint of trade and breaches of confidence not affected

Part 1The Commerce Commission

8 Establishment of Commission

8A Application of Crown Entities Act 2004

9 Membership of Commission

10 Terms and conditions of appointment

11 Associate members

12 Chairperson and deputy chairperson

13 Termination of appointment of members

14 Disclosure of financial interests

15 Meetings of Commission

16 chairperson may direct Commission to sit in Divisions

17 Assent to determination

18 Officers and employees

18A Personnel policy

18B Equal employment opportunities

18C Choice of procedure

18D Superannuation and retiring allowances

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

20 Funds of Commission

21 Bank accounts

22 Crown entity

23 Investment of money

24 Exemption from income tax

25 Functions of Commission in relation to dissemination of information

26 Commission to have regard to economic policies of Government

Part 2Restrictive trade practices

Practices substantially lessening competition

27 Contracts, arrangements, or understandings substantially lessening competition prohibited

28 Covenants substantially lessening competition prohibited

29 Contracts, arrangements, or understandings containing exclusionary provisions prohibited

Price fixing

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

31 Joint venture pricing exempt from application of section 30

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

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

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

Practices substantially lessening competition conditional upon authorisation

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

Taking advantage of market power

36 Taking advantage of market power

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

36B Purposes may be inferred

Resale price maintenance

37 Resale price maintenance by suppliers prohibited

38 Resale price maintenance by others prohibited

39 Recommended prices

40 Withholding the supply of goods

41 Preventing the supply of goods

42 Special evidentiary provisions in respect of certain resale price maintenance practices

43 Statutory exceptions

44 Other exceptions

45 Exceptions in relation to intellectual property rights

46 Saving in respect of business acquisitions

Part 3Business acquisitions

47 Certain acquisitions prohibited

48 Bare transfer of market dominance excluded

49 Application to building societies

50 Certain merger or takeover proposals require clearance or authorisation

51 Contracts subject to condition of clearance or authorisation

Part 4Regulated goods or services

Subpart 1—Preliminary provisions

52 Overview of Part

Part 1
The Commerce Commission

Part 2
Restrictive trade practices

Part 3
Business acquisitions

Part 4
Regulated goods or services