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The amendments relating to confidential information in the Commerce (Promoting Competition and Other Matters) Amendment Bill (Bill) have the potential to reduce the Commerce Commission’s (Commission) accountability to the public and those under review.
They will arguably contribute more than any other aspect of the Bill to the trend we identified earlier in this series – more latitude to the Commission and less accountability in the execution of its role.
The issue is that the Commission will decide who has access to what information on a case-by-case basis, with a greater bias towards withholding (versus the current bias towards disclosure). The new approach could reduce opportunities to scrutinise Commission assessments, which over time could lead to less robust and less accurate decisions.
That is not to criticise the Commission. But stakeholders must have confidence in the Commission’s decision-making processes, and it is essential the Commission’s work is transparent and able to be scrutinised. If the Commission holds more information under wraps, stakeholders will have less chance to test Commission theories and findings because they won’t have access to the material the Commission relies on in support.
The closing date for submissions on the Bill is Wednesday, 4 February 2026. This is our fourth commentary on the Bill. We have one more to follow. The others are available here, here and here.
Proposed amendments
- Confidential information supplied to the Commission will be excluded from disclosure under the Official Information Act (OIA) for up to ten years (subject to limited exceptions), with an option for further extension where release may be detrimental to the provider or the subject of the information.
- The Commission will have the authority to issue confidentiality orders covering categories of information or documents, to set terms and conditions for their release, and to maintain such orders for periods of up to ten years. A person who contravenes this order commits an offence and is liable to significant fines (for an individual up to $100,000, in any other case up to $300,000).
- Individuals providing information to the Commission will be protected by anti-retaliation provisions, modelled on whistleblower legislation.
Our view
The introduction of whistleblower-style protections is a positive step and will strengthen the Commission’s information gathering efforts. The basis for these changes is said to be recent merger cases in which “suppliers and competitors refused to cooperate due to fear of exposure and retaliation”.
However, the changes go much further than whistleblower protection. They allow the Commission to withhold from parties facing investigation, or otherwise subject to Commission processes (e.g. merger clearance), information or evidence on which the Commission proposes to rely in exercising its powers.
Not only does this prevent parties being able to test the evidence against them, it cuts against fundamental common law principles of fairness and natural justice. While the Commission is an effective regulator, procedural fairness is critical to the robustness of its decisions and fairness to its stakeholders.
On the ten-year default prohibition on the disclosure of confidential information, the protection for parties who may have been impugned is that the Commission may release the information where it is satisfied that the recipient has a “proper interest”.
But there is no definition of “proper interest” and no requirement for the Commission to provide any particular information to parties (or their counsel) – even those directly involved in an investigation. Instead, it will depend on how the Commission interprets and applies “proper interest” in practice and in particular cases.
So, we could see the Commission making decisions based on information that is not subject to sufficient scrutiny, which has the potential to reduce the reliability of outcomes. And the Commission’s expanded discretion to issue confidentiality orders over classes of information, and to set terms and conditions, without clear criteria or checks on discretion, could further limit transparency.
In our experience, the Commission already withholds a lot of information from parties, and the public, in its processes. The Official Information Act allows the Commission to protect from disclosure information that is, for example, genuinely commercially sensitive.
It is fundamental that evidence put before the Commission is tested adequately, while appropriate protections are in place to deter misuse. The fear of “retaliation” risk can be addressed with whistleblower-type protections and does not justify a much wider erosion of process protections. It is particularly striking that the Commission will be uniquely carved out from the Official Information Act in a way that almost no other agency is.
Our thanks to Sophie Beasley for her assistance preparing this update.
