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The initial set of Commerce Act reforms, announced by Commerce and Consumer Affairs Minister Scott Simpson on Thursday, focus on encouraging beneficial collaboration and strengthening confidentiality protections.
The Government launched its Commerce Act review in December last year, aimed at modernising New Zealand’s competition law framework, with a particular focus on the merger settings. The Minister indicated that further decisions on the merger regime, potential new industry codes, and other changes will be announced in the coming weeks.
1. Encouraging beneficial collaboration
As part of the initial set of reforms, the Minister announced a new framework to make collaboration easier, involving:
- a statutory notification regime (initially limited to resale price maintenance and small business collective bargaining) allowing firms to notify the Commission of collaborative conduct and proceed unless the Commission objects,
- class exemption powers to allow the Commission to exempt categories of conduct that are low-risk or clearly beneficial,
- Commerce Commission discretion to waive or reduce application fees,
- a streamlined process for collaborative activity clearance allowing applicants to ask the Commission to assess the purpose and necessity of cartel provisions, without assessing broader competition impacts, and
- allowing clearance and authorisation for arrangements with changing participants over time, to better supporting multi-party initiatives.
2. Confidentiality protections
The Minister also announced reforms aimed at addressing reluctance by businesses and individuals to share confidential information with the Commission, due to fears that information could be released under the Official Information Act (OIA). The reforms:
- provide a 10-year OIA exemption for confidential information supplied to the Commission,
- extend the Commission’s ability to issue confidentiality orders over classes of information or documents, and
- protect individuals who provide information to the Commission from retaliation.
An update on the Commerce Commission governance review
The Government is also reviewing the governance and effectiveness of the Commerce Commission. The Minister said that Cabinet decisions regarding that review will be announced in the coming weeks. The review, led by Dame Paula Rebstock is focused on:
- the structure and composition of the Commission board,
- decision-making and transparency, and
- the skills and expertise needed to regulate increasingly complex markets.
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