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Digest No. 1758

Commerce Commission (International Co-operation and Fees) Bill 2008

Date of Introduction: 09 September 2008
Portfolio: Commerce
Select Committee: As at 31 March 2010, 1st Reading not held.
Published: 31 March 2010byJohn McSoriley BA LL.B, Barrister,Legislative AnalystP: (04) 817-9626 (Ext. 9626)F: (04) 817-1250 Caution: This Digest was prepared to assist consideration of the Bill by members of Parliament. It has no official status.Although every effort has been made to ensure accuracy, it should not be taken as a complete or authoritative guide to the Bill. Other sources should be consulted to determine the subsequent official status of the Bill.

Purpose

The main aim of this Bill is to facilitate increased co-operation between the Commerce Commission (the Commission) and other overseas competition and consumer regulators (particularly the Australian Competition and Consumer Commission (the ACCC)). To do this, the Bill amends the Commerce Act 1986, the Credit Contracts and Consumer Finance Act 2003, and the Fair Trading Act 1986 to allow the Commission to use its statutory powers to provide investigative assistance to overseas regulators and to provide, subject to conditions, compulsorily acquired information to them

The Bill also makes amendments to the regulation-making powers in the Commerce Act 1986 to require the Commission to provide refunds, where appropriate, and to provide for fee exemptions for particular classes of persons [1]   .

Background

Co-operation with overseas regulators

The Bill allows the Commission to search a place, under warrant, in order to find out whether a person has been or is contravening the Commerce Act 1986 including certain foreign enactments identified in a co-operation arrangement (Part 1, Clause 5, amending Section 98A of the Commerce Act 1986; Clause 6, inserting New Sections 99B to 99O into that Act; see particularly New Section 99E; cf. New Section 99H (providing compulsorily acquired information and investigative assistance); New Section 99C, definition of "compulsorily acquired information).

Conditions

The Bill provides that the Commission may impose conditions on the provision of compulsorily acquired information or investigative assistance, including maintaining, as far as possible, the provisions of Section 106(4) and (5) of the Commerce Act 1986 if information is provided to an overseas regulator.

Under Section 106(4), a person is not excused from complying with certain requirements on the grounds that to do so might tend to incriminate the person. However, under Section 106(5), statements made by a person in answer to a question put by or before the Commission may not be used in criminal proceedings or certain civil proceedings. The protection of such statements is to be carried forward by requiring that the statements cannot be provided to overseas regulators unless the regulator gives a written undertaking that they will not be used by the regulator against the maker of the statement in criminal proceedings or proceedings for civil pecuniary penalties, nor (to the extent that the regulator can ensure this) be used by any other person in such proceedings (Part 1, Clause 6, inserting New Sections 99B to 99O into that Act, particularly New section 99I).

Privilege

The Bill provides that if the Commission has a privilege in respect of certain communications or information the privilege is not waived merely because the privileged communication or information is provided to an overseas regulator. If a privileged communication or information is received from an overseas regulator it will be treated as subject to an analogous privilege in New Zealand (Part 1, Clause 5, Clause 6, inserting New Sections 99B to 99O into that Act, particularly New section 99O).

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  1. Commerce Commission (International Co-operation and Fees) Bill, 2008 No 293-1, Explanatory note, General policy statement, p. 1.   [back]