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22/08/2025·3 min read
Government announces first wave of Commerce Act reforms
When opening last week’s Competition Law and Policy Institute of New Zealand 2025 Workshop, Minister of Commerce and Consumer Affairs Scott Simpson confirmed the first reforms to the Commerce Act that are on their way later in 2026, following the public submissions process that took place earlier this year.[1]
In this article, we discuss the key reforms announced last week, and consider what else is still to come.
Greater certainty for beneficial collaboration between competitors
If competitors are considering collaborating with each other (for example, by entering into a joint venture), they currently have the ability to voluntarily apply to the Commerce Commission (Commission) for:
- Clearance, on the basis that proposed collaboration does not raise competition issues, and is reasonably necessary (ie the parties could not achieve the same purpose without the collaboration); and/or
- Authorisation, on the basis that the proposed collaboration raises competition issues, but these issues are outweighed by the public benefits of the collaboration.
This clearance or authorisation framework for collaborations has proved difficult to navigate, and therefore, has been rarely engaged. The Government’s view is that these difficulties are potentially hindering beneficial collaborations, due to the perceived high bar for meeting the required standards for clearance or authorisation.
To address these concerns, the Government has announced the following amendments to the current framework:
- A statutory notification regime, initially limited to resale price maintenance and small business collective bargaining, which will allow firms to notify the Commission of collaborative conduct and proceed unless the Commission objects - this is put forward as a faster, cheaper alternative to authorisation;
- A streamlined clearance process for collaborative activities, limiting the scope of the Commission’s assessment of a collaborative activity clearance application to the purpose and necessity of any cartel conduct, rather than a full competition assessment (only if the applicant requests this);
- Class exemption powers, allowing classes of conduct to be exempt from the Commerce Act, with a focus on low-risk and/or beneficial collaborations;
- Application fee waivers, giving the Commission discretion to waive application fees (currently $3,680 for clearance, and $36,800 for authorisation) where appropriate - encouraging smaller businesses to give greater consideration to potentially beneficial collaborations; and
- Accounting for evolving collaboration, by allowing participants to come and go following clearance or authorisation without the requirement to re-apply for clearance or authorisation.
While the details of these proposals still need to be fleshed out, our view is that these should provide for greater certainty and more timely outcomes for competitors considering potential collaborations.
Official Information Act exemptions
In its investigations, the Commission relies on market participants providing information on a mostly voluntary basis. Given the frequency in recent years of interested parties making Official Information Act (OIA) requests for information relating to the Commission’s investigations, market participants have naturally been unwilling to provide confidential information for fear of release.
To address this increasing reluctance, the Government has proposed a 10 year exemption from the OIA for confidential information provided to the Commission, as well as giving the Commission greater ability to impose limits on the disclosure of particular information on a case-by-case basis. In addition, protections against retaliatory conduct following disclosure of information have been proposed, following a similar structure to existing whistleblower legislation.
The Government’s hope is that this will give market participants the ability and incentive to engage more openly and confidently with the Commission, allowing the Commission to gather better and more material evidence when carrying out its market enquiries.
This would be a welcome change since the use of multiple OIA requests has been growing in recent years, and has been taking up a large amount of internal Commission time as well responding to such requests.
Still to come
Potential changes to the merger regime, which formed a large part of the Government’s discussion paper, were perhaps the most eagerly anticipated announcements. However, Minister Simpson informed the audience that no final decision has been reached yet on the merger regime, with an announcement due “over the coming weeks”. Refer to our article for more details on the potential reforms in this space.
This announcement will also include a decision as to whether the Government grants the Commission discretionary power to establish industry codes, following the introduction of the Grocery Supply Code in 2023 - along with any other proposed amendments.
The Commerce Commission governance review has been completed
Alongside the Commerce Act review, the Government commissioned a review by ex-Commission Chair Dame Paula Rebstock into the governance and effectiveness of the Commission. We understand that the review has been completed, and is currently before Cabinet, with an announcement again due “in the coming weeks”.
We will keep you updated on all of the above,
Special thanks to Henry King for his assistance in preparing this article.
Contacts
Partner
James Craig
Partner
