Review of section 36 of the Commerce Act and other matters

Submissions closed: 01 April 2019, 9am

The Ministry of Business, Innovation and Employment (MBIE) is proposing changes to New Zealand’s law relating to the misuse of market power (section 36 of the Commerce Act), along with other minor changes, and is seeking your feedback.

About the consultation

Competitive markets are important for the benefit of consumers and businesses. The Commerce Act sets the rules of the game to ensure that businesses can compete on their merits. Section 36 of the Commerce Act seeks to prevent incumbent firms with market power from abusing that power to suppress competition.

The courts have interpreted section 36 in such a way that it has tilted the playing field in favour of incumbent firms and distorted competition. Section 36 is difficult to enforce, and it may not be capturing a wide enough range of anti-competitive conduct.

The Minister of Commerce and Consumer Affairs has released a discussion document for public consultation.

The discussion document sets out proposed changes to section 36 to bring New Zealand’s law in line with Australia and other developed economies. The discussion document also proposes:

  • repealing sections of the Commerce Act that shield some intellectual property arrangements from competition law
  • making technical changes to the treatment of covenants under the Act

More information

You can find more information in the Cabinet Paper.

Cabinet Paper: Release of Discussion Document: Review of Section 36 of the Commerce Act and Other Matters [PDF, 153 KB]