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

Indeed it is an honour that I get to speak on this bill, the Commerce Commission (International Co-operation, and Fees) Bill. This is a very significant piece of legislation. I have to say to the members of the Commerce Commission who have heard me criticise them over the dairy industry legislation that perhaps I should apologise and say that without them, without a robust Commerce Commission in this country, we would be a lot worse off. I encourage the Minister for Primary Industries in whatever he does following through with this bill to give the commission the resources and to give it the proper legislation to ensure that we have open, true competition in this country, but in a way that actually enhances our ability to develop our economy and all the opportunities in it.

I will not take too long, because I know that I have colleagues who are just busting to get up and speak about this piece of legislation, and they will probably speak with a lot more wisdom and knowledge. But I do understand the need to have robust laws. At times in this country we have been called the Wild West of the Western World. We have had lax laws that have not prevented rorts, and have not secured and protected consumers or other people involved in this. This bill, of course, deals with fees and cooperation, and we like to see that operate on an international basis, as this bill will do. So I will now hand over to the next speaker, and say that we welcome the passage of this bill.

It is fair to say that Part 2 of this bill, the Commerce Commission (International Co-operation, and Fees) Bill, is not very long. The major part of this debate, I will concede to the chair, has already occurred, in respect of Part 1. But, adding to the erudite comments of my colleague Damien O’Connor, I am interested to inquire of the Minister for Primary Industries what it means in Part 2 where we amend the regulations, in respect of fee setting, to prescribe a class or classes of persons who are exempt from the requirement to pay any fee for an application under section 58, or for a notice under section 66(1) or 67(1). I see in the commentary from the Commerce Committee—and I did not have the advantage of sitting on this select committee—that consideration was given to “removing the regulation-making power to prescribe a class or classes of persons who would be exempt from the requirement to pay any fee.” But despite that consideration being given to removing the regulation-making power, it was kept. The reason seems to be that the provision was targeted to the small to medium sized enterprises sector, and the committee decided it was important to retain it.

So my question for the Minister in the chair, the Hon Craig Foss, is about the relationship between Part 1 and this part, this regulation—the amendments to section 108, which is amended by inserting the two paragraphs referred to in clause 13 of the bill before us. What is the relationship between those changes and Part 1 of the bill, which has already been discussed at some length in this House? Do these fees all relate to instances where, now, the Commerce Commission is able to cooperate with commerce commissions in international jurisdictions, whereas previously they could not cooperate?

I think that those who were here for earlier parts of the debate would recall that the first part of the bill relates to empowering the Commerce Commission to cooperate with international inquiries that might be going on as to price fixing, or cooperative agreements, or whether there are competition concerns arising in particular industries. Until now the Commerce Commission has lacked the jurisdiction to do that, because it is a body of statutory jurisdiction and therefore can only do what the statue allows it to do. Until the bill amends that, the commission has not had the power to cooperate in those international inquiries, but through this bill it obtains that power. My question is whether these Part 2 changes in respect of fees are dealing only with fees that arise as a consequence of the new international cooperation that the Commerce Commission will be able to participate in. I do not know the answer to that, and that is why I am asking the Minister to clarify that point.

In terms of the period within which it is envisaged that any fee could be refunded, I am not clear as to whether there is any limit on the prescribed period, because the bill says “requiring the Commission to refund, within a prescribed time,”. Does that “prescribed time” get set out in regulations, or is there some limit to that set out in the principal Act, the Commerce Act 1986? I am not clear from my reading of this, and it is, of course, some time since this was considered by the Commerce Committee.

I note that the membership of the select committee included a number of former members of this House who are no longer with us: John Boscawen, Hilary Calvert, and the Hon Sir Roger Douglas. You know, none of these people are now with us, and, indeed, the only ACT member of Parliament left with us is the Hon John Banks.

💬 Hon Clayton Cosgrove: Who? The walking dead?

Yes, that is the man. His experience with international cooperation and fees includes dealing with multinationals, soliciting donations, receiving them in an envelope given to him, but then denying that he had any knowledge that there was a donation, and filing expense returns with the Electoral Commission saying that he received no donations except for anonymous ones.

I want to take just a brief call. I am surprised that the Minister in the chair, the Minister of Commerce, after that erudite dissertation from David Parker, who is, after all, a member of the legal profession, did not choose to address the questions Mr Parker put to him in respect of fees. Could I take the opportunity, perhaps, to get an indication from the Minister, given that the Commerce (International Co-operation, and Fees) Amendment Bill is a serious bill, as to whether he will, presumably before a closure motion is upon us, actually answer those questions.

💬 Hon Craig Foss: In the next part.

The Minister says “In the next part.” Well, I think it might be appropriate, Minister, that these questions are addressed in their relevant part, because it aids, obviously, the debate if the questions are answered in an appropriate way. We can move on if they are not. Then we may have further questions, because this bill also does support other legislation in terms of preserving the integrity and credibility of business, both domestically and internationally.

We know, of course, as we address Part 2 in respect of fees, that this bill was originally introduced—and then the baton was passed—by the then Labour Cabinet Minister and Minister of Commerce Lianne Dalziel, to be followed by Simon Power, and that it is somewhat unfinished business that this Minister has taken on. It would be fair to say that there is, like with most of these bills, bipartisan support in respect of the bill—and I note that the chair of the Commerce Committee is nodding—and it was dealt with in a good-natured way. But I say this: I think the Minister should address those technical questions. I would hope that he is not going to wait till the end—till speakers have had their go—and then sort of rattle through a whole lot of answers without giving subsequent speakers the opportunity to then perhaps pick away in a positive way but also ask other substantially technical questions in respect of this.

We know that Part 2 sets out the fees framework for this regime, and there are some issues, as Mr Parker outlined, in terms of, you know, business to business arrangements, which I think the Minister should allude to at the very least and give us some assurances, because this bill is about, of course, aligning us with Australia. Australia passed similar legislation in 2007, which, of course, does raise the question that I put to the Minister some nights ago about other legislation—which, Mr Chair, obviously, if I went down that track you would call me to order—as to why a series of commerce bills that are critical to the credibility and integrity of our business community have sat around. We know that Simon Power had a pretty good ability to punch legislation through, and he did so quite prolifically, actually, in many of his portfolios, but it has sort of ground to a halt with this Minister.

Again, as I said to him last week, I think, in respect of other legislation, I would be grateful for an indication from the Minister as to where he believes the priorities lie in respect of this sort of legislation. You know, Australia has had it since 2007. We kicked the ball off on exit from Government. The Minister’s predecessor, Simon Power, then did, I think, a pretty admirable job of trying to progress it, amongst all the other legislative priorities that were there, both in commerce and others—I think he was the Minister of Justice and Leader of the House at the time—and now we come to this Minister.

I would be grateful to know where he sees, in a general sense, the commerce legislation lying in respect of the priorities of the Government framework. As a sort of show of good faith to that point, I think he should address immediately, not in a subsequent debate or down the track, the issues that David Parker raised. They are quite critical; they are of a technical nature. I do not know whether the Minister is a lawyer; I certainly know I am not, and I am reliant on the eminence of the arguments put forward by Mr Parker and others. But I am sure, given the high level of expertise that is at the Minister’s disposal—and I paid tribute to the officials as we went through the select committee process, and I am sure my opposite number would have as well—the Minister has the ability to turn round, turn to his right, lean back, and ask for further information.

Very briefly—and I do acknowledge the previous speaker, Clayton Cosgrove, and the spirit of the way this bill, the Commerce Commission (International Co-operation, and Fees) Bill, has progressed over quite some time. I will talk very briefly to Mr Parker’s points. Part 2 amends the Commerce Act, and clause 13 talks about section 108 of the Commerce Act. So the bits that he was interested in are actually separate from what is in Part 1. They are the normal fees and course of events in the existing Commerce Act. As the Commerce Committee pointed out in its commentary on the bill, the intent of perhaps exempting some of the small and medium sized enterprises from such fees is why that clause is as it is.

I intend to acknowledge some of the other points in the debate on the title and commencement clauses.

I think David Clark almost had the call before. I will give it to him now.

I raise a further question in relation to the matter that the Minister in the chair, the Minister of Commerce, has just addressed, and seek some further clarification. In my speech on Part 1, I was told clearly by the Chairperson at the time, not the current one, that I could not raise matters in relation to fees. I was raising a matter in relation to a general principle in the Commerce Commission (International Co-operation, and Fees) Bill, and I think on that occasion I failed to articulate quite how it was not fees but the principle I was addressing. But, having taken that advice, I will plant my question firmly in the clause discussing the fees. It relates to those exemptions and the more general principle of who should receive them; the Minister has mentioned small and medium enterprises.

The more general point is that overseas regulators consider the likelihood of reciprocity as a factor in determining whether to provide assistance or information to the commission. This is about reciprocity and it goes both ways. My question is really about the extent and nature of the consultation with the Ministry of Foreign Affairs and Trade where there are requests for its assistance in matters that have significant international trade consequences for New Zealand, and whether this exemption could apply in those cases, and what the threshold would be when we say that the matter must be significant. In Part 1 of the bill, if I can refer to that because I think it does relate to this, it says in section 99H(2A), in clause 6: “If the Commission considers, after consultation with the Ministry of Foreign Affairs and Trade, that a request for compulsorily acquired information or investigative assistance may have significant trade consequences for New Zealand, the Commission must refer the matter to the Minister of Trade.” So in respect of those fees, I am wondering what the test for significance is and how that will be applied. That is the heart of my question, and I invite the Minister’s response on it.

Labour will be supporting this legislation because we believe that the principles it is addressing are important and ought to be addressed. The legislation has been a long time in coming. As the Minister referred to earlier, we have had a lengthy debate on this matter, but it is important legislation and it aligns us with Australia, which passed similar legislation in 2007.

I will take a call on behalf of New Zealand First in relation to Part 2 of the Commerce Commission (International Co-operation, and Fees) Bill 2008. It is that year 2008 that does somewhat concern us also, in that this piece of legislation, this bill, was first put forward on 9 September 2008 by the Hon Lianne Dalziel when there was still a Labour Government. It is somewhat concerning that it was then brought to this House for its first reading on 25 May 2010 by the Hon Simon Power, and it is now 31 July 2012.

This bill, and I will not go into Part 1 of it, is basically about greater cooperation between New Zealand and particularly Australia and the Australian Competition and Consumer Commission to ensure that things are properly investigated between the two commissions and to stamp out any improprieties in terms of commerce, particularly between Australia and New Zealand. It is somewhat disappointing that it has taken the best part of 3 or 4 years to go through to this point. It does reflect poorly on the legislative process that in that period of time who knows what sorts of things could have occurred that otherwise might have been picked up, had this bill been through by now. I am pleased that Minister Foss, the Minister of Commerce, has now moved this on—being a good Hawke’s Bay man like me, we do pick up the ball and run with it, like a good Magpies rugby player. I am pleased that this bill has been picked up by the Minister and is now being pushed through.

In terms of Part 2, in relation to, simply, some amendments to the Commerce Act 1986, these are understandable just in terms, as the Minister said, of determining any remission of fees and any reduction in fees, and that is understandable. So in terms of that, New Zealand First certainly is in support of this bill. This is, again, a good initiative to clamp down on some situations under the Commerce Act, and the Commerce Commission being able to investigate. It will allow greater transparency and ensure that there can be proper investigations and also charges made to overseas agencies requiring information of our Commerce Commission, and vice versa.

This is a good piece of legislation. As we have said in the past, New Zealand First will support Government legislation that is to the benefit of New Zealand, and we believe that this is good legislation. It was started by the former Labour Government and carried on through by the National Government, but, in terms of this bill, New Zealand First does support it and the sooner this is passed by the House the better. Thank you.

I am pleased to take a call on Part 2 of the Committee stage of the Commerce Commission (International Co-operation, and Fees) Bill. As has been repeated by a number of speakers in the House, and on this side of the House certainly, this bill is dated 2008 and it is now 2012. Although it aligns us with Australia, it is taking us quite a long time to actually make that happen. I think you have got to ask how that will affect other pieces of legislation and other general harmonisation mechanisms that this Government is purportedly undertaking.

One of the main points to make around this, before I get to the issue around the fees exemption, is the fact that this was a Labour bill and that it was brought by the Hon Lianne Dalziel. It went through the Commerce Committee some time ago, and it has taken a long time to get to this part of the bill in the Committee. We are not actually getting to the end part, and goodness only knows when that will happen.

The issue of harmonisation with Australia is critical, and I suppose really it is a measure of our effectiveness as a country and in a parliamentary sense that we are pushing legislation through in commerce that is allowing and encouraging that greater reciprocal assistance from the equivalent overseas regulators. I think in terms of confidence for New Zealand, for other countries dealing with New Zealand, we really do have to be seen to be taking this stuff seriously. My concern, which has been echoed by other members in this House from my own party and also from other parties, is that we are not taking these issues seriously enough and we are certainly not pushing them forward quickly enough. We do expect that there is going to be greater reciprocal assistance between the regulators on this particular issue, but, as I pointed out—I think it was in the second reading—that reciprocal relationship is certainly not present on a whole range of other issues that are of great moment, great importance, at the moment, and that is particularly in the telecommunications industry.

There was an issue of telecommunications law that did come into this piece of legislation that was addressed because this bill did not extend to information that was gathered under the Telecommunications Act 2001. We heard submissions on this issue. It was brought to us as a particular issue, by a number of the telecommunications companies, that did not reflect the equivalent legislation that exists in other countries, including Australia, which is whom we are seeking this harmonisation with. So we had to address it, and certainly the officials’ advice to us was that the possibility of including the telecommunications law was raised by the Commerce Commission with the then Minister of Communications and Information Technology, which was then passed on to the Minister of Commerce.

There was an extensive amount of discussion in the select committee about this issue, and the regulatory impact statement certainly confirmed that including the Telecommunications Act in the bill outweighed the cost. But we could not do that, because it was outside the scope, so there had to be a Supplementary Order Paper introduced into the House on that issue.

Just briefly around the fee exemption issue, which is the subject of Part 2, we in the select committee considered removing the regulation powers to prescribe the classes of people who would be exempt from that requirement to pay any fees; we considered removing that power, but because that provision was targeted to the small to medium sized enterprises—[Bell rung] Mr Chair.

The CHAIRPERSON (Eric Roy): Are you seeking another call?

Yes, Mr Chair. I am seeking another call.

The CHAIRPERSON (Eric Roy): Clare Curran.

As that provision was targeted to the small to medium sized enterprises, we decided that it was important to retain it. So that is the essence of Part 2 and why that was considered to be important.

I think it is important just to note that these are important pieces of legislation, which to the rest of the House and perhaps to the people watching on television tonight do seem quite technical in nature, and perhaps for some members may even seem quite tedious. They are very important, and they do not stand alone. I am sure the Minister would agree with me on this, that they are not stand-alone pieces of legislation that exist on their own; they are part of a package. We have seen come before this House a package of these harmonisation measures, which are about trying to enable business to occur more freely between ourselves and, particularly, Australia, which requires the regulatory environments of both countries to be more aligned.

In this piece of legislation, that is happening. It has taken a bit of time for us to get there, but I think we are all pretty much in support and agreement around this. But the intent of that is not occurring, as I pointed out earlier, in some other, very significant, parts of our economy—in particular, around, again, the telecommunications industry and the content creation industry, which are areas where there is tremendous growth and impact for us as a nation economically and where getting the infrastructure right, which includes the regulatory environment, is critical.

So the harmonisation issues there are just as important. I hope that the Minister in the chair tonight, the Minister of Commerce, is considering those issues, is thinking about those issues, and that we will actually see start to appear from his deep thinking on these issues some results in the form of potential regulatory change and, potentially, even legislative change in the future, because those issues are how we as a nation are going to actually perform better, with infrastructure that has a competitive environment and where the regulatory environment is aligned with our cousins across the Ditch. Although we certainly support this bill—and speaking on Part 2 on the fees issue, we certainly support this and the other parts of the legislation—we certainly see the much bigger picture, and I am expressing concern in the House today that the other side of the House, the Government, does not see that big picture.

Part 2 agreed to.

Clauses 1 and 2