COMMENT: Why transtasman businesses need to be extra vigilant
The Commerce Commission's regulator-to-regulator co-operation arrangement with the Australian Competition and Consumer Commission means businesses will need to be extra vigilant.
The arrangement announced last month is part of a wider framework of co-operation agreements which allow the Commerce Commission to work with other countries that have comparable competition and consumer protection laws.
This development comes at a time when New Zealand consumer law is becoming increasingly aligned with the Australian regulatory environment – for example, the proposed provisions of the Consumer Law Reform Bill – and there is a high level of agreement on competition and consumer policy between to the two countries.
The co-operation arrangement between the commission and the ACCC allows the agencies to assist each other with investigations and share information that has been compulsorily acquired under the Commerce Act 1986, Fair Trading Act 1986, Credit Contracts and Consumer Finance Act 2003 and the Telecommunications Act 2001.
The ACCC has provided investigative information and assistance to the commission in the past, and will continue to do so in accordance with section 155AAA of the Australian Competition and Consumer Act.
Previously not permitted
New Zealand legislation has not previously specifically permitted the transfer of such information, but amendments to affected legislation in 2012 allowed for the provision of information and investigative assistance to a regulatory body overseas if a co-operation arrangement was in place.
The arrangement allows the ACCC to request assistance from the commission and allows the commission to provide the ACCC with information or investigative assistance.
Compulsorily acquired information which may be passed to the ACCC is information that is not in the public domain which has been compulsorily acquired by the commission through the use of its search and notice powers or any of its incidental powers.
Investigative assistance will include the commission providing assistance to the ACCC by exercising its powers to assist with ACCC investigations on request.
If the Consumer Law Reform Bill is introduced as currently drafted, the commission will be able to compulsorily acquire information when investigating breaches of the Fair Trading Act – in addition to the powers it already has to do so under the Commerce Act and the Credit Contracts and Consumer Finance Act.
Without a warrant
Proposed changes to the Fair Trading Act will also allow commission representatives to enter premises without a warrant to investigate product safety and halt the sale of potentially unsafe products. The new co-operation agreement means information acquired in such investigations will now be able to be passed on to the ACCC if they request it.
The commission may impose conditions on the provision of information or assistance to the ACCC, including how the information is handled, confidentiality and the payment of costs incurred.
The commission will not provide information which was given on a 'without prejudice' basis, or is confidential, or which was produced in an attempt to settle a dispute between parties.
It will also not provide copies of statements made by a person to the commission that would tend to incriminate that person, unless the ACCC gives certain written undertakings as to how that information will be used.
Any privileged material that is passed on to the ACCC will remain privileged and will be treated by the ACCC as subject to an analogous privilege under Australian law.
The main effect of the arrangement is intended to be to allow the ACCC and the commission to work together more effectively and to more easily tackle transTasman competition, consumer and telecommunications issues.
Given the expanded powers the commission will have as a result of the upcoming changes to the Fair Trading Act in New Zealand, businesses that operate in both countries will need to be extra vigilant to ensure they are complying with the consumer law of the two nations in all relevant respects, or risk having to deal with the investigations and enforcement powers of both regulators working together.
Kristin Bradley is a senior solicitor with Bell Gully