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Commerce (Cartels and Other Matters) Amendment Bill (Consistent) (Section 17) [2011] NZBORARp 33 (29 August 2011)

Last Updated: 29 April 2019

Commerce (Cartels and Other Matters) Amendment Bill

29 AUGUST 2011 ATTORNEY-GENERAL

LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990: COMMERCE (CARTELS AND OTHER MATTERS) AMENDMENT BILL

1. We have considered whether the Commerce (Cartels and Other Matters) Amendment Bill (PCO 14455/13.0) (“the Bill”) is consistent with the New Zealand Bill of Rights Act 1990 (“Bill of Rights Act”). We understand that the Bill is likely to be considered by the Cabinet Economic Growth and Infrastructure Committee at its meeting on Wednesday, 7 September 2011.
2. This Bill amends the Commerce Act 1986, introducing criminal sanctions for hard-core cartel behaviour and makes a number of other amendments including to the provisions that govern jurisdiction and penalties.
3. We have concluded that the Bill appears to be consistent with the Bill of Rights Act. In reaching that conclusion we have considered a possible inconsistency with

s 17 (freedom of association) of that Act.

ISSUES OF INCONSISTENCY WITH THE BILL OF RIGHTS ACT

Freedom of association

4. Clause 7, new s 30, of the Bill raises a possible issue in relation to s 17 of the Bill of Rights Act, the right to freedom of association. This right is wide, and encompasses the right to form and participate in any kind of organisation. [1]
5. New s 30 makes it an offence to enter into a contract, arrangement, or understanding that contains a cartel provision, or gives effect to a cartel provision. Contravention of this section can result in civil pecuniary penalties (s 80) or criminal prosecution (new s 82B).
6. While new s 30 is a potential limitation on the right to freedom of association, we consider that it is a justified limitation in terms of s 5 of the Bill of Rights Act because:
   

• there is significant public interest in preventing anti-competitive cartel activity, which can result in market monopolies;
• there are exemptions for collaborative activities (new s 31) and joint buying and promotion agreements (new s 32). If these exemptions apply, or if a person honestly believes that they apply, this a defence to civil or criminal liability; and
• before entering into a contract, arrangement, or understanding that a person believes contains a cartel provision, the person can apply for a clearance from the cartel prohibition on the basis that it relates to a collaborative activity (new s 65A).
  

Conclusion

• We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed by the Bill of Rights Act. This advice has been prepared by the Public Law Group and the Office of Legal

Counsel.

Jeff Orr

Chief Legal Counsel Office of Legal Counsel

Footnote:

1. Butler, Andrew and Petra The New Zealand Bill of Rights Act: A Commentary (Wellington: 2005) para 15.7.2.

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Commerce (Cartels and Other Matters) Amendment Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter.

Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.