New Zealand Acts

COMMERCE ACT 1986 - SECT 61

61 Determination of applications for authorisation of restrictive trade practices

1 The Commission must, in respect of an application for an authorisation under section 58 , make a determination in writing—

a) granting such authorisation as it considers appropriate:

b) declining the application.

1A If authorisation is not granted within 120 working days after the date on which the application is registered, the Commission is deemed to have declined the application, subject to any alternative timetable agreed between the Commission and the applicant.

2 Any authorisation granted pursuant to section 58 may be granted subject to such conditions not inconsistent with this Act and for such period as the Commission thinks fit.

3 The Commission must take into account any submissions in relation to the application made to it by the applicant or by any other person.

4 The Commission must state in writing its reasons for a determination made by it.

5 Before making a determination in respect of an application for an authorisation, the Commission must comply with the requirements of section 62 .

6 The Commission must not make a determination granting an authorisation relating to an application under section 58(1) to (6A) unless it is satisfied that—

a) the entering into of the contract or arrangement or the arriving at the understanding; or

b) the giving effect to the provision of the contract, arrangement or understanding; or

c) the giving or the requiring of the giving of the covenant; or

d) the carrying out or enforcing of the terms of the covenant; or

e) engaging in the conduct—

as the case may be, to which the application relates, will in all the circumstances result, or be likely to result, in a benefit to the public which would outweigh the lessening in competition that would result, or would be likely to result therefrom.

6A For the purposes of subsection (6), a lessening in competition includes a lessening in competition that is not substantial.

7

8 The Commission must not make a determination granting an authorisation relating to an application under section 58(6B) to (8) unless it is satisfied that the following matter to which the application relates will in all the circumstances result, or be likely to result, in such a benefit to the public that the matter should be permitted:

a) entry into the contract or arrangement, or arriving at the understanding:

b) giving, or requiring the giving of, the covenant:

c) giving effect to the provision of the contract, arrangement, understanding, or covenant:

d) engaging in the practice of resale price maintenance:

e) the act or conduct.

9 For the purposes of section 58(6B) to (6D) and subsection (8)(a) to (c), it is not necessary for the Commission to determine whether a particular provision is in fact a cartel provision, providing there are reasonable grounds for believing that it might be.

Note: Trade Practices Act 1974 s 90(1), (2), (4), (5), (6), (7), (8) (Aust)

History: Section 61(1A): inserted, on 15 August 2017, by section 15(1) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).   Section 61(1): amended, on 5 April 2023, by section 29(1) of the Commerce Amendment Act 2022 (2022 No 11).     Section 61(3): amended, on 5 April 2023, by section 29(1) of the Commerce Amendment Act 2022 (2022 No 11).     Section 61(4): amended, on 5 April 2023, by section 29(1) of the Commerce Amendment Act 2022 (2022 No 11).     Section 61(5): amended, on 5 April 2023, by section 29(1) of the Commerce Amendment Act 2022 (2022 No 11).     Section 61(6): amended, on 5 April 2023, by section 29(1) of the Commerce Amendment Act 2022 (2022 No 11).     Section 61(6): amended, on 5 April 2023, by section 29(2) of the Commerce Amendment Act 2022 (2022 No 11).     Section 61(6): amended, on 15 August 2017, by section 15(2) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).     Section 61(6)(d): amended, on 5 April 2023, by section 29(3) of the Commerce Amendment Act 2022 (2022 No 11).     Section 61(6)(e): inserted, on 5 April 2023, by section 29(4) of the Commerce Amendment Act 2022 (2022 No 11).     Section 61(6A): inserted, on 2 September 1996, by section 4 of the Commerce Amendment Act 1996 (1996 No 113).     Section 61(7): repealed, on 15 August 2017, by section 32(2)(a) of the Commerce (Cartels and Other Matters) Amendment Act 2017 (2017 No 40).     Section 61(8): replaced, on 5 April 2023, by section 29(5) of the Commerce Amendment Act 2022 (2022 No 11).     Section 61(9): inserted, on 5 April 2023, by section 29(5) of the Commerce Amendment Act 2022 (2022 No 11).