New Zealand Acts

COMMERCE ACT 1986 - SCHEDULE 5

SCHEDULE 5 – Material incorporated by reference

s 53ZF

History: Schedule 5: added, on 14 October 2008, by section 28 of the Commerce Amendment Act 2008 (2008 No 70).

1 Definitions

In this schedule, unless the context otherwise requires,—  
"material" means written material that is set out in a document other than a Part 4 determination    
"Part 4 determination" means either of the following:  

a) a determination made under section 52P ; or

b) an input methodology published as referred to in section 52W .

History: Schedule 5 clause 1 Part 4 determination paragraph (b): amended, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).

2 Material incorporated by reference into Part 4 determinations

1 The Commission may incorporate by reference any material into a Part 4 determination if—

a) the material deals with technical matters; and

b) it is impractical to include it in, or publish it as part of, the determination.

2 Material may be incorporated by reference into a Part 4 determination—

a) in whole or in part; and

b) with any modifications, additions, or variations specified in the Part 4 determination.

3 Material incorporated by reference—

a) is the material as it exists at the time the Part 4 determination is published; and

b) has legal effect as part of the Part 4 determination for all purposes, except as provided in clauses 8 and 9 .

3 Proof of material incorporated by reference

1 A copy of any material incorporated by reference in a Part 4 determination must be—

a) certified by the chairperson as a correct copy of the material; and

b) retained by the chairperson.

2 The production in proceedings of a certified copy of the material is, in the absence of evidence to the contrary, sufficient evidence of the incorporation of the material into the Part 4 determination.

4 Access to material incorporated by reference

1 The Commission—

a) must make copies of all material incorporated by reference in a Part 4 determination available for inspection during normal working hours at the head office of the Commission; and

b) must make copies of the material available for purchase at a reasonable price from the head office of the Commission; and

c) may make copies of the material available in any other way that the chairperson considers appropriate in the circumstances (such as on an Internet site); and

d) must give notice in the Gazette of how the material is available for inspection and purchase.

2 Subclause (1) applies to material when it is first incorporated into a Part 4 determination, and to any subsequent amendment or replacement of the material that is incorporated into the determination.

3 A failure to comply with this clause does not invalidate a Part 4 determination.

5 Effect of amendments to, or replacements of, material incorporated by reference

1 An amendment to, or replacement of, material incorporated by reference in a Part 4 determination has legal effect as part of the determination only if—

a) the amendment or replacement material is made by the person or organisation that made the original material; and

b) the amendment or replacement material is of the same general character as the original material; and

c) either—

i) a subsequent Part 4 determination states that the particular amendment or replacement material has legal effect as part of the determination; or

ii) the chairperson, by notice, adopts the amendment or replacement material as having legal effect as part of the determination.

2 A notice under subclause (1)(c)(ii) is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).

History: Schedule 5 clause 5(1)(c)(ii): amended, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).   Schedule 5 clause 5(2): inserted, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).  

6 Effect of expiry of material incorporated by reference

1 Material incorporated by reference in a Part 4 determination that expires, is revoked, or ceases to have effect, ceases to have legal effect as part of the Part 4 determination only if—

a) a subsequent Part 4 determination states that the material ceases to have that legal effect; or

b) the chairperson, by notice, states that the material ceases to have that legal effect.

2 A notice under subclause (1)(b) is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).

History: Schedule 5 clause 6(1)(b): amended, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).   Schedule 5 clause 6(2): inserted, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).  

7 Consultation before material incorporated by reference

1 This clause applies if—

a) the Commission proposes to incorporate material by reference into any Part 4 determination; or

b) the Commission proposes to make a Part 4 determination adopting amended or replacement material; or

c) the chairperson proposes to make a notice adopting amended or replacement material.

2 If any of the things referred to in subclause (1) are proposed, the Commission—

a) must make copies of the material (which in this subclause includes any amended or replacement material) proposed to be incorporated by reference available for inspection during normal working hours at the head office of the Commission; and

b) must make copies of the material available for purchase at a reasonable price from the head office of the Commission; and

c) may make copies of the material available in any other way that the chairperson considers appropriate in the circumstances (such as on an Internet site); and

d) must give notice in the Gazette of how copies of the material may be inspected and purchased, and how people may make comments on the proposal; and

e) must allow a reasonable opportunity for people to comment on the proposal; and

f) must consider any comments made within the time allowed.

3 A failure to comply with this clause does not invalidate a Part 4 determination.

History: Schedule 5 clause 7(1)(c): amended, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).

8 Application of Legislation Act 2019 to material incorporated by reference

Subpart 1 of Part 3 and section 114 of the Legislation Act 2019 do not apply to material that is incorporated by reference in a Part 4 determination merely because it is incorporated.

History: Schedule 5 clause 8: replaced, on 28 October 2021, by section 3 of the Secondary Legislation Act 2021 (2021 No 7).

9 Regulations (Disallowance) Act 1989 not applicable

[Repealed]

History: Schedule 5 clause 9: repealed, on 5 August 2013, by section 77(3) of the Legislation Act 2012 (2012 No 119).