Small issue, little interest, move along

Last week I turned up (by video) at the Economic Development, Science and Innovation Select Committee to have my say about the Commerce Amendment Bill: supporting reform of s36 (abuse of market power), suggesting that the Commerce Commission should be able to issue quick-fix provisional authorisations like the ACCC can, and arguing against the information sharing powers being proposed for the Commerce Commission.

Very few people seem to care about the information sharing issue. There were 29 submission on the bill but on my count only 5 of them raised the information sharing powers. 

They were the Commission (for); Edward Willis of the University of Auckland Law School ("tentative support, subject to some reservations"); Malcolm Harbrow (Twitter's Idiot/Savant and No Right Turn blogger), who wanted to make sure the new provisions weren't used to subvert application of the Official Information Act (good idea); and Russell McVeagh and me (both opposed). Russell McVeagh in their executive summary say "Such expansion of powers will disincentivise businesses from voluntarily providing information to the Commission to the detriment of the current levels of efficiency in the discharge of the Commission's significant number of functions", and I agree, though I also have wider issues, as I said in my submission.

So: not many people care. And maybe it really is no biggie. At the Committee hearing the Commission sang quite a good "we're all public sector entities trying to work together" song, and I can imagine that hitting the spot. And to be fair it has guidelines (the relevant bits are pp33-4) which set a reasonably high threshold for sharing information. 

The guidelines say that "Other than as provided for in the specific situations discussed below we do not share evidence with other New Zealand or overseas law enforcement or government departments or entities". The specific situations are: joint investigations; Fair Trading Act sharing with the FMA and Takeovers Panel (allowed for in that Act); where there might be serious fraud (allowed for under the SFO's Act); where there might be serious criminal offending (sharing with the likes of the police); where there might be a serious threat to public health or public safety (whatever agency is relevant); and assisting overseas regulators the Commission has a cooperation agreement with (allowed under various Acts including the Commerce Act).

That's all sensible and desirable, and if the Commission carries on along those lines, and you'd expect it to, all good. But the problem is that the proposed legislation doesn't replicate those high standards. It just says (proposed s99AA) that 

(1) The Commission may provide to a public service agency, a statutory entity, or the Reserve Bank of New Zealand any information, or a copy of any document, that the Commission—

(a) holds in relation to the performance or exercise of the Commission’s functions, powers, or duties under this Act or any other legislation; and

(b) considers may assist the public service agency, statutory entity, or Reserve Bank in the performance or exercise of its functions, powers, or duties under this Act or any other legislation

That opens a very large door: "Any information ... that ... may assist" a public sector entity is a far looser criterion than the serious criminal offending, or serious threat to public safety, that the Commission under its present guidelines would need to see before it was prepared to share. 

Ed Willis is his excellent submission (more judicious than my own coathanger tackle) said, and I'm with him, that 

it would usually be expected that processes for the protection of relevant interests and the promotion of transparency would be incorporated into the statutory drafting itself rather than being left to the Commission to work out in practice. That said, the real issue here is one of appropriate balancing. The Committee may wish to question the Commerce Commission directly about the anticipated procedures it will employ to ensure any information sharing under the new provisions is appropriate and fit-for-purpose. Only if the Committee is satisfied with the Commission’s response should it recommend that the Bill be enacted in its current form (p5)