Last week's competition policy announcements by Scott Simpson, the Minister for Commerce and Consumer Affairs, were some modest steps in the right direction (and a nice little coup for the Competition Law and Policy Institute of New Zealand's annual workshop, where he made the speech).
He was surely right to make it easier for businesses to collaborate where there are likely to be net consumer benefits, given that the Commerce Commission's current authorisation process is "too complex, costly, and slow for business". Authorisation as it is currently practised isn't so much like using a sledgehammer to crack the proverbial nut: it's more like commissioning a squadron of war elephants to trample on it for months.
He also said that "We have also heard in your submissions" - the ones in response to MBIE's turn of the year consultation on 'Seeking feedback to improve competition in New Zealand' - "that businesses and individuals are increasingly reluctant to share information with the Commission because of fears confidential information could be released under the Official Information Act, potentially leading to retaliation or misuse of confidential information by competitors. This is undermining the Commission’s ability to collect evidence and receive useful information, particularly in investigations and merger clearances".
This is something that has been rumbling for a while, and he's done something about it. I can't say that I warm to one of his solutions, to exempt information provided to the Commission from the ambit of the OIA for 10 years, as I reckon we could do with less whiteanting of the Act, but I suppose it will do the job in its way, and the other proposals (more flexible confidentiality orders, and whistleblower protection) look good ideas.
If I can be grumpy for a moment, I'd like to observe that this concern for confidentiality wasn't so obviously to the fore the last time Parliament looked at the Commerce Act, when in 2021 it introduced s99AA to allow the Commission to share information with "a public service agency, a statutory entity, the Reserve Bank of New Zealand, or the New Zealand Police", contrary to my elegant and well reasoned submission.
What struck me otherwise about the Minister's announcements was how much was still to come. The MBIE consultation was open-ended, but included a questionnaire (which many of us filled in) indicating what they most wanted to hear about. They included "the effectiveness of the current merger regime"; how to deal with "creeping acquisitions" and entrenchment of market power, for example, through 'killer' acquisitions of nascent competitors; whether to align our approach to mergers with the Aussies'; and a big question asking "How effective do you consider the current merger regime is in balancing the risk of not enough versus too much intervention in markets?". MBIE wanted to know whether potentially non-competitive mergers that were not notified to the Commission are an issue, and whether the Commission might need extra powers to deal with them (such as a stay or hold separate power). And MBIE wanted to know whether the Commission should be able to accept behavioural undertakings as part of a merger approval.
Outside mergers, MBIE also wanted to gather views about potential anti-competitive 'concerted practices' and what to do about them, and what role industry codes or rules might play in bolstering the competition regime. And then there were various rats and mice, including whether the Commission's injunction powers need modernising, views on assorted technical and minor amendments, and an open-ended "what else have you got to say".
So it would be fair to say that - six months after consultation closed - the announcements last week dealt to only two of the 11 broad topic areas MBIE canvassed: we've had some baubles, but no Christmas tree. The Minister said that "Further decisions on the merger regime, potential new industry codes, and other changes will be announced over the coming weeks". Given that we've been on the slow side in recent years when it comes to competition policy reform, compared with the Aussies in particular, a quick policy timeframe is good to hear.
