On 27 November 2013, the New Zealand Commerce Commission ("Commission") released guidelines for Overseas Requests for Compulsorily Acquired Information and Investigative Assistance ("Guidelines").1 The Guidelines build on the Commerce (International Co-operation, and Fees) Amendment Act 20122 ("Commerce Amendment Act") and amendments to other legislation,3 and are aimed at providing increased transparency around the Commission's response to requests for compulsorily acquired information and/or investigative assistance from recognised overseas regulators made under a cooperation agreement.
With the negotiation of international free trade agreements,4 and the recent commencement of the Trans-Tasman Proceedings Act 2010, which provides for competition regulators to gain Australasian enforcement powers and reinforces the progressive harmonisation of New Zealand and Australian competition law;5 international information sharing and investigative assistance is an increasingly important aspect of the Commission's operations. The Commission has expressed the hope that the Guidelines will streamline investigations and allow it to more effectively deal with global cartel conduct.
Under the Commerce Amendment Act, the Commission can use its powers to gather information for a recognised overseas regulator, or can provide information already gathered to assist the recognised overseas regulator to perform its functions. The Guidelines reiterate that information contained in the cooperation agreement must relate to competition or consumer laws, and further prescribes the form and content of such arrangements. In order to ease the tension between disclosure and public interest concerns around privilege and privacy, the Guidelines explain that the Commission can impose conditions relating to the storage, use and access of information granted pursuant to such a request.6
The Commission must be satisfied that providing the information will, or will be likely to, assist that regulator to perform its functions or exercise its powers, and will not significantly prejudice New Zealand’s international trade interests. The Commission will consider whether a request may have significant trade consequences by assessing its impact on New Zealand importers' and exporters' access to international markets. The Commission will further consider whether responding to the request will substantially affect its ability to perform any of its own statutory functions.7
The Commission has stressed the need for transparency in this process, and will publish on its website copies of all cooperation agreements that are in force, and any amendments to them.8 Currently the only cooperation agreement that the Commission has is with the Australian Competition and Consumer Commission, entered into on the 27 February 2013.9 Given previous (now outdated) arrangements with other regulators including the Office of Fair Trading, the Canadian Competition Bureau, and the Taiwan Fair Trade Commission, in addition to the Commission's desire to harmonise the competition regime with its major trading partners and the value of international cooperation in behavioural investigations; further arrangements seem inevitable.