New Zealand Commerce Minister Hon Simon Power and Australian Parliamentary Secretary to the Treasurer Hon David Bradbury have recently announced cross-appointments between the New Zealand Commerce Commission (the NZCC) and the Australian Competition and Consumer Commission (the ACCC).
NZCC chair Dr Mark Berry has been appointed as an associate member of the ACCC and will be in a position to participate in matters before the ACCC. ACCC member Dr Jill Walker will join the NZCC as an associate member and will participate in matters relating to the Commerce and Fair Trading Acts. She will be involved in particular issues that have a trans-Tasman dimension such as merger clearance work involving trans-Tasman market developments. Both have been appointed for three-year terms from 1 December 2010 to 30 November 2013.
The cross-appointments are one of the key outcomes under the Single Economic Market Outcomes Framework announced by both governments in August of last year – the concept aiming to remove regulatory barriers to trans-Tasman trade. It is envisaged that the cross-appointments will enhance cooperation between the NZCC and the ACCC, and will improve the alignment in administration of competition law between the two countries. Specifically, Hon Simon Power has said the appointments will support convergence in the way the two regulators approach similar issues under competition and consumer laws.
Companies operating in both markets will need to be mindful of this increased regulatory integration, particularly when applying for merger clearances with trans-Tasman implications. The clearance process in each jurisdiction can expect to have a more collaborative feel to it as the associate members participate in and contribute to, clearance decisions involving trans-Tasman market developments. As such, the reasoning and findings in each jurisdiction, to the extent there are market characteristics common to both countries, are likely to become more aligned.
However, the change is unlikely to be as significant as might be thought at first glance. A material sharing of information and process has already become evident over the past few years, particularly since the two commissions signed a formal cooperation agreement in 2007 under which they both agreed to inform each other of formal or informal applications and share information gained during investigations affecting both jurisdictions. Those practising in the competition law field have seen this sharing of information already impacting trans-Tasman transaction investigations, although each commission has made sure that it maintains its own independent decision making jurisdiction which recognises differences in market conditions. That independent decision making is not expected to change as a result of these cross-appointments.