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Greater Certainty For Businesses After Review

Greater Certainty For Businesses After Commerce Act Review

Commerce Minister Lianne Dalziel and Energy Minister David Parker are promising greater certainty around investment decisions as a result of changes announced today to the regulatory control provisions of the Commerce Act.

Changes include more clarity about how regulation will occur, the introduction of alternatives to price control, tailoring the regime to New Zealand's small size and providing specifically for incentives to invest in infrastructure.

"It's always a question of balance when we consider the interests that need to be protected in the context of a sector that does not face the discipline of competition, both in terms of consumer interest in prices and the economy's interest in encouraging investment in infrastructure and innovation," Lianne Dalziel said.

"I believe we have got the balance right."

The Commerce Act Part 4 allows goods and services to be placed under price control and/or quality control where there is limited or lessened competition, and control would be in the interests of acquirers. Two inquiries have been undertaken by the Commerce Commission under these provisions, into airports (1999-2003) and gas pipelines (2003-2005). Part 4A applies a 'thresholds' regime for electricity lines businesses, which enables price and quality control to be imposed if businesses breach thresholds set by the Commission. Twenty-eight electricity lines businesses and 2 gas distribution companies are currently regulated under the Act.

Major changes under the new regime include:

  • Part 4 and 4A come together in a single regulatory framework, which will provide for alternative forms of regulation in addition to conventional price control including:

  • information disclosure

  • a negotiate/arbitrate regime

  • a 'default/customised price path' regime, which replaces the threshold regime

The test for whether regulation may be imposed becomes:

  • there is little or no competition and prospect of competition and there is substantial scope for the exercise of market power, taking into account the effectiveness of existing regulation or arrangements; and the benefits of regulation in meeting the objectives of the (new) purpose statement clearly exceed the costs of regulation.
  • The rules for how costs and prices should be calculated (input methodologies) will be spelt out in advance by the Commerce Commission. These decisions will be subject to merits review by way of appeal to the High Court.

"All OECD countries regulate infrastructure companies to protect consumers from monopoly prices," Lianne Dalziel said.

"The new regime takes account of international best-practice, and focuses on forward-looking incentives for businesses rather than looking backward for breaches of thresholds."

David Parker said the review also recognised that New Zealand faces some unique circumstances in its regulated energy sector.

"For example, 16 of our 28 electricity lines businesses are small (under 100,000 consumers) and wholly owned by consumer trusts and there is at least a 90 per cent overlap between the owners and customers of the electricity lines business; in other words, the company is owned by the people who use the power.

"These are smaller lines companies servicing their local community, which run a cost minimisation (rather than a profit maximisation) model. These trust-owned lines companies will not be regulated in the same way as other companies, and will be required to disclose information about the operations of their business."

David Parker said that there will be provision for consumers to petition the Commission for a change in the form of regulation as a backstop.

Legislation to implement these changes is due to be introduced next year.

Cabinet papers relating to the announcement will be available on www.med.govt.nz


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