Our Government, Competition and Regulatory team has made a submission to the Economic Development, Science and Innovation Committee on the Commerce (Promoting Competition and Other Matters) Amendment Bill ("Bill").
The Bill was introduced to Parliament in December 2025. You can read our submission in full here and a copy of the Bill here.
What's in the Bill?
As we noted in our earlier update, the Bill has significant implications for M&A activity, price competition, and competitor collaborations. Key reforms in the Bill include changes to the substantive merger assessment, changes to the merger review process, the introduction of an objective, cost-based prohibition on predatory pricing, new powers for the Commerce Commission ("NZCC") to recommend pro-competitive regulation, and a suite of reforms promoting beneficial collaboration.
Overview of our submission
Our views in this submission reflect the principle that any amendments to the Commerce Act 1986 ("Commerce Act") should be proportionate, evidence-based, and directed at clearly identified shortcomings in the current framework. In our view, while some proposals would improve the efficiency and transparency of NZCC's processes - such as the proposed streamlined clearance process for beneficial collaboration - others are disproportionate to the harms they are intended to address, particularly where there is limited evidence that such harms exist. Many risk adverse and unintended consequences that may undermine the Government's goal of Going for Growth.
In summary, our submissions and recommendations regarding the Bill are as follows:
Proposed codification of predatory pricing should be removed
We strongly oppose the introduction of statutory, cost‑based tests for predatory pricing. The firm considers there to be no demonstrated enforcement gap justifying a per se prohibition and warns that the proposal risks deterring legitimate, pro‑competitive discounting.
In our view:
- predatory pricing is rare and already adequately addressed under the existing misuse of market power and anticompetitive conduct provisions,
- cost based tests are complex, subjective and difficult to apply across different industries (where cost structures vary significantly),
- the proposal would create inconsistency with Australia, and
- the proposal was introduced without adequate consultation.
Section 46 should be retained
We oppose the repeal of section 46, which protects legitimate business sale and purchase agreements from the cartel prohibition. Repeal would unnecessarily expose M&A transactions between competitors to criminal and civil risk, increasing uncertainty without delivering any clear benefit.
Changes to Substantial lessening of competition (SLC) test are unnecessary
The proposed amendments to the SLC test largely codify existing case law and are therefore unnecessary. If retained, they should be limited to merger control, consistent with the Australian approach, to avoid uncertainty and trans‑Tasman inconsistency.
Creeping acquisition reforms should be removed
The proposed changes to the substantive merger assessment to address "creeping acquisitions" risks chilling legitimate, efficiency-enhancing M&A activity.
Behavioural undertakings useful, but threshold too high
We support giving the NZCC the ability to accept behavioural undertakings in mergers. However, the legislative test is unnecessarily narrow, meaning that this reform may have limited effects in practice.
Merger review timeframes have limited gains in certainty
It is unclear if the proposed changes to merger review timeframes will materially improve certainty. In particular, the broad “stop the clock” powers may undermine predictability and allow reviews to be delayed for reasons outside an applicant’s control.
Expanded definition of "assets" risks overreach
Expanding the definition of “assets” by removing the qualifier “of a business” risks blurring the line between mergers and ordinary commercial contracts, potentially capturing routine transactions without justification.
Introduction of statutory notification regime is positive, but should go further
The firm supports the introduction of a statutory notification regime for low‑risk conduct but considers its scope too narrow. Russell McVeagh recommends extending the regime to cover collaboration relating to health and safety, environmental protection, supply‑chain resilience and emergency response, where competition risks are typically low and public benefits are significant.
Next steps
Public consultation on the Bill closed on Wednesday 4 February 2026. Submissions will now be referred to the Economic Development, Science and Innovation Committee, and we look forward to reviewing how the Bill progresses through the Select Committee stage.
If you have any questions about the Bill, or how its proposals may affect you or your business, please reach out to one of our experts or your regular Russell McVeagh contact.