As an example, on Tuesday Dunedin MP David Clark, with his Commerce Minister’s hat on, led off the first reading debate of the Commerce Amendment Bill.
This is a law change Dr Clark inherited from previous Commerce Minister Kris Faafoi, but the start of the process predates the Labour Government; back in 2017 when Waitaki MP Jacqui Dean was Commerce Minister, she asked officials to have a look at section 36 of the Commerce Act to see if it was fit for purpose.
The number means little to most, but if you have ever complained you are forced to shop somewhere or buy from someone because there was no choice, that is what section 36 is all about — how to stop firms with a substantial degree of market power from taking unfair advantage of their position.
So, possibly an important piece of consumer law, but there is a belief that the capacity provided by the clause offers regulators little capability in the real world.
That is because courts, whose job it is to figure out what the law actually means and then apply it, do so through a "takes advantage test".
Such tests are common in law, and if a lawyer can convincingly argue that the fact pattern of a case approximates the requirements of the test then they are a long way down the road towards winning the case for their client.
In this instance, the test includes that there be a "causal connection" between a firm’s market power and its conduct — in other words, because Widget Co has cornered the widget market it therefore could and did stop Widget Inc from setting up shop, and without having that market dominance Widget Co would not have kneecapped Widget Inc.
Australia used to have a very similar law but the noisy neighbours felt it was not providing enough clout to stamp out anti-competitive behaviour such as exclusive deals with essential suppliers to an industry, refusal to supply raw materials to potential competitors, or pricing rivals out of the market.
New Zealand’s business law tends to follow where Australia goes due to interconnectedness of the two economies, hence the incentive to follow suit.
Dr Clark’s interest in the matter dates back to his backbench days when he was his party’s economic development spokesman.
At the time he advocated for the Australian approach — its takes advantage test is an “effects test”, which asks whether the actions of Widget Co are likely to substantially lessen competition from Widget Inc and other rival firms.
Whether this change seems sensible or not rather depends, unsurprisingly, on the size of the business approached for its viewpoint — big firms generally like things just as they are, small firms are usually all for change.
"That test will actually, I think, be more effective at ensuring that we do have a competitive market," Dr Clark said.
"It will make sure that we get the benefits of that in terms of both the clarity for business, so they can maximise their opportunity, but also the benefits for consumers that accrue from having good competition in the market place."
National is taking a dollar each way on the Bill — while the party is an enthusiastic supporter of a competitive market, the party also suspects the unwritten purpose of the Bill is to make it easier for the Commerce Commission to succeed in competition law prosecutions.
Its commerce spokesman Todd McClay said as much, adding for good measure that the law change could lead to more regulation, greater rules, more court cases and more investigations.
That said, National voted for the Bill at first instance: it likes to call itself the party of business, and wants to see which side of the argument industry comes down on before it cheers or condemns the proposed law change.
Expect plenty of competition to come, as each party tries to argue its test will have the desired effect.
Dunedin National list MP Michael Woodhouse was perhaps too truthful for his own good during the second reading of the Financial Market Infrastructures Bill on Tuesday.
"I've looked at this Bill and I have tried and tried and tried and I cannot make head nor tail of it," he confessed to the House.
To be fair, it was not entirely clear that Finance Minister Grant Robertson knew the minutiae of his Bill either, trying to explain it through a plumbing metaphor which only added to the layer of mystery.
ROFL
"The MCMC accreditation body can accredit and audit a person as a modular component manufacturer certification body," Ms Brooking enthused.
"So that is an MCMCB. So that's two steps, we're going to get to some more acronyms involving MCs, But the point here is that the MCMC accreditation body has some powers over the MCMC certification body."
At which point an unidentified MP asked if MC Hammer was going to make an appearance.
The answer was no, but Ms Brooking did embark on an examination of section 272ZG of the Bill, which involved much more excitement — and many more acronyms.
Saying what they were would be TMI though, so TTFN.
