By COLIN JAMES
The Government's Commerce Act changes, to be tabled this week, will not now reverse the onus of proof in cases of collusive or anti-competitive behaviour.
An Alliance proposal to do this was included in a Government outline of the intended changes issued in April.
But after representations by business leaders, this proposal was "relitigated," a senior Government source has told the Herald.
Reversing the onus of proof would deem a company guilty of collusive or anti-competitive behaviour unless it could prove otherwise.
Business leaders feared this could be used malevolently by competitors.
Trevor Mallard, then acting Minister of Commerce, in April proposed reversal of the onus of proof as one of two options to be put to Parliament's commerce committee on the knotty issue of establishing a "purpose" by a company to indulge in anti-competitive behaviour.
The other option was to adopt the equivalent of the Australian provision that purpose may be inferred from "relevant conduct and circumstances."
This is in line with a Ministry of Commerce discussion document issued last year, which noted the difficulty of proving intention to collude and argued that such cases might instead be decided by an "effects" test - if prices and practices moved in tandem, as in the oil industry, collusion might be inferred.
This was rejected by National's Commerce Minister, Max Bradford, in his proposed changes, which have been before the commerce committee for nearly a year.
Business has also expressed fears about a Government proposal to include a penalty of 10 per cent of turnover for breaching the act. It was felt this could be applied to the parent or holding company of an offender and so be disproportionate to the offence.
The Government's proposals essentially align competition law with Australia's, where the tests for mergers, takeovers and anti-competitive behaviour are tighter than in New Zealand.
It also proposes wider powers for the Commerce Commission.
Government rethinking changes to competition law
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