Released under the
Official Information Act 1982
Released under the
Official Information Act 1982
Released under the
Official Information Act 1982
Lay Member of the High Court under the
Commerce Act 1986 Vacancies
The Ministry of Business, Innovation and Employment is seeking candidates who wish to be considered
for appointment to the pool of lay members under the
Commerce Act 1986 for competition and
regulatory cases. Multiple candidates may be appointed as a result of this search.
This is an ‘as required’ position. Once appointed to the pool, lay members may be considered for
appointment to sit with a High Court judge to determine specified cases and appeals from Commerce
Commission determinations. A lay member becomes a member of the Court for the purposes of the case.
Lay members play a key role in ensuring that expert evidence on complex competition or regulation
issues is properly understood, tested and assessed by the Court. A lay member must take an oath to
faithfully and impartially perform the duties of their office.
At this time, the Ministry is looking for candidates who have expertise relevant to competition or
regulatory cases or both. In particular, candidates with one of the following specialist skills and expertise
are sought:
Competition cases
expertise and experience in regulatory economic analysis and/or competition economic analysis, and
an understanding of a range of methods, models and techniques engaged in economic analysis in
competition and/or regulatory settings; and/or
Regulatory cases
Released under the
expertise and experience in the theory or practice of determining matters required to be covered by
input methodologies under section 52T of the
Commerce Act 1986 and section 176 of the
Telecommunications Act 2001. This includes the cost of capital, valuation of assets (including
depreciation and treatment of revaluations), allocation of common costs (including between
activities, businesses, consumer classes and geographic areas), treatment of taxation, pricing
Official Information Act 1982
methodologies and regulatory processes and rules.
The following attributes are also relevant to this position:
an understanding of the role of the Court, with experience in giving expert evidence before a court or
tribunal being desirable; and
similar attributes to those required for judicial appointments, relating to qualities of character,
personal technical skills and an appreciation of diversity.
An absence of any conflicts of interest and some evidence of flexibility in scheduling to be available for
court cases may also be taken into account.
Candidates must be willing to travel to participate in person for hearings at the relevant Court in
New Zealand.
Lay members of the Court are appointed by the Governor-General on the recommendation of the
Attorney-General after consultation with the Chief Justice and the Minister of Commerce and Consumer
Affairs.
Please note that the Ministry nominates suitable candidates to the Crown Law Office, which assists the
Attorney-General with the consultation and documentation required for the appointment process. The
Ministry of Justice will also be engaged for the purposes of vetting candidates and checking for conflict of
interest for appointments to specific cases.
Candidates wishing to apply for this position should enclose a copy of their CV and submit a cover letter
outlining why they wish to be a lay member of the High Court under the
Commerce Act 1986. Please refer
to the attached position description for more details.
For enquiries about the position, please contact
[email address].
Applications close at
8:00 am on Thursday 19 August 2021.
Released under the
Official Information Act 1982
Lay Member of the High Court under the Commerce Act 1986
Position description
The pool of lay members for High Court cases
Section 77 of the Commerce Act 1986 provides for the appointment of lay members of the High
Court. Lay members may be cal ed upon to sit with a Judge for certain competition and regulation
law matters. There is no limit on the number of lay members that may be appointed.
There are two main classes of cases for which lay members may be appointed:
Competition cases
civil enforcement proceedings related to Parts 2 (restrictive trade practices) and 3 (business
acquisitions) of the Commerce Act 1986; and
appeals from determinations of the Commerce Commission related to Part 5 (authorisations and
clearances) of the Commerce Act 1986;
Regulatory cases
appeals from input methodology1 determinations of the Commerce Commission made under
Part 4 (regulated goods or services) of the Commerce Act 1986;
appeals from input methodology determinations of the Commerce Commission made under Part
6 (fibre fixed line access services) of the Telecommunications Act 2001;
civil enforcement proceedings related to subpart 5 (regulation of dairy markets and obligations
of new co-op) of Part 2 of the Dairy Industry Restructuring Act 2001; and
civil enforcement proceedings related to Part 3 (separation of distribution from certain
generation and retailing) of the Electricity Industry Act 2010.
Lay members in the pool must have expertise that is relevant to one or both of these classes of cases.
Released under the
Before beginning the exercise of duties of their office, lay members are required to take an oath
before a Judge of the Court that they wil faithful y and impartial y perform the duties of their office.
If a lay member is appointed to a case, the lay member becomes a member of the Court for the
purposes of that case. A lay member must not sit on a case where he or she has a conflict of interest.
Roles and expectations of lay members
Official Information Act 1982
Lay members play a key role in ensuring that expert evidence on complex competition or regulation
issues is properly understood, tested and assessed by the High Court.
1 Input methodology as defined under section 52C of the Commerce Act is a description of any methodology, process, rule, or matter that
includes any of the matters listed in section 52T and that is published by the Commission under section 52W; and in relation to particular
goods or services, means any input methodology, or al input methodologies that relate to the supply, or to suppliers, of those goods and
services.
Lay Members - Position Description
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Ideal y, a lay member should work cooperatively with the Judge, advising within their area of
expertise, towards a mutual determination on matters relating to that expertise.
In any case, the decision of the Court is a decision of the majority of the members sitting, but such
majority must include the Judge (or where more than one Judge sits, the majority of Judges). If the
members present are equal y divided in opinion, the decision of the Judge (or of a majority of the
Judges) is the decision of the Court. If neither of those situations applies, the question may be
referred to the Court of Appeal for decision.
General skil s, experience and attributes required
We consider the fol owing expertise and attributes to be relevant to this position:
Knowledge or experience in industry, commerce, economics, law or accountancy. In particular:
For competition cases
o recognised expertise in regulatory economic analysis and/or competition economic
analysis, and an understanding of a range of methods, models and techniques engaged in
economic analysis in competition and/or regulatory settings;
For regulatory cases
o knowledge and experience of the regulated industries; or
o expertise and experience in the theory or practice of determining matters required to be
covered by input methodologies under section 52T of the Commerce Act 1986 and
section 176 of the Telecommunications Act 2001. This includes the cost of capital,
valuation of assets (including depreciation and treatment of revaluations), al ocation of
common costs (including between activities, businesses, consumer classes and
geographic areas), treatment of taxation, pricing methodologies and regulatory
processes and rules.
an understanding of the role of the Court, with experience in giving expert evidence before a
court or tribunal being desirable; and
similar attributes to those required for judicial appointments2, relating to qualities of character,
personal technical skil s and an appreciation of diversity.
Released under the
Term of appointment and other matters
The term of appointment of lay members may not exceed five years. While there is provision for
reappointment, there should be no expectation that a lay member wil be offered a subsequent term
on the expiry of term.
Any lay member may resign the office by notice in writing to the Minister of Commerce and
Consumer Affairs.
Official Information Act 1982
The Governor-General may terminate the appointment of a lay member for inability to perform the
functions of the office, bankruptcy, neglect of duty, or misconduct, proved to the satisfaction of the
Governor-General.
2 Crown Law, Judicial Protocol, as at April 2013 (updated April 2014), accessible at: https://www.crownlaw.govt.nz/assets/uploads/judicial-
protocol.pdf
Lay Members - Position Description
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Remuneration
The fees for lay members are determined by the Cabinet Fees Framework. Fees are only payable on
appointment to a High Court case.
Travel ing al owances and expenses are paid in New Zealand dol ars in accordance with the Fees and
Travel ing Al owances Act 1951.
The Ministry of Justice is responsible for the administration of payments to lay members.
Estimated time commitment and location of work
It is difficult to estimate the time commitment that the role entails as the position is on an
‘as required’ basis. For competition cases, ordinarily there can be one or two cases a year for which a
lay member from the pool is appointed. Appeals from regulatory determinations by the Commerce
Commission are less frequent.
There is normal y an appeals conference that is held after appeals are filed at which time estimates
wil be given of how long hearings wil take place and when they wil be heard. It would be useful for
candidates to be reasonably certain of their availability to participate in hearings, and having a
flexible schedule would be helpful.
Lay members who are based overseas, or in another part of New Zealand to the relevant Court, wil
be required to travel to participate in person for the hearings.
Appointment process
Section 77(1A) of the Commerce Act 1986 provides that lay members are appointed by the Governor-
General. In 1994, Cabinet agreed that the Attorney-General would be responsible for recommending
lay member appointments to the Governor-General in the same manner as judicial appointments.
Before making a recommendation, the Attorney-General must consult the Minister of Commerce and
the Chief Justice.
In practice:
Released under the
the Ministry of Business, Innovation and Employment (MBIE) identifies suitable candidates for
appointment as lay members, reviews CVs and contacts referees, and forwards the list of
suggested candidates to Crown Law and the Ministry of Justice;
Crown Law assists the Attorney-General with the consultation and documentation required for
the appointment process; and
the Ministry of Justice provides administration, case management and support services to the
High Court and undertakes conflict of interest checks prior to a lay member being assigned to a
particular case.
Official Information Act 1982
Before a person is appointed as a lay member to the pool, they must certify that they are not
disqualified from holding the position. Candidates are expected to complete a disclosure form and
make a statutory declaration. Candidates must also consent to MBIE forwarding that information to
Crown Law and the Ministry of Justice as part of appointment process.
Lay Members - Position Description
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Lay Member of the High Court under the Commerce Act 1986
Person specification
The Ministry of Business, Innovation and Employment is seeking candidates who wish to be
considered for appointment to the pool of lay members under the Commerce Act 1986 for
competition and regulatory cases. Multiple candidates may be appointed as a result of this search.
At this time, the Ministry is looking for candidates who have expertise relevant to competition or
regulatory cases or both. Due to COVID restrictions on travel, we are currently giving preference to
candidates residing in New Zealand, but consideration wil also be given to candidates residing in
Australia who are wil ing to travel to New Zealand if required for cases.
In particular, candidates with one of the fol owing specialist skil s and expertise are sought:
Competition cases
expertise and experience in regulatory economic analysis and/or competition economic analysis,
and an understanding of a range of methods, models and techniques engaged in economic
analysis in competition and/or regulatory settings; and/or
Regulatory cases
expertise and experience in the theory or practice of determining matters required to be covered
by input methodologies under section 52T of the Commerce Act 1986 and section 176 of the
Telecommunications Act 2001. This includes the cost of capital, valuation of assets (including
depreciation and treatment of revaluations), al ocation of common costs (including between
activities, businesses, consumer classes and geographic areas), treatment of taxation, pricing
methodologies and regulatory processes and rules.
The fol owing attributes are also relevant to this position:
Released under the
an understanding of the role of the court, with experience in giving expert evidence before a
court or tribunal being desirable; and
similar attributes to those required for judicial appointments3, relating to qualities of character,
personal technical skil s and an appreciation of diversity.
An absence of clear conflicts of interest and some evidence of flexibility in scheduling to be available
for court cases may also be taken into account.
Official Information Act 1982
3 Crown Law, Judicial Protocol, as at April 2013 (updated April 2014), accessible at: https://www.crownlaw.govt.nz/assets/uploads/judicial-
protocol.pdf
Lay Members - Position Description
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