Dairy Industry Restructuring (New Sunset Provisions) Amendment Act 2011

Coat of Arms of New Zealand

Dairy Industry Restructuring (New Sunset Provisions) Amendment Act 2011

Public Act2011 No 20
Date of assent17 May 2011
Commencementsee section 2

The Parliament of New Zealand enacts as follows:

1  Title
  • This Act is the Dairy Industry Restructuring (New Sunset Provisions) Amendment Act 2011.

2  Commencement
  • This Act comes into force on the day after the date on which it receives the Royal assent.

3  Principal Act amended
4  Offences
  • Section 118(1) is amended by adding ; or and also by adding the following paragraph:

    • (c) fails, without reasonable excuse, to comply with any requirement of section 147(4).

5  New sections 147 to 149 substituted
  • Sections 147 to 149 are repealed and the following sections substituted:

    147 Minister to certify that market share thresholds met
    • (1) Subsection (2) applies if the Minister is satisfied, on the basis of the information reported to the Minister under subsection (4), that independent processors have, directly or indirectly, collected—

      • (a) 20% or more of milksolids on or from dairy farms in the North Island of New Zealand in a season; or

      • (b) 20% or more of milksolids on or from dairy farms in the South Island of New Zealand in a season.

      (2) If this subsection applies, the Minister must, as the case may be, sign a certificate that states that—

      • (a) the market share threshold for the North Island of New Zealand has been met; or

      • (b) the market share threshold for the South Island of New Zealand has been met; or

      • (c) the market share thresholds for the North Island of New Zealand and the South Island of New Zealand have been met.

      (3) A certificate signed by the Minister stating that 1 or both market share thresholds have been met—

      • (a) is conclusive evidence of that fact; and

      • (b) must be published—

        • (i) in the Gazette; and

        • (ii) on the Ministry's Internet site.

      (4) For the purposes of subsection (1), new co-op and each independent processor—

      • (a) must, in the form prescribed by the chief executive by notice in the Gazette and published on the Ministry's Internet site, but subject to any exemptions granted in the notice, keep a record of the total amount in kilograms of milksolids collected, directly or indirectly, on or from dairy farms in—

        • (i) the North Island of New Zealand in each season; and

        • (ii) the South Island of New Zealand in each season; and

      • (b) must, if requested by the Minister, provide the information specified in paragraph (a) to the Minister,—

        • (i) in the case of a season that has ended, within 30 days after the request; and

        • (ii) in the case of a season that is yet to end, within 30 days after the end of the season.

      (5) For the purposes of this section, dairy farm means a farm in New Zealand that produces milk from dairy cows as a business or part of a business.

    148 Subpart ceases to apply to island that meets its market share threshold
    • (1) If the Minister has signed a certificate under section 147, the Minister must, as soon as practicable and in consultation with the Minister of Commerce,—

      • (a) request a report on the state of competition in the New Zealand dairy industry from—

        • (i) the Commerce Commission; or

        • (ii) any other relevant government agency; and

      • (b) determine the terms of reference for the report; and

      • (c) publish the terms of reference on the Ministry's Internet site.

      (2) The terms of reference must, in addition to any other matters that the Minister considers appropriate,—

      • (a) specify the date by which the report must be completed, which must be a date within 365 days after the date of a request made under subsection (1)(a); and

      • (b) specify the scope of the report, having regard to—

        • (i) the structure of the New Zealand dairy industry; and

        • (ii) any specific competition concerns in any specified New Zealand dairy markets; and

      • (c) specify the person or persons in the dairy industry who must be consulted and the method of consultation; and

      • (d) require the Commerce Commission or other relevant government agency (as the case may be) to ascertain—

        • (i) the state of competition that exists in the New Zealand dairy industry; and

        • (ii) if the Commerce Commission or other relevant government agency (as the case may be) determines that the state of competition in the New Zealand dairy industry or any specified New Zealand dairy market or markets is insufficient,—

          • (A) whether either or both of the market share thresholds specified in section 147 should be reset; and

          • (B) the options for a transition pathway to deregulation (if any) and whether a particular option or a set of options (if any) should be pursued.

      (3) The Minister must, within 90 days after receiving the report, give, in the Gazette and on the Ministry's Internet site, notice setting out the Minister's response to the report, including (but not limited to) whether the Minister intends to promote the enactment of legislation that resets either or both of the market share thresholds specified in section 147 or to promote the adoption of measures that provide a transition pathway to deregulation, or to promote both.

      (4) Regardless of the Minister's response to the report, if notice is given under subsection (3), the Governor-General must, by Order in Council, declare,—

      • (a) in the case of one island meeting its market share threshold under section 147, that this subpart (except sections 104, 105, and 110 to 146) ceases to apply to that island; or

      • (b) in the case of both islands meeting their market share thresholds under section 147 (including the case in which the other island meets its market threshold after notice is given in respect of an island under subsection (3) but before the Order in Council is made), that this subpart (except section 134) ceases to apply to both islands.

      (5) If the Governor-General makes an Order in Council under subsection (4)(a) and the Minister subsequently certifies that the other island has also met its market share threshold under section 147, the Governor-General must, by Order in Council, declare that this subpart (except section 134) ceases to apply to both islands.

      (6) An Order in Council made under subsection (4) or (5)—

      • (a) must specify the date on which this subpart (apart from any exceptions) ceases to apply to the relevant island or islands (as the case may be), which may be no later than the end of the season that begins after the date on which the Order in Council is made; and

      • (b) must come into force on or before the date specified in paragraph (a); and

      • (c) may not be amended or revoked (except under section 16 of the Acts and Regulations Publication Act 1989).

      (7) Any failure to comply with subsection (2) or (3), or any error or omission in the report produced by the Commerce Commission or other relevant government agency (as the case may be), does not affect the validity of an Order in Council made under subsection (4) or (5).

      (8) To avoid doubt,—

      • (a) if the Minister requests a report from the Commerce Commission under subsection (1), the Commerce Commission may exercise any of the powers specified in the provisions listed in section 145 to determine the state of competition in the New Zealand dairy industry:

      • (b) consultation, other than the consultation specified in subsection (1) or (2), is not required:

      • (c) the report and its contents are not binding on the Crown:

      • (d) if, in relation to subsection (4)(b) or (5), the other island meets its market share threshold at any time after the Minister requests a report under subsection (1), a new report in relation to the other island is not required:

      • (e) nothing in this section is intended to—

        • (i) create any rights or protections in relation to any person or group of persons; or

        • (ii) confer any rights or protections on any person or group of persons.

      (9) For the purposes of this section, other relevant government agency means any agency of the Crown (other than the Commerce Commission), whether a department, a corporation, a Crown entity, a Crown Research Institute, or another organisation or instrument.

    148A Report required if not requested before 1 June 2015
    • (1) This section applies if the Minister has not requested a report under section 148 before 1 June 2015.

      (2) If this section applies,—

      • (a) the Minister must, as soon as practicable and in consultation with the Minister of Commerce,—

        • (i) request a report under section 148(1)(a); and

        • (ii) comply with section 148(1)(b) and (c), (2), and (3); and

      • (b) section 148(8)(a) to (c) and (e) apply in respect of the report referred to in paragraph (a).

    148B Procedure where market share threshold is met after report requested under section 148A
    • (1) This section applies if the Minister has requested a report under section 148A and subsequently signs a certificate under section 147.

      (2) If the report requested under section 148A—

      • (a) has not been completed before the Minister signs the certificate under section 147,—

        • (i) the report must be completed in accordance with section 148A; and

        • (ii) section 148(4) to (8) apply, with any necessary modifications:

      • (b) has been completed before the Minister signs the certificate under section 147,—

        • (i) the Minister may not request another report under section 148 or 148A; and

        • (ii) the Minister must, within 90 days after signing the certificate, give notice, in the Gazette and on the Ministry's Internet site, as to whether the Minister intends to promote the enactment of legislation that resets either or both of the market share thresholds specified in section 147 or to promote the adoption of measures that provide a transition pathway to deregulation, or to promote both; and

        • (iii) section 148(4) to (8) apply, with any necessary modifications.

    149 Subpart expires if both islands meet their market share thresholds
    • (1) This subpart (except section 134) expires on the date that this subpart—

      • (a) ceases to apply to the North Island of New Zealand; and

      • (b) ceases to apply to the South Island of New Zealand.

      (2) Section 134 expires 2 years after the date that this subpart ceases to apply to both the North Island of New Zealand and the South Island of New Zealand.

      (3) Regulations made under section 115 or 116 are revoked on the expiry of this subpart (except section 134).


Legislative history

6 October 2010Introduction (Bill 223–1)
14 October 2010First reading and referral to Primary Production Committee
22 February 2011Reported from Primary Production Committee (Bill 223–2)
3 May 2011Second reading
11 May 2011Committee of the whole House
Third reading
17 May 2011Royal assent

This Act is administered by the Ministry of Agriculture and Forestry.