Commodity Levies (Mussel, Oyster, and Salmon) Order 2007

  • expired
  • Commodity Levies (Mussel, Oyster, and Salmon) Order 2007: expired, on 30 July 2013, by section 13(1) of the Commodity Levies Act 1990 (1990 No 127).

Reprint
as at 30 July 2013

Coat of Arms of New Zealand

Commodity Levies (Mussel, Oyster, and Salmon) Order 2007

(SR 2007/212)

Dame Sian Elias, Administrator of the Government

Order in Council

At Wellington this 30th day of July 2007

Present:
Her Excellency the Administrator of the Government in Council

  • Commodity Levies (Mussel, Oyster, and Salmon) Order 2007: expired, on 30 July 2013, by section 13(1) of the Commodity Levies Act 1990 (1990 No 127).


Note

Changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in this reprint.

A general outline of these changes is set out in the notes at the end of this reprint, together with other explanatory material about this reprint.

This order is administered by the Ministry of Primary Industries.


Pursuant to section 4 of the Commodity Levies Act 1990 (as applied by section 305 of the Fisheries Act 1996), Her Excellency the Administrator of the Government, acting on the advice and with the consent of the Executive Council, makes the following order.

Order

1 Title
  • This order is the Commodity Levies (Mussel, Oyster, and Salmon) Order 2007.

2 Commencement
  • This order comes into force on 1 September 2007.

3 Interpretation
  • In this order, unless the context otherwise requires,—

    aquaculture activities means the breeding, hatching, cultivating, rearing, or ongrowing of fish, aquatic life, or seaweed for harvest

    aquaculture industry means aquaculture activities concerned with the farming of mussels, oysters, or salmon

    company means the industry organisation that, on the commencement of this order, is registered as New Zealand Aquaculture Limited and trades as Aquaculture New Zealand

    customary marine title has the meaning given in section 9(1) of the Marine and Coastal Area (Takutai Moana) Act 2011

    declared port price means the price determined for each species under clause 8(2)

    fish farmer has the meaning it is given in section 2(1) of the Fisheries Act 1996

    greenweight has the meaning it is given in section 2(1) of the Fisheries Act 1996

    GST means goods and services tax payable under the Goods and Services Tax Act 1985

    levy means the levy imposed by clause 4

    levy collector means, as the case may be,—

    • (a) a licensed fish receiver referred to in clause 6(1); or

    levy money means the money paid under this order as a levy

    levy year means a period of 12 months starting on 1 September of each year and ending on 31 August of the following year

    licensed fish receiver means a holder of a fish receiver licence granted under the Fisheries (Licensed Fish Receivers) Regulations 1997

    mediator means a person appointed under clause 21 to assist with the resolution of any dispute between parties

    mussel

    • (a) means GreenshellTM mussel, a shellfish of the species Perna canaliculus (green-lipped mussel); but

    • (b) excludes mussel spat (mussels less than 40 mm long)

    ordinary resolution means a resolution that is approved by a simple majority of the votes of the shareholders entitled to vote and voting on the question

    oyster

    • (a) means the mollusc Crassostrea gigas (Pacific oyster); but

    • (b) does not include oyster spat (oysters less than 37 mm long)

    relative dollar value means the greenweight tonnage of mussels, oysters, or salmon harvested for sale by fish farmers, multiplied by the declared port price for the relevant species

    sale has the same meaning as in section 2(1) of the Fisheries Act 1996, and selling has a corresponding meaning

    salmon

    • (a) means fish of the species Oncorhynchus tshawytscha (chinook or quinnat salmon); but

    • (b) does not include salmon fingerlings that are harvested, whether or not on-sold, for the purpose of transferring them in their live state to another fish farm or location.

    Clause 3 customary marine title: inserted, on 1 April 2011, by section 128 of the Marine and Coastal Area (Takutai Moana) Act 2011 (2011 No 3).

Levy imposed

4 Levy imposed
  • (1) A levy is imposed on all mussels, oysters, and salmon harvested for sale by a fish farmer.

    (2) The levy is payable to the company.

Payment of levy

5 Primary responsibility for paying levy
  • The person who is primarily responsible for paying the levy is the person who harvests and sells mussels, oysters, or salmon, as the case may be.

6 Licensed fish receiver to pay levy
  • (1) In the case of a fish farmer who harvests and sells mussels, oysters, or salmon to a licensed fish receiver, the licensed fish receiver—

    • (a) must pay the levy, and any GST payable on the levy, to the company; and

    • (b) may recover from the seller the amount of the levy, and any GST payable on the levy, by reducing the amount otherwise payable to the seller for the mussels, oysters, or salmon.

    (2) A licensed fish receiver is not entitled to receive a collection fee for paying the levy.

    (3) In the case of a fish farmer who harvests mussels, oysters, or salmon but sells the product other than to a licensed fish receiver, the fish farmer must pay the levy and any GST payable on the levy directly to the company.

Rate of levy

7 Levy to be paid at single rate
  • (1) The levy is to be paid at a single rate.

    (2) However, a different rate may be set for each of the 3 species covered by this order.

8 Maximum rate of levy
  • (1) The maximum rate of the levy for mussels, oysters, and salmon is 2% of the relative dollar value of the mussels, oysters, or salmon (plus GST).

    (2) The company must determine the declared port price for mussels, oysters, and salmon using the average port price (excluding GST) paid or likely to be paid for mussels, oysters, and salmon in each 12-month period of the 3 years before the levy year to which the levy relates.

Calculation of levy

9 Basis for calculation of levy
  • (1) The levy payable in a levy year must be calculated on the basis of the greenweight of mussels, oysters, or salmon harvested for sale by a fish farmer.

    (2) The levy must be calculated on the basis of—

    • (a) a generic levy; and

    • (b) a species-specific levy.

10 Calculation of generic levy
  • The generic levy referred to in clause 9(2)(a) must be calculated for each species covered by this order as follows:

      

    a × b

      
      

    c

      

    where—

    • a is the total generic levy for a year; and

    • b is the share of the total generic levy apportioned to that species; and

    • c is the total tonnage for that species in the relevant year.

11 Calculation of species-specific levy
  • The species-specific levy referred to in clause 9(2)(b) must be calculated as follows:

      

    x

      
      

    y

      

    where—

    • x is the total amount of expenditure proposed by the company for each species covered by this order; and

    • y is the annual tonnage estimated by the company for each species.

12 Company must fix actual rate of levy
  • (1) The company must fix the actual rate of the levy for a levy year at a general meeting held before the beginning of the levy year, in accordance with the procedures set out in the company's constitution.

    (2) If the company does not fix the actual rate of the levy in accordance with subclause (1), the levy for that year is payable at the rate last fixed under subclause (1).

    (3) To avoid doubt, the actual levy rate for the levy year beginning on the commencement of this order is as follows:

    Levy rate
    ($ per greenweight tonne)
    Mussels
    ($)
    Oysters
    ($)
    Salmon
    ($)
    Generic levy rate3.7418.1313.54
    Species-specific levy rate5.055.400.00
    Total levy rate8.7923.5413.54

Notification

13 Notification of levy rate
  • Not later than 14 days after the rate of the levy for a levy year is fixed under clause 12(1), the company must give written notice of that rate and the date on which it takes effect to—

    • (a) all fish farmers; and

    • (b) all relevant licensed fish receivers.

Time for payment of levy and returns

14 Time when levy must be paid
  • The due date for the payment of levies is,—

    • (a) if the levy is payable by a licensed fish receiver, the 20th day of the month following supply of mussels, oysters, or salmon to the licensed fish receiver; or

    • (b) if the levy is payable by a fish farmer, the 20th day of the month after the mussels, oysters, or salmon are sold.

Expenditure of levy money by company

15 Company to spend levy money
  • The company must spend or (pending its expenditure) invest all levy money paid to it, in accordance with its annual budget and business plan approved by shareholders at a general meeting of the company.

16 Purposes for which levy money to be spent
  • The company must spend the levy money for the purposes of developing and managing the aquaculture industry, including, but not limited to,—

    • (a) promoting aquaculture industry activities and market development plans; and

    • (b) research, including biological, environmental, and market research; and

    • (c) public relations and advocacy activities associated with the aquaculture industry; and

    • (d) trade mark and patent searches, applications, and protection; and

    • (e) iwi consultation and promotion of iwi participation in the aquaculture industry; and

    • (f) developing and maintaining 1 or more codes of practice; and

    • (g) protection of property rights, including by making submissions in relation to—

      • (ii) claims made under section 94 of the Marine and Coastal Area (Takutai Moana) Act 2011 for recognition of a protected customary right or customary marine title; and

      • (iii) applications or claims under the Crown Minerals Act 1991 relating to a part of the seabed that is the subject of an application for a coastal permit for aquaculture activities or to exploration or mining of the seabed in an area where aquaculture activities are permitted; and

    • (h) administering the company's approved annual activities and legal responsibilities, including the collection and management of levies; and

    • (i) quality assurance and water quality; and

    • (j) environmental risk management and biosecurity.

    Clause 16(g)(ii): substituted, on 1 April 2011, by section 128 of the Marine and Coastal Area (Takutai Moana) Act 2011 (2011 No 3).

Record-keeping and information requirements

17 Responsibilities of levy collectors
  • (1) Every levy collector must keep records, in the form approved by the company, that must include—

    • (a) the greenweight of the mussels, oysters, or salmon on which the levy is imposed; and

    • (b) the levies paid to the company; and

    • (c) the name of the fish farmer from whose fish farm the mussels, oysters, or salmon are harvested; and

    • (d) the unique identifier of that fish farm; and

    • (e) the date of the harvest.

    (2) A levy collector must—

    • (a) send a copy of the required records to the company, together with the levy payment, in accordance with clause 14; and

    • (b) retain a copy of the records for 7 years after the end of the levy year to which they relate.

18 Company to keep records
  • (1) The company must, for each levy year, keep the following records in respect of each species:

    • (a) each amount of levy money paid to it and, in relation to each amount,—

      • (i) the day on which it was received; and

      • (ii) the person who paid it; and

    • (b) how, if at all, and when it invested any levy money paid to it; and

    • (c) how and when it spent all levy money.

    (2) The company must retain its records for at least 7 years after the end of the levy year to which they relate.

19 Confidentiality of information
  • (1) No officer, employee, or agent of the company may disclose any commercially sensitive information obtained, or obtained as a result of actions taken,—

    • (a) under this order; or

    (2) Subclause (1) does not prevent the disclosure of information—

    • (a) to another officer, employee, or agent of the company; or

    • (b) with the consent of every fish farmer and licensed fish receiver to whom the information relates; or

    • (c) for statistical or research purposes, if the information is in a form that does not identify any person; or

    • (d) obtained from a ballot held before the commencement of this order, if the information is in a form that does not identify any fish farmer or licensed fish receiver to whom the information relates; or

    • (e) that is required by law.

    (3) Subclause (1) does not affect or prevent the disclosure of information for the purposes of—

    • (a) enforcing this order, including collection of the levy; or

    • (b) complying with section 17(1) or 25 of the Commodity Levies Act 1990 (as applied by section 305 of the Fisheries Act 1996); or

    • (c) giving evidence in any legal proceedings taken under or in relation to this order.

Conscientious objectors

20 Conscientious objectors
  • (1) A fish farmer or a licensed fish receiver who objects on conscientious or religious grounds to paying an amount of levy in the manner provided for in this order may pay the amount to the chief executive of the department of State responsible for the administration of this order.

    (2) The chief executive must ensure that the amount of the levy is paid to the company.

Mediation of disputes

21 Appointment of mediator
  • (1) This clause applies if there is a dispute about—

    • (a) whether a person is required to pay the levy; or

    • (b) the amount of levy a person is required to pay.

    (2) Any party to a dispute may ask the President of the Arbitrators and Mediators Institute of New Zealand Incorporated to appoint a person to organise and preside at a conference of the parties for the purpose of resolving the dispute by mediation.

    (3) If an appointment of a mediator is made under subclause (2), the appointment ends if—

    • (a) the parties to the dispute resolve it by agreement; or

    • (b) the dispute is resolved under clause 29.

22 Remuneration of mediator
  • (1) A mediator is to be paid remuneration (by way of fees and allowances) agreed to by the parties to the dispute.

    (2) If the parties to the dispute cannot agree on the mediator's remuneration, the President of the Arbitrators and Mediators Institute of New Zealand Incorporated (or a person authorised by the President) must—

    • (a) fix an amount or several amounts to be paid to the mediator as remuneration; and

    • (b) specify the amount (if any) that each party must pay.

    (3) Each party must pay to the mediator the amount fixed by the President (or authorised person) and specified as an amount to be paid by that party.

23 Conference to resolve dispute
  • (1) A mediator may organise and preside at 1 or more conferences between the parties to a dispute to try to resolve the dispute.

    (2) Every conference is to be held on a day, and at a time and place, fixed by the mediator and notified in writing to the parties.

24 Conference to be held in private
  • Only the mediator and the parties to a dispute may attend a conference, unless clause 25 applies.

25 Representatives
  • A mediator may allow a representative of any party to a dispute to attend a conference, if the mediator is satisfied that it is appropriate to do so in all the circumstances.

26 Right to be heard
  • The following persons may be heard at a conference:

    • (a) every party to the dispute; and

    • (b) every representative of a party allowed by the mediator to attend the conference.

27 Evidence
  • (1) A mediator may hear and take into account any relevant evidence or information, whether or not it would be admissible in a court of law.

    (2) A mediator may, on the mediator's own initiative, seek and receive any evidence, and make any investigations and inquiries, that the mediator thinks desirable to resolve a dispute.

    (3) A mediator may require any person giving evidence at a conference to verify the evidence by statutory declaration.

28 Settlement agreement
  • (1) If a resolution is reached on the whole or part of a dispute in the course of, or as a result of, a conference convened under clause 21, the terms of the agreement must be recorded in a settlement agreement.

    (2) A settlement agreement is binding on the parties and may be enforced in a court of competent jurisdiction.

29 Determination of dispute in certain cases
  • (1) Subsection (2) applies if—

    • (a) a dispute is not resolved in the course of mediation under clause 23, whether or not the parties to the dispute have conferred directly; and

    • (b) the mediator believes that the parties to the dispute are unlikely to resolve the dispute.

    (2) The mediator may, with or without the consent of the parties to the dispute,—

    • (a) terminate the mediation process; and

    • (b) determine the dispute.

    (3) If the mediator determines a dispute under subclause (2), the mediator must give each party written notice of that determination and the reasons for it.

30 Costs of mediation
  • Each party to a dispute must pay its own costs in relation to a mediation entered into under clause 23 or a determination made under clause 29.

31 Appeal to District Court
  • (1) A party to a dispute who is dissatisfied with a determination made under clause 29 may appeal to a District Court against the determination.

    (2) The appeal must be brought by the filing of a notice of appeal—

    • (a) within 28 days after the determination is made; or

    • (b) within any longer time that a District Court Judge allows.

    (3) The Registrar of the court must—

    • (a) fix the time and place for the hearing of the appeal; and

    • (b) notify the time and place to the appellant and the other parties to the dispute; and

    • (c) serve a copy of the notice of appeal on every other party to the dispute.

    (4) Every party to the dispute may appear and be heard at the hearing of the appeal.

    (5) The District Court may confirm, vary, or reverse the determination made under clause 29.

    (6) The filing of a notice of appeal does not operate as a stay of any process for the enforcement of that determination.

Revocation

32 Revocation
  • (1) The Commodity Levies (Green-lipped Mussel) Order 2001 (SR 2001/280) is revoked.

    (2) However, levies imposed under that order up to and including 31 August 2007 continue to be due and payable as if that order had not been revoked.

Diane Morcom,
Clerk of the Executive Council.


Issued under the authority of the Acts and Regulations Publication Act 1989.

Date of notification in Gazette: 2 August 2007.


Contents

  • 1General

  • 2Status of reprints

  • 3How reprints are prepared

  • 4Changes made under section 17C of the Acts and Regulations Publication Act 1989

  • 5List of amendments incorporated in this reprint (most recent first)


Notes
1 General
  • This is a reprint of the Commodity Levies (Mussel, Oyster, and Salmon) Order 2007. The reprint incorporates all the amendments to the order as at 30 July 2013, as specified in the list of amendments at the end of these notes.

    Relevant provisions of any amending enactments that contain transitional, savings, or application provisions that cannot be compiled in the reprint are also included, after the principal enactment, in chronological order. For more information, see http://www.pco.parliament.govt.nz/reprints/ .

2 Status of reprints
  • Under section 16D of the Acts and Regulations Publication Act 1989, reprints are presumed to correctly state, as at the date of the reprint, the law enacted by the principal enactment and by the amendments to that enactment. This presumption applies even though editorial changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in the reprint.

    This presumption may be rebutted by producing the official volumes of statutes or statutory regulations in which the principal enactment and its amendments are contained.

3 How reprints are prepared
  • A number of editorial conventions are followed in the preparation of reprints. For example, the enacting words are not included in Acts, and provisions that are repealed or revoked are omitted. For a detailed list of the editorial conventions, see http://www.pco.parliament.govt.nz/editorial-conventions/ or Part 8 of the Tables of New Zealand Acts and Ordinances and Statutory Regulations and Deemed Regulations in Force.

4 Changes made under section 17C of the Acts and Regulations Publication Act 1989
  • Section 17C of the Acts and Regulations Publication Act 1989 authorises the making of editorial changes in a reprint as set out in sections 17D and 17E of that Act so that, to the extent permitted, the format and style of the reprinted enactment is consistent with current legislative drafting practice. Changes that would alter the effect of the legislation are not permitted.

    A new format of legislation was introduced on 1 January 2000. Changes to legislative drafting style have also been made since 1997, and are ongoing. To the extent permitted by section 17C of the Acts and Regulations Publication Act 1989, all legislation reprinted after 1 January 2000 is in the new format for legislation and reflects current drafting practice at the time of the reprint.

    In outline, the editorial changes made in reprints under the authority of section 17C of the Acts and Regulations Publication Act 1989 are set out below, and they have been applied, where relevant, in the preparation of this reprint:

    • omission of unnecessary referential words (such as of this section and of this Act)

    • typeface and type size (Times Roman, generally in 11.5 point)

    • layout of provisions, including:

      • indentation

      • position of section headings (eg, the number and heading now appear above the section)

    • format of definitions (eg, the defined term now appears in bold type, without quotation marks)

    • format of dates (eg, a date formerly expressed as the 1st day of January 1999 is now expressed as 1 January 1999)

    • position of the date of assent (it now appears on the front page of each Act)

    • punctuation (eg, colons are not used after definitions)

    • Parts numbered with roman numerals are replaced with arabic numerals, and all cross-references are changed accordingly

    • case and appearance of letters and words, including:

      • format of headings (eg, headings where each word formerly appeared with an initial capital letter followed by small capital letters are amended so that the heading appears in bold, with only the first word (and any proper nouns) appearing with an initial capital letter)

      • small capital letters in section and subsection references are now capital letters

    • schedules are renumbered (eg, Schedule 1 replaces First Schedule), and all cross-references are changed accordingly

    • running heads (the information that appears at the top of each page)

    • format of two-column schedules of consequential amendments, and schedules of repeals (eg, they are rearranged into alphabetical order, rather than chronological).

5 List of amendments incorporated in this reprint (most recent first)
  • Commodity Levies Act 1990 (1990 No 127): section 13(1)

    Marine and Coastal Area (Takutai Moana) Act 2011 (2011 No 3): section 128