Commodity Levies (Summerfruit) Order 2008

  • revoked
  • Commodity Levies (Summerfruit) Order 2008: revoked, on 29 September 2014, pursuant to section 13(1) of the Commodity Levies Act 1990 (1990 No 127).

Reprint
as at 29 September 2014

Coat of Arms of New Zealand

Commodity Levies (Summerfruit) Order 2008

(SR 2008/344)

Anand Satyanand, Governor-General

Order in Council

At Wellington this 29th day of September 2008

Present:
His Excellency the Governor-General in Council

  • Commodity Levies (Summerfruit) Order 2008: revoked, on 29 September 2014, pursuant to section 13(1) of the Commodity Levies Act 1990 (1990 No 127).


Note

Changes authorised by subpart 2 of Part 2 of the Legislation Act 2012 have been made in this official reprint.

Note 4 at the end of this reprint provides a list of the amendments incorporated.

This order is administered by the Ministry for Primary Industries.


Pursuant to section 4 of the Commodity Levies Act 1990, His Excellency the Governor-General, 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 (Summerfruit) Order 2008.

2 Commencement
  • This order comes into force on 2 October 2008.

    Commodity Levies (Summerfruit) Order 2008: confirmed, on 18 December 2009, by section 8(b) of the Subordinate Legislation (Confirmation and Validation) Act 2009 (2009 No 67).

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

    collection agent means a person whose business is or includes—

    • (a) buying summerfruit from a grower for resale, processing, or export; or

    • (b) selling, processing, or exporting summerfruit on behalf of a grower

    FOB value or free on board value, in relation to any summerfruit exported from New Zealand for which a customs entry is made, means the value of the summerfruit specified in the declaration in, attached to, or forming part of the customs entry (before the deduction of any costs and charges)

    grower means a person whose business is or includes producing summerfruit for commercial purposes

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

    Heinz Wattie's means the company registered on the commencement of this order as Heinz Wattie's Limited

    levy means the levy imposed by clause 4

    levy money means money paid under this order as levy

    levy year means,—

    • (a) for the first levy year, the period starting on the commencement of this order and ending on 30 September 2009; and

    • (b) for every other levy year, a period of 12 months starting on 1 October and ending on 30 September

    mediator means a person appointed under clause 24; and, in relation to a dispute, means a person appointed to resolve the dispute

    notional process value means the amount of money that, in the opinion of SNZI, the grower would have received if, immediately before the summerfruit was processed, the grower had sold it to a similar processor in the grower's locality (excluding GST and before the deduction of any costs and charges)

    processed includes bottled, canned, dehydrated, evaporated, dried, freeze-dried, frozen, juiced, pressed, or preserved,—

    • (a) whether as summerfruit or as concentrate, pulp, puree, sauce, or some other product; and

    • (b) whether alone or with other ingredients

    selling price

    • (a) means the price at which the summerfruit is sold at the first point of sale (excluding GST and before the deduction of any costs and charges); but

    • (b) if, in the opinion of SNZI, that price is not consistent with prevailing market conditions in the grower's locality, SNZI may determine that the selling price is the market value that, in the opinion of SNZI, a purchaser would have reasonably been expected to pay for the summerfruit (excluding GST and before the deduction of any costs and charges)

    summerfruit

    • (a) means apricots, cherries, nectarines, peaches, and plums; and

    • (b) includes hybrids of those fruits

    SNZI means the industry organisation known on the commencement of this order as Summerfruit New Zealand Incorporated.

    (2) If the processing of any summerfruit extends over more than a day, the summerfruit must be treated for the purposes of this order as having been processed on the day on which the processing commenced.

    (3) References in this order to summerfruit that is processed by a grower include references to summerfruit that is processed by another person for, or on behalf of, a grower.

4 Levy imposed
  • (1) A levy is imposed on summerfruit grown by growers and—

    • (a) sold within New Zealand as fresh fruit for consumption, resale, or processing; or

    • (b) processed before sale; or

    • (c) exported as fresh fruit.

    (2) The levy is payable to SNZI.

Responsibility for payment of levy

5 Growers primarily responsible for paying levy
  • The grower of summerfruit is primarily responsible for paying the levy.

6 Collection agent must pay levy and may recover it from growers
  • (1) A collection agent—

    • (a) must pay the levy (and any GST payable on it) on summerfruit—

      • (i) bought from the grower (except through another collection agent); or

      • (ii) sold, processed, or exported on the grower's behalf; and

    • (b) may recover the levy (and any GST paid in respect of it) from the grower—

      • (i) by deducting the amount of the levy (and any GST paid in respect of it) from the payment made to the grower; or

      • (ii) by recovering the amount of the levy (and any GST paid in respect of it) as a debt due from the grower.

    (2) A collection agent who pays the levy may, before paying it to SNZI, deduct from the levy a collection fee of not more than 4% of the levy (exclusive of GST) plus the GST payable by the collection agent on the fee.

Determination of levy

7 Levy payable at 2 different rates
  • The levy must be paid at 2 rates, being—

    • (a) a class 1 rate for apricots, nectarines, peaches, and plums, or hybrids of those fruits:

    • (b) a class 2 rate for cherries.

8 Maximum rate of levy
  • The maximum rate of levy that may be fixed in respect of the 2 classes of levy is,—

    • (a) for the class 1 rate, 1.75% of the selling price, of the FOB value, or of the notional process value, as the case may be:

    • (b) for the class 2 rate, 1.0% of the selling price, of the FOB value, or of the notional process value, as the case may be.

9 Basis for calculating levy
  • (1) The levy payable by a grower in a levy year must be calculated on the basis of—

    • (a) the FOB value, in the case of summerfruit that is exported unprocessed before the first point of sale:

    • (b) the notional process value, in the case of summerfruit that is processed before the first point of sale:

    • (c) the selling price, in all other cases.

    (2) If the levy is calculated on the basis of the selling price, SNZI may treat the following amounts as if they were part of the selling price:

    • (a) any other payments made to the grower by the purchaser in relation to the sale of the summerfruit:

    • (b) the value (as determined by SNZI) of any goods or services provided—

      • (i) to the grower by the purchaser in relation to the sale of the summerfruit; and

      • (ii) free of charge or below market value.

10 Returns must be supplied to SNZI to determine amount of levy
  • (1) For the purpose of determining the amount of levy payable by a grower,—

    • (a) every grower who sells, processes, or exports the grower's own summerfruit in any month must, in relation to each fruit type, provide to SNZI, with the amount of levy for the month, written notice of—

      • (i) the selling price and quantity of summerfruit sold by the grower in the month; and

      • (ii) the notional process value and quantity of summerfruit processed for sale by the grower in the month; and

      • (iii) the FOB value and quantity of summerfruit exported by the grower in the month; and

    • (b) every collection agent who buys summerfruit from a grower and sells, processes, or exports it on behalf of the grower in any month must, in relation to each fruit type, provide to SNZI, with the amount of levy for the month, written notice of—

      • (i) the full name and contact details of the grower from whom the summerfruit was bought; and

      • (ii) the quantity of summerfruit bought and sold, processed, or exported by the collection agent on behalf of the grower and the price paid for, or the value placed on, that quantity; and

      • (iii) the amount of levy collected and paid to SNZI in relation to that quantity; and

      • (iv) the amount of collection fee deducted in relation to that quantity (if any).

    (2) SNZI may request, in writing, from each grower and collection agent any other information required by SNZI for the purpose of determining the amount of the levy payable by a grower.

    (3) Every grower and collection agent must, as soon as is reasonably practicable after receiving a written request from SNZI, supply SNZI with written returns of the information requested.

11 Certain growers exempt from paying levy
  • Growers who sell summerfruit to Heinz Wattie's on contract for processing are exempt from paying the levy if—

    • (a) Heinz Wattie's imposes a research and development levy on persons selling summerfruit to it on contract for processing; and

    • (b) the rate of the research and development levy is equal to or greater than the relevant rate of levy set under this order; and

    • (c) Heinz Wattie's makes available to SNZI the research information arising from its use of the research and development levy.

12 Exemption suspended in certain circumstances
  • (1) Subclause (2) applies if SNZI is satisfied that—

    • (a) Heinz Wattie's has ceased to impose a research and development levy on persons selling summerfruit to it on contract for processing; or

    • (b) the rate of the research and development levy is less than the relevant rate of levy set under this order; or

    • (c) Heinz Wattie's has ceased to make available to SNZI the research information arising from its use of the research and development levy.

    (2) SNZI may, after giving Heinz Wattie's a reasonable opportunity to be heard on the matter, suspend the exemption referred to in clause 11.

    (3) If the exemption is suspended,—

    • (a) SNZI must give written notice of the suspension and the date on which, in accordance with subclause (4), it takes effect; and

    • (b) clause 11 ceases to apply on and from the date specified in the notice.

    (4) A suspension of the exemption takes effect on the first day of the month specified by SNZI for the purpose (which must be a month that starts at least 7 days after the date of publication of the notice in the Gazette under subclause (7)(d)).

    (5) SNZI may revive the exemption with effect on and from the first day of any month if SNZI is satisfied that—

    • (a) Heinz Wattie's has imposed a research and development levy on persons selling summerfruit to it on contract for processing; and

    • (b) the rate of the research and development levy is equal to or greater than the relevant rate of levy set under this order; and

    • (c) Heinz Wattie's has made or will make available to SNZI the research information arising from its use of the research and development levy.

    (6) If the exemption is revived,—

    • (a) SNZI must give written notice of its revival and the date on which it takes effect; and

    • (b) clause 11 applies on and from the date specified in the notice.

    (7) Written notice required under subclause (3) or (6) must be given—

    • (a) to Heinz Wattie's; and

    • (b) to the extent practicable (whether by newsletter or other means), to growers who SNZI considers will be affected by the suspension; and

    • (c) in The Orchardist or SummerFruit: The Journal of Summerfruit New Zealand; and

    • (d) in the Gazette published not earlier than the dates of the notices given under paragraphs (a) and (b).

13 SNZI must fix actual rates of levy
  • (1) SNZI must fix the actual rates of the levy for the levy year ending on 30 September 2009 in accordance with its rules.

    (2) For each subsequent levy year, SNZI must fix the actual rates of the levy—

    • (a) at an annual general meeting of SNZI; or

    • (b) at a special general meeting.

    (3) If SNZI does not fix the actual rates of the levy under subclause (2) before the beginning of a levy year, the levy for that year is payable at the rates last fixed under this clause.

14 Notification of rate of levy
  • (1) As soon as practicable after fixing the rates of levy for a levy year, SNZI must notify the rates of the levy—

    • (a) in the Gazette; and

    • (b) in The Orchardist and SummerFruit: The Journal of Summerfruit New Zealand.

    (2) If The Orchardist or SummerFruit: The Journal of Summerfruit New Zealand ceases to be published, the rates of the levy must be notified in—

    • (a) any publication that replaces either of those publications; or

    • (b) if no publication replaces either of them, a publication specified for the purposes of this order by the Minister of Agriculture by notice in the Gazette.

Time for payment of levy

15 When levy payable
  • (1) The due date for payment of the levy to SNZI is—

    • (a) the date of sale in the case of summerfruit sold—

      • (i) by the grower direct to the public or to a collection agent; or

      • (ii) by a collection agent on behalf of the grower; or

    • (b) the date of processing in the case of summerfruit processed—

      • (i) without having been sold by the grower; or

      • (ii) by a collection agent on behalf of the grower; or

    • (c) the date of export in the case of summerfruit exported—

      • (i) by the grower; or

      • (ii) by a collection agent on behalf of the grower.

    (2) The latest date for payment of the levy is the 20th day of the month following the due date for payment.

16 Additional levy if levy not paid in time
  • If any amount of the levy has not been paid by the close of the latest day for payment, the following amounts must be paid to SNZI in addition to the amount otherwise payable:

    • (a) 5% of the amount of the unpaid levy:

    • (b) 2% of the amount of the unpaid levy (excluding additional levies owing under this clause) for each month that the amount is outstanding.

Expenditure of levy money

17 SNZI must spend levy money
  • SNZI must—

    • (a) spend all levy money paid to it:

    • (b) invest the levy money until it is spent.

18 Purposes for which levy money may be spent
  • (1) SNZI may spend the levy money for the following purposes relating to summerfruit or the growing of summerfruit:

    • (a) product development:

    • (b) market research and development:

    • (c) protection or improvement of plant health:

    • (d) development and implementation of quality assurance programmes:

    • (e) research as permitted by section 10 of the Commodity Levies Act 1990:

    • (f) education:

    • (g) day-to-day administration of SNZI.

    (2) SNZI must not spend any levy money on commercial or trading activities unless the Minister of Agriculture gives written approval in accordance with section 10(4) and (5) of the Commodity Levies Act 1990.

19 Consultation on spending levy money
  • (1) SNZI must consult growers who pay the levy on how it proposed to spend the levy money.

    (2) SNZI must use the following avenues to consult growers who are members of SNZI:

    • (a) its annual general meeting; or

    • (b) a special general meeting called for that purpose.

    (3) For the purposes of subclause (2), SNZI must—

    • (a) distribute to growers the account records for the levy in the previous levy year and its spending proposals for the next levy year:

    • (b) allow growers at the meeting to speak on all matters relating to spending the levy money.

Record-keeping and information requirements

20 Records
  • (1) A grower must, for every levy year, keep records of—

    • (a) the selling price and quantity of summerfruit sold by the grower direct to the public; and

    • (b) the notional process value and quantity of summerfruit processed for sale by the grower; and

    • (c) the FOB value and quantity of summerfruit exported by the grower; and

    • (d) the full name and contact details of each collection agent to whom the grower has sold summerfruit, or who has sold, processed or exported summerfruit on the grower's behalf; and

    • (e) the selling price and quantity of summerfruit sold to a collection agent; and

    • (f) the selling price and quantity of summerfruit sold by a collection agent on behalf of the grower; and

    • (g) the notional process value and quantity of summerfruit processed by a collection agent on behalf of the grower; and

    • (h) the FOB value and quantity of summerfruit exported by a collection agent on behalf of the grower; and

    • (i) the amount of levy money paid by the grower to SNZI; and

    • (j) the rate or rates at which the levy was paid to SNZI.

    (2) A collection agent must, for every levy year, keep records of—

    • (a) the name and contact details of every grower from whom summerfruit was purchased, or on whose behalf summerfruit was sold, processed, or exported; and

    • (b) the amount of money paid to each grower for summerfruit, the date of payment, and the amount of levy deducted; and

    • (c) the amount of levy paid by the collection agent to SNZI and the date of payment; and

    • (d) the amount of the collection fee deducted (if any).

    (3) SNZI must, for every levy year, keep records of—

    • (a) each amount of levy money paid to it; and

    • (b) the person who paid each amount and the date the amount was received; and

    • (c) how it invested levy money (if at all); and

    • (d) how and when it spent levy money; and

    • (e) the amount of the collection fee (if any).

    (4) The records required by this clause must be retained for at least 2 years after the end of the levy year to which they relate.

21 Confidentiality of information
  • (1) No officer or employee of SNZI, or any person involved in collecting levy money (such as a collection agent), may disclose any information obtained—

    • (a) under or because of this order; or

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

    • (a) to an officer or employee of SNZI; or

    • (b) with the consent of every identifiable person to whom it relates; or

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

    • (d) that is required by law.

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

    • (a) complying with section 17(1) or 25 of the Commodity Levies Act 1990; or

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

    • (c) issuing invoices for, or collecting, the levy.

Miscellaneous

22 Conscientious objectors
  • (1) A grower or collection agent 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 Ministry of Agriculture and Forestry.

    (2) The chief executive must pay the amount to SNZI.

23 Remuneration of auditors
  • A person appointed as an auditor under section 15 of the Commodity Levies Act 1990 must be remunerated by SNZI at a rate determined by the Minister of Agriculture after consultation with SNZI.

Mediation of disputes

24 Appointment of mediators
  • (1) This clause applies to any dispute about—

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

    • (b) the amount of levy payable.

    (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 resolve the dispute by mediation.

    (3) If asked under subclause (2), the President (or a person authorised by the President) may appoint a person to resolve the dispute by mediation.

    (4) The mediator's appointment ends if—

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

    • (b) the mediator resolves the dispute under clause 31.

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

    (2) If the parties to a dispute cannot agree on a 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 the remuneration to be paid to the mediator; and

    • (b) specify how much of that remuneration (if any) each party must pay.

    (3) A party must pay to the mediator any amount specified as payable by that party under subclause (2)(b).

26 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 must be held on a day, and at a time and place, fixed by the mediator and notified in writing to the parties.

27 Conference must be held in private
  • Only the mediator and the parties to a dispute may attend a conference, unless clause 28 applies.

28 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 in the circumstances.

29 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.

30 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.

31 Mediator may resolve dispute in certain cases
  • (1) A mediator may resolve a dispute for the parties if—

    • (a) the dispute is not resolved at a conference; or

    • (b) the mediator believes that the parties are unlikely to resolve the dispute, whether or not they confer directly.

    (2) A mediator who resolves a dispute under subclause (1) must give each of the parties written notice of the mediator's decision and the reasons for the decision.

    (3) The parties must comply with the mediator's decision.

32 Costs of mediation
  • Each party must pay the party's own costs in relation to the mediation.

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

    (2) The appeal must be brought by the filing of a notice of appeal within 28 days after the making of the decision concerned, or 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 notify the appellant and the other parties to the dispute; and

    • (b) 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) On hearing the appeal, the District Court may confirm, vary, or reverse the decision appealed against.

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

34 Revocation and saving
  • (1) The Commodity Levies (Summerfruit) Order 2002 (SR 2002/244 ) is revoked.

    (2) Despite subclause (1), amounts of levy that become payable to SNZI under the Commodity Levies (Summerfruit) Order 2002 before the commencement of this order continue to be due and payable as if that order had not been revoked.

Rebecca Kitteridge,
Clerk of the Executive Council.


Issued under the authority of the Legislation Act 2012.

Date of notification in Gazette: 2 October 2008.


Reprints notes
1 General
  • This is a reprint of the Commodity Levies (Summerfruit) Order 2008 that incorporates all the amendments to that order as at the date of the last amendment to it.

2 Legal status
  • Reprints are presumed to correctly state, as at the date of the reprint, the law enacted by the principal enactment and by any amendments to that enactment. Section 18 of the Legislation Act 2012 provides that this reprint, published in electronic form, has the status of an official version under section 17 of that Act. A printed version of the reprint produced directly from this official electronic version also has official status.

3 Editorial and format changes
4 Amendments incorporated in this reprint
  • Subordinate Legislation (Confirmation and Validation) Act 2009 (2009 No 67): section 8(b)

    Commodity Levies Act 1990 (1990 No 127): section 13(1)