Commodity Levies (Nashi Pears) Order 2012

Reprint
as at 12 December 2012

Coat of Arms of New Zealand

Commodity Levies (Nashi Pears) Order 2012

(SR 2012/89)

Jerry Mateparae, Governor-General

Order in Council

At Wellington this 14th day of May 2012

Present:
His Excellency the Governor-General in Council


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 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 and on the recommendation of the Minister for Primary Industries given in accordance with sections 5 and 6 of that Act, makes the following order.

Order

1 Title
  • This order is the Commodity Levies (Nashi Pears) Order 2012.

2 Commencement
  • This order comes into force on 14 June 2012.

    Order: confirmed, on 12 December 2012, by section 8(c) of the Subordinate Legislation (Confirmation and Validation) Act 2012 (2012 No 97).

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

    grower means a person whose business is or includes growing nashi pears

    leviable nashi pears means nashi pears grown in New Zealand and—

    • (a) exported; or

    • (b) sold fresh in New Zealand (otherwise than for processing) for human consumption

    levy means the levy imposed by clause 4

    levy money

    • (a) means money payable under this order as levy; and

    • (b) includes any increased levy payable under clause 14

    levy year

    • (a) means a period of 12 months beginning on 1 November and ending on 31 October; and

    • (b) includes both of the following periods:

      • (i) the period beginning on the date of commencement of this order and ending on 31 October 2012; and

      • (ii) the period beginning on 1 November 2017 and ending on the expiry of this order

    mediator means a person appointed under clause 23

    Nashi New Zealand means the industry organisation known at the commencement of this order as Nashi New Zealand Incorporated

    nashi pears means fruit of the plant species Pyrus pyrifolia or of any plant that is a hybrid of that species and the species Pyrus ussuriensis

    party means a party to a dispute

    The Orchardist means the publication of that name published, from time to time, before the commencement of this order (under whatever name it may later be published).

Levy imposed

4 Levy imposed
  • (1) A levy is imposed on leviable nashi pears.

    (2) The levy is payable to Nashi New Zealand.

5 Growers responsible for payment of levy
  • A grower of leviable nashi pears is primarily responsible for paying, and must pay, the levy on them.

Determination of levy

6 Basis of calculation of levy
  • (1) The levy is to be calculated on the kilogram weight of leviable nashi pears.

    (2) The levy for a levy year is to be calculated by reference to the kilogram weight of the grower’s leviable nashi pears for that levy year.

    (3) In a levy year that commences on 1 November and ends on 31 October, Nashi New Zealand must send to growers 2 returns on which growers must declare—

    • (a) the kilogram weight of leviable nashi pears for the 8 months ending on 30 June and for the 4 months ending on 31 October; and

    • (b) the levy payable for each of those periods.

    (4) In any other levy year, Nashi New Zealand must send to growers a return on which growers must declare—

    • (a) the kilogram weight of leviable nashi pears produced in that levy year; and

    • (b) the levy payable for that levy year.

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

8 Maximum rate of levy
  • The maximum rate of levy is 5 cents per kilogram of leviable nashi pears, exclusive of any goods and services tax.

9 Minimum amount of levy payable
  • The minimum amount of levy money payable for a levy year is $50 per grower, exclusive of any goods and services tax.

10 Fixing actual rate of levy
  • The actual rate of levy,—

    • (a) in the case of the levy year ending on 31 October 2012, is 1.5 cents per kilogram; and

    • (b) in the case of each of the other levy years, is to be fixed by Nashi New Zealand at its annual general meeting in the previous levy year.

11 Previous rate to apply
  • If the actual rate of levy is not fixed by Nashi New Zealand for a levy year under clause 10(b), the levy for that levy year is payable at the levy rate set by clause 10(a) or last fixed under clause 10(b), as the case may require.

12 Notification of rate of levy
  • (1) As soon as practicable after fixing a rate of levy for a levy year, Nashi New Zealand must notify that rate and the levy year to which it relates by notice—

    • (a) in a publication of Nashi New Zealand (if any); and

    • (b) in The Orchardist.

    (2) If The Orchardist ceases to be published, Nashi New Zealand must notify the rate of levy and the levy year to which it relates by notice in a publication of Nashi New Zealand (if any) and—

    • (a) in a publication that replaces The Orchardist; or

    • (b) if no publication replaces The Orchardist, in a publication specified by notice in the Gazette by the Minister responsible for the time being for the administration of the Act.

Payment of levy

13 When levy payable
  • (1) Levies must be paid as follows:

    • (a) in the case of a levy year that commences on 1 November and ends on 31 October, levies must be paid in 2 instalments:

    • (b) in the case of any other levy year, levies must be paid in a single instalment.

    (2) The due dates for the payment of levy money are as follows:

    • (a) in the case of a levy year that commences on 1 November and ends on 31 October, 30 June and 31 October:

    • (b) in the case of any other levy year, the last day of the levy year.

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

    (4) A return becomes an invoice for levy money the moment a grower pays the levy money declared to be payable on the return.

14 Increased levy payable if levy not paid in time
  • (1) A grower must pay Nashi New Zealand an increased levy if the grower fails to pay levy money by the latest date for its payment under clause 13.

    (2) The amount of the increased levy is—

    • (a) the amount of levy money not paid by the latest date for payment; and

    • (b) an additional 10% of that amount.

Expenditure of levy money

15 Levy money to be spent by Nashi New Zealand
  • Nashi New Zealand must spend or (pending expenditure) invest all levy money paid to it.

16 Consultation on how levy money to be spent
  • (1) Nashi New Zealand must consult growers on how it proposes to spend levy money and provide the details of the previous 12 months’ expenditure at its annual general meeting or a special meeting called for that purpose.

    (2) For the purposes of subclause (1), Nashi New Zealand must, at the meeting,—

    • (a) present a budget for the proposed expenditure of levy money to be collected in the next levy year; and

    • (b) present accounts on the expenditure of levy money collected in the previous levy year; and

    • (c) allow reasonable time in the agenda of the meeting for growers to discuss expenditure of levy money.

17 General purposes for which levy money may be spent
  • (1) Nashi New Zealand may spend levy money for the following purposes relating to nashi pears:

    • (a) product research and development:

    • (b) market research and development:

    • (c) product promotion:

    • (d) quality assurance:

    • (e) education:

    • (f) day-to-day administration of Nashi New Zealand.

    (2) Nashi New Zealand must not spend levy money on commercial or trading activities.

Record-keeping requirements and confidentiality of information

18 Returns by growers
  • A grower must complete returns received from Nashi New Zealand under clause 6 and forward them to Nashi New Zealand with the levy money payable by the latest day for the payment of levy money under clause 13.

19 Records
  • (1) Every grower must—

    • (a) record the following matters for each levy year:

      • (i) the quantities of leviable nashi pears:

      • (ii) the amount of levy money paid to Nashi New Zealand; and

    • (b) ensure that the records are retained for at least 2 years after the payment of the levy money to which the records relate.

    (2) Nashi New Zealand must—

    • (a) record the following matters for each levy year:

      • (i) each amount of levy money paid to it and, for each amount, the day of its receipt and the name and details of the person who paid it:

      • (ii) how (if at all) levy money received was invested:

      • (iii) how and when levy money spent by it was spent; and

    • (b) ensure that the records are retained for at least 2 years after the date of payment of the levy money to which the records relate.

    (3) This clause does not require any person to keep a nil record.

20 Confidentiality of information
  • (1) No officer or employee of Nashi New Zealand may disclose (otherwise than to some other officer or employee of Nashi New Zealand) any commercially sensitive information obtained—

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

    • (b) in relation to this order, under the Act.

    (2) Subclause (1) does not affect or prevent—

    • (a) the production of records or accounts under section 17(1) of the Act; or

    • (b) the production of statements under section 25 of the Act; or

    • (c) the giving of evidence in legal proceedings taken—

      • (i) under or in relation to this order; or

      • (ii) in relation to this order, under or in relation to the Act.

    (3) Subclause (1) does not prevent Nashi New Zealand from—

    • (a) disclosing or using any information (not being information relating to an identifiable person) for statistical and research purposes; or

    • (b) disclosing or using any information for the purpose of determining the voting entitlements, and counting the votes, of members of Nashi New Zealand; or

    • (c) disclosing or using any information for the purpose of collecting levy money (including the preparation of returns and invoices under this order); or

    • (d) disclosing or using any information with the consent of every identifiable person to whom it relates.

Miscellaneous

21 Conscientious objectors
  • (1) A grower who objects on conscientious or religious grounds to the manner of recovery by Nashi New Zealand of levy money may pay the levy money concerned to the chief executive of the Ministry for Primary Industries or the chief executive of any department of State that is for the time being responsible for the administration of this order.

    (2) The chief executive must pay any levy money received under subclause (1) to Nashi New Zealand.

22 Remuneration of persons conducting compliance audits
  • A person appointed as auditor under section 15 of the Act is to be remunerated by Nashi New Zealand at a rate determined by the Minister for Primary Industries after consultation with Nashi New Zealand.

Mediation of disputes

23 Appointment of mediators
  • (1) This clause applies if a dispute arises about—

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

    • (b) the amount of levy money payable.

    (2) A party may ask the President of the Arbitrators’ and Mediators’ Institute of New Zealand Incorporated (the President) to appoint a person to—

    • (a) organise and preside at a conference of the parties; and

    • (b) attempt to resolve the dispute by mediation.

    (3) On receiving a request under subclause (2), the President (or a person authorised by the President to do so) may appoint a person to resolve the dispute by mediation.

    (4) The mediator’s appointment ends when—

    • (a) the parties resolve the dispute themselves; or

    • (b) the mediator resolves the dispute under clause 30.

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

    (2) However, if the parties cannot agree on a mediator’s remuneration, the President (or a person authorised by the President to do so) 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.

25 Time and place of conference
  • Every conference of the parties organised by a mediator is to be held on a day and at a time and place fixed, and notified in writing to the parties, by the mediator.

26 Conference to be held in private
  • Except as provided in clause 27, only the parties and the mediator may attend a conference organised by the mediator.

27 Representatives
  • If satisfied that in all the circumstances it is appropriate to do so, a mediator may allow a representative of a party to attend a conference of the parties organised by the mediator.

28 Right to be heard
  • Every party, and every representative of a party allowed by the mediator to attend a conference of the parties organised by a mediator, may be heard at the conference.

29 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 of the parties to verify the evidence by statutory declaration.

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

    • (a) has organised and presided at a conference of the parties but the dispute has not been resolved; or

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

    (2) If the mediator resolves a dispute, the mediator 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 a decision of the mediator.

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

32 Appeal to District Court
  • (1) A party who is dissatisfied with a decision made by a mediator under clause 30 may appeal against the decision to a District Court.

    (2) An appeal is to be brought by the filing of a notice of appeal within 28 days of the making of the decision concerned, or within any longer time a District Court Judge allows.

    (3) The Registrar of the District Court must—

    • (a) serve a copy of the notice of appeal on every other party; and

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

    • (c) notify the appellant and the other parties of the time and place for the hearing of the appeal.

    (4) Every party 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.

Rebecca Kitteridge,
Clerk of the Executive Council.


Explanatory note

This note is not part of the order, but is intended to indicate its general effect.

This order, which comes into force on 14 June 2012, replaces the Commodity Levies (Nashi Asian Pears) Order 2006. That order expired on 27 February 2012.

This order imposes a levy on leviable nashi pears, being nashi pears grown in New Zealand and exported or sold fresh in New Zealand (otherwise than for processing) for human consumption. The levy is payable to Nashi New Zealand Incorporated by growers, being persons whose business is or includes growing nashi pears.

Unless earlier revoked, this order expires 6 years after it is made by virtue of section 13 of the Commodity Levies Act 1990.


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

Date of notification in Gazette: 17 May 2012.


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 (Nashi Pears) Order 2012. The reprint incorporates all the amendments to the order as at 12 December 2012, 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)
  • Subordinate Legislation (Confirmation and Validation) Act 2012 (2012 No 97): section 8(c)