Commodity Levies (Blackcurrants) Order 2019

2019/213

Coat of Arms of New Zealand

Commodity Levies (Blackcurrants) Order 2019

Patsy Reddy, Governor-General

Order in Council

At Wellington this 2nd day of September 2019

Present:
The Right Hon Jacinda Ardern presiding in Council

This order is made under section 4 of the Commodity Levies Act 1990

(a)

on the advice and with the consent of the Executive Council; and

(b)

on the recommendation of the Minister of Agriculture made in accordance with sections 5 and 6 of that Act.

Order

1 Title

This order is the Commodity Levies (Blackcurrants) Order 2019.

2 Commencement

This order comes into force on 30 September 2019.

3 Interpretation

In this order, unless the context otherwise requires,—

BCNZ means the industry organisation known on the commencement of this order as Blackcurrants NZ Incorporated

collection agent means a person whose business is or includes—

(a)

buying blackcurrants from a grower for resale, processing, or export; or

(b)

selling blackcurrants on behalf of a grower

grower means a person whose business is or includes the commercial production of blackcurrants

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

levy means the levy imposed by clause 4

levy money means money paid or payable under this order as a levy

levy year means,—

(a)

for the first levy year, the period starting on 30 September 2019 and ending on 30 September 2020:

(b)

for the last levy year, the period starting on 1 October 2024 and ending on 29 September 2025:

(c)

in every other case, a 1-year period starting on 1 October and ending on 30 September

mediator means—

(a)

a person appointed under clause 23; and

(b)

for a particular dispute, a mediator appointed to resolve the dispute.

Levy imposed

4 Levy on blackcurrants

(1)

This order imposes a levy on blackcurrants grown by a grower.

(2)

The levy must be paid to BCNZ.

Paying levy

5 Growers primarily responsible for paying levy

(1)

Growers are primarily responsible for paying the levy.

(2)

No grower is exempt from paying the levy.

6 Collection agent must pay levy and recover it from growers

(1)

A collection agent must pay the levy, and any GST payable on it, if the collection agent—

(a)

buys blackcurrants from a grower for resale, processing, or export; or

(b)

sells blackcurrants on behalf of a grower.

(2)

A collection agent may recover the levy, and any GST paid in respect of it, from the grower by deducting the levy and GST from the amount otherwise payable to the grower for the blackcurrants.

(3)

A collection agent must not charge a collection fee for paying or recovering the levy.

Determination of levy

7 Basis of calculation of levy

(1)

The levy on blackcurrants must be calculated on the basis of the weight in kilograms of blackcurrants grown by a grower.

(2)

The levy must be paid at a single rate.

8 Initial rate of levy

The rate of levy for the first levy year is set at 4 cents per kilogram (excluding GST).

9 Later rates of levy

BCNZ may set the rate of levy for any levy year other than the first as long as—

(a)

the rate is set before the start of the levy year; and

(b)

the rate does not exceed the maximum rate of 6 cents per kilogram (excluding GST); and

(c)

if the rate is greater than the rate for the previous levy year, the rate has been approved by growers at the last annual or special general meeting of BCNZ.

10 Previous rate of levy to apply

If the rate of levy is not set for a levy year in accordance with clause 9, then the most recently set rate of levy continues to apply for that levy year.

11 Notification of rate of levy

As soon as practicable after setting a rate of levy for any levy year, BCNZ must notify the rate—

(a)

in the Gazette; and

(b)

to all growers and collection agents known to it—

(i)

in its newsletter; and

(ii)

by email.

Payment of levy

12 When levy payable by growers

(1)

If a grower sells blackcurrants directly to the public, the grower must, by the 20th day of the month following the end of the quarter in which the sale was made,—

(a)

declare to BCNZ the quantity of blackcurrants sold; and

(b)

pay the levy to BCNZ.

(2)

A grower must declare to BCNZ by the close of 30 September in each levy year the quantity of blackcurrants harvested for which no levy is payable under subclause (1) or clause 13.

(3)

The levy payable under subclause (2)—

(a)

is due on 30 September; and

(b)

must be paid on or before 20 October in the same calendar year.

13 When levy payable by collection agents

(1)

BCNZ must invoice a collection agent at the end of each quarter for the levy payable on the blackcurrants that the collection agent purchased during the quarter.

(2)

The levy—

(a)

is due on the date that the invoice is issued; and

(b)

must be paid on or before the 20th day of the month following the month in which the invoice is issued.

14 Additional levy if levy not paid in time

(1)

If any amount of the levy (or GST payable on that amount) has not been paid by the close of the last day for payment, 5% of the amount of the levy not paid at the end of the first month must be paid to BCNZ in addition to the amount otherwise payable.

(2)

A further 2% of the amount owing (including any previous penalties) is payable at the end of each additional month in which the amount remains unpaid.

Spending of levy money

15 BCNZ must spend levy money

(1)

BCNZ must spend all levy money paid to it.

(2)

BCNZ must invest all levy money until it is spent.

16 Purposes for which levy money may be spent

(1)

BCNZ may spend levy money for any or all of the following purposes relating to blackcurrants:

(a)

the breeding of new varieties:

(b)

product research and development:

(c)

market research and development:

(d)

the promotion of blackcurrants:

(e)

quality assurance:

(f)

the promotion of technology use:

(g)

biosecurity readiness:

(h)

the day-to-day administration of BCNZ.

(2)

BCNZ must not spend any levy money on commercial or trading activities.

17 BCNZ must inform and consult growers about spending of levy money

(1)

BCNZ must, at its annual general meeting, inform growers of how it has spent levy money and consult growers on how it proposes to spend levy money.

(2)

BCNZ may, at any special general meeting, inform growers of how it has spent levy money and consult growers on how it proposes to spend levy money.

Returns, records, and confidentiality

18 Returns

(1)

A payment of levy money to BCNZ by a grower or collection agent must be accompanied by a written return that states—

(a)

the weight in kilograms of the blackcurrants to which the payment relates; and

(b)

the name of the grower of the blackcurrants and the grower’s contact details.

(2)

BCNZ may request, in writing, from a grower or collection agent, any information that is required for determining the amount of levy payable and that is required to be kept in accordance with clause 19.

(3)

As soon as is reasonably practicable after receiving a request under subclause (2), a grower or collection agent must supply BCNZ with a written return of the information requested.

19 Records

(1)

A grower must, for each levy year, keep records of—

(a)

the name and address of each collection agent to whom the grower has sold blackcurrants; and

(b)

the quantities sold to each collection agent; and

(c)

the quantities of unsold fruit held in storage at the end of the levy year.

(2)

A collection agent must, for each levy year, keep records of—

(a)

the name and address of each grower from whom blackcurrants were bought; and

(b)

the quantities bought from each grower; and

(c)

the amount of levy deducted in respect of each quantity; and

(d)

the quantities of blackcurrants sold by the collection agent.

(3)

BCNZ must, for each 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 on which it was received; and

(c)

how the levy money was spent or invested.

(4)

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

20 Confidentiality of information

(1)

No officer or employee of BCNZ, or any person involved in collecting levy money (such as a collection agent), may disclose (except to an officer or employee of BCNZ) any information obtained—

(a)

under or because of this order; or

(b)

under the Act in relation to this order.

(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 any statement under section 25 of the Act; or

(c)

the giving of evidence in any 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; or

(d)

the disclosure of information that is required by law.

(3)

Subclause (1) does not prevent BCNZ from—

(a)

disclosing or using any information for statistical or research purposes, if the information is disclosed in a form that does not identify any person; or

(b)

disclosing or using any information for the purposes of invoicing or collecting the levy; or

(c)

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

Miscellaneous

21 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 Director-General of the Ministry for Primary Industries.

(2)

The Director-General must pay the amount to BCNZ.

22 Remuneration of persons conducting compliance audits

A person appointed as auditor under section 15 of the Act must be remunerated by BCNZ at a rate determined by the Minister of Agriculture after consultation with BCNZ.

Dispute resolution

23 Appointment of mediators

(1)

This clause applies to a dispute about—

(a)

whether a person is required to pay the levy; or

(b)

the amount of the levy payable.

(2)

A party to the dispute may ask the President of the Arbitrators and Mediators Institute of New Zealand Incorporated (the President) to appoint a person to resolve the dispute by mediation.

(3)

On receiving the request, 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 to the dispute resolve it by agreement; or

(b)

the mediator resolves the dispute under clause 30.

24 Remuneration of mediators

(1)

A mediator must be paid remuneration (by way of fees and allowances) as 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 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 Conference

A mediator may organise a conference to facilitate the resolution of the dispute between the parties.

26 Time and place of conference

Every conference organised by a mediator 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 to be held in private

(1)

Only the parties to a dispute and the mediator may attend a conference organised by the mediator.

(2)

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

28 Right to be heard

Every party to a dispute, and every representative of a party allowed by the mediator to attend a conference 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 a dispute 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—

(a)

the mediator has organised and presided at a conference of the parties, but the dispute has not been resolved; or

(b)

the mediator 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 the 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 to a dispute who is dissatisfied with the decision made by a mediator under clause 30 may appeal to the District Court against the decision.

(2)

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

(a)

within 28 days after the decision is made; or

(b)

within any longer time that a District Court Judge allows.

(3)

The Registrar of the court must—

(a)

serve a copy of the notice of appeal on every other party to the dispute; and

(b)

fix the time and place for the hearing of the appeal; and

(c)

notify the appellant and the other parties to the dispute of the time and place for the hearing.

(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.

Michael Webster,
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 30 September 2019, imposes a levy on blackcurrants that a grower produces in New Zealand for commercial purposes. The levy is payable to Blackcurrants NZ Incorporated. This order replaces the Commodity Levies (Blackcurrants) Order 2013, which expired at the end of 22 September 2019 (see section 13 of the Commodity Levies Act 1990).

This order is a confirmable instrument under section 47B of the Legislation Act 2012. It is revoked at the close of 31 December 2020, unless earlier confirmed by an Act of Parliament. That stated time is the applicable deadline under section 47C(1)(b) of that Act. If this order is confirmed, it will be revoked on 29 September 2025 (the day before the sixth anniversary of the date on which it came into force), unless it is extended under section 13(2) of the Commodity Levies Act 1990.

Issued under the authority of the Legislation Act 2012.

Date of notification in Gazette: 5 September 2019.

This order is administered by the Ministry for Primary Industries.