Biosecurity (Readiness and Response—Horses and Horse Germplasm Levy) Order 2020

Order

1 Title

This order is the Biosecurity (Readiness and Response—Horses and Horse Germplasm Levy) Order 2020.

2 Commencement

This order comes into force on 11 September 2020.

3 Interpretation

(1)

In this order, unless the context otherwise requires,—

Act means the Biosecurity Act 1993

agreement

(a)

means the deed; and

(b)

includes any operational agreement of the kind referred to in section 100Z(3) of the Act that is made between—

(i)

the Director-General; and

(ii)

NZEHA

collection agent means a person whose business is, or includes, transporting horses and horse germplasm into, or exporting it from, New Zealand on behalf of owners

deed

(a)

means the Government Industry Agreement for Biosecurity Readiness and Response deed signed by NZEHA on 26 January 2015 (as may be revised or amended from time to time); and

(b)

includes a deed of the kind described in section 100Z(2) of the Act that replaces the deed referred to in paragraph (a)

frozen horse semen straw means a plastic straw containing approximately 0.5 ml of horse semen

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

horse

(a)

means a live equid of the genus Equus caballus; but

(b)

does not include a donkey (Equus asinus), a zebra (Equus quagga, Equus grevyi, and Equus zebra ), or other zoo Equidae

horse germplasm means frozen horse embryos, inseminating doses, and frozen horse semen straws

inseminating dose means a dose of fresh chilled horse semen contained in a vial or bag that is 25 ml or 50 ml in volume (whether or not diluted with an extender)

levy means the levy imposed under clause 4

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

levy year means,—

(a)

for the first levy year, the period starting on 11 September 2020 and ending on 31 March 2021; and

(b)

for each subsequent year, the 12-month period that starts on 1 April and ends on 31 March

NZEHA means the New Zealand Equine Health Association Incorporated

owner means an owner of—

(a)

a horse imported into New Zealand; or

(b)

a horse exported from New Zealand; or

(c)

horse germplasm imported into New Zealand; or

(d)

horse germplasm exported from New Zealand

readiness activity has the meaning given in section 100Y(2) of the Act

response activity has the meaning given in section 100Y(3) of the Act.

(2)

Terms or expressions that are not defined in this order, but that are defined in the Act, have the meanings given to them by the Act.

Levy

4 Levy on horses and horse germplasm

(1)

A levy is imposed on all horses and horse germplasm imported into, or exported from, New Zealand.

(2)

The levy must be paid to NZEHA.

5 How levy may be spent

(1)

NZEHA must spend all levy money paid to it to meet its commitments under the agreement.

(2)

NZEHA may invest levy money until it is spent.

Determining levy

6 Basis for calculating levy

The levy must be calculated on the basis of each horse or horse germplasm imported into, or exported from, New Zealand.

7 Different levy rates apply

Different levy rates apply to—

(a)

horses imported into, or exported from, New Zealand; and

(b)

frozen horse embryos imported into, or exported from, New Zealand; and

(c)

inseminating doses imported into, or exported from, New Zealand; and

(d)

frozen horse semen straws imported into, or exported from, New Zealand.

8 Maximum levy rates

(1)

The maximum levy rates are—

(a)

$500 for each imported or exported horse; and

(b)

$200 for each imported or exported frozen horse embryo; and

(c)

$50 for each imported or exported inseminating dose; and

(d)

$10 for each imported or exported frozen horse semen straw.

(2)

The maximum levy rates are exclusive of GST.

9 Levy rates payable

(1)

The levy rates for the first levy year are—

(a)

$100 for each imported or exported horse; and

(b)

$20 for each imported or exported frozen horse embryo; and

(c)

$10 for each imported or exported inseminating dose; and

(d)

$1 for each imported or exported frozen horse semen straw.

(2)

NZEHA may—

(a)

set the levy rates for each subsequent year; and

(b)

vary the levy rates to ensure that they are sufficient, but do not exceed, what is necessary for NZEHA to meet its commitments under the agreement.

(3)

Before setting or varying a levy rate, NZEHA must—

(a)

include setting or varying the levy rates as an agenda item for discussion at its annual general meeting or at a special general meeting; and

(b)

permit all levy payers to—

(i)

attend the meeting; and

(ii)

have speaking rights in respect of the proposed levy rates.

Notification process

10 NZEHA must notify levy rates and varied levy rates

(1)

NZEHA must notify any rate set or varied under clause 9.

(2)

A levy rate or a variation of a levy rate is notified by NZEHA when it is—

(a)

published in an equine magazine or other similar publication; and

(b)

emailed or posted to members of equine bodies that are constituent members of NZEHA; and

(c)

published on the NZEHA website.

(3)

Notification under subclause (2)(b) is treated as occurring at the time the notice would have been delivered in the ordinary course of post or at the time of transmission of the email, whichever is earlier.

(4)

The earliest date that a levy rate or variation of a levy rate may come into effect is 3 months after NZEHA notifies the new rate in accordance with subclause (2).

Paying levy

11 Owners primarily responsible for paying levy

(1)

Owners are primarily responsible for paying the levy.

(2)

An owner who imports or exports their own horses or horse germplasm must pay the levy money directly to NZEHA.

12 Collection agents primarily responsible for collecting levy

(1)

Collection agents are primarily responsible for collecting the levy money from owners.

(2)

A collection agent must pay the levy money (and the GST) it collects to NZEHA.

(3)

A collection agent may recover the levy money from the owner—

(a)

by deducting the amount of the levy (including any GST payable) from the payment made to the owner; or

(b)

by recovering the amount of the levy (including any GST payable) as a debt due from the owner.

13 Collection fees

A collection agent may—

(a)

charge NZEHA a collection fee of not more than 3% of the levy payable (exclusive of GST); and

(b)

deduct the GST payable on that fee before paying the balance to NZEHA.

14 When levy payable by owners and collection agents

(1)

NZEHA must, in each month, invoice the owner or collection agent for the levy payable (plus GST, if any).

(2)

The due date for payment of the levy by an owner or a collection agent is the date on which the owner or agent receives an invoice from NZEHA.

(3)

The last date for payment of the levy by an owner or a collection agent is the 20th day of the month after the month in which the date for payment is due.

15 Penalty for late payment

If an owner or a collection agent does not pay an amount of levy money (or GST payable on that amount) by the 60th day after the last date for payment, they must pay NZEHA a further 3% of the unpaid amount for each whole month that the amount (or part of the amount) remains unpaid after the last date for payment.

16 Conscientious objectors

(1)

An owner or a collection agent who objects on conscientious or religious grounds to paying the levy in the manner provided for in this order may pay the amount concerned to the Director-General.

(2)

The Director-General must pay the amount to NZEHA.

Records and confidentiality

17 Owners must keep records

(1)

Owners who import or export their own horses or horse germplasm must keep records of the following for each levy year:

(a)

the rates at which levies were charged; and

(b)

the date of each payment; and

(c)

the amount of levy money paid to NZEHA or to the Director General.

(2)

Owners must keep the records for 5 years after the levy year to which the records relate.

(3)

NZEHA may, in writing, request from an owner any information set out in subclause (1) that NZEHA reasonably requires to determine the amount of levy money payable by the owner.

(4)

An owner must, as soon as is reasonably practicable after receiving a request from NZEHA, provide the information requested to NZEHA in writing.

18 Collection agents must keep records

(1)

Collection agents must keep records of the following for each levy year:

(a)

the name and contact details of each owner levied; and

(b)

the rates at which levies were charged and collected; and

(c)

the date of each payment received from each owner; and

(d)

the amount of levy money paid to NZEHA or to the Director General.

(2)

Collection agents must keep the records for 5 years after the levy year to which the records relate.

(3)

NZEHA may, in writing, request from a collection agent any information set out in subclause (1) that NZEHA reasonably requires to determine the amount of levy money payable by the agent.

(4)

A collection agent must, as soon as is reasonably practicable after receiving a request from NZEHA, provide the information requested to NZEHA in writing.

19 NZEHA must keep records

(1)

NZEHA must keep records of the following for each levy year:

(a)

each amount of levy money it receives; and

(b)

the date on which it receives the levy money; and

(c)

the name of the owner or collection agent who paid the levy money; and

(d)

the number of horses, frozen horse embryos, inseminating doses, and frozen horse semen straws imported or exported by each owner or collection agent; and

(e)

how and when the levy money was spent or invested.

(2)

NZEHA must keep the records for 7 years after the date on which it receives the levy money.

20 Confidentiality of information

(1)

This clause applies to information obtained—

(a)

under or because of this order; or

(b)

under the Act in relation to this order.

(2)

A person must not disclose information to anyone other than an officer or employee of NZEHA unless the disclosure is—

(a)

the giving of evidence in any legal proceedings taken in relation to this order; or

(b)

required by law; or

(c)

the production of records or accounts under section 100ZG of the Act.

(3)

NZEHA may disclose information—

(a)

for statistical or research purposes that do not require the disclosure of personal information; or

(b)

for the purpose of invoicing or collecting the levy money; or

(c)

for communicating with and supporting a levy-paying owner or collection agent, if the information relates only to that owner or agent; or

(d)

if every identifiable person to whom the information relates consents; or

(e)

as required by law.

Compliance audit

21 Remunerating auditors

(1)

An auditor appointed under section 100ZF of the Act is entitled to receive remuneration (as provided for under section 100ZF(8) of the Act) for the auditor’s fees and allowances.

(2)

The fees and allowances are payable by NZEHA at a rate agreed to by the Minister and NZEHA that the Minister is satisfied is reasonable.

Arbitration process

22 Appointing arbitrators

(1)

This clause applies to a dispute about—

(a)

whether any person is required to pay the levy; or

(b)

the amount of the levy payable.

(2)

The parties to a dispute may agree to submit the dispute to arbitration.

(3)

If the parties to a dispute are unable to agree on the appointment of an arbitrator, the arbitrator must be appointed in accordance with Schedule 1 of the Arbitration Act 1996.

(4)

For the purposes of the Arbitration Act 1996,—

(a)

an agreement under subclause (2) is an arbitration agreement; and

(b)

the arbitrator (whether appointed by agreement or under subclause (3)) is an arbitral tribunal.

23 Application of Arbitration Act 1996 to dispute

(1)

The provisions of the Arbitration Act 1996 (including the provisions for procedures to be followed by an arbitral tribunal) apply to the resolution of a dispute submitted to arbitration under this order.

(2)

However, the provisions of this order prevail—

(a)

if there is any inconsistency between those provisions and the provisions of the Arbitration Act 1996; or

(b)

if section 25 of that Act applies.

24 Arbitration costs

The costs of the arbitration (including the arbitrator’s remuneration) must, unless the parties agree otherwise, be determined under Schedule 2 of the Arbitration Act 1996.

25 Appeal to District Court

(1)

A party to a dispute who is dissatisfied with the arbitrator’s decision may appeal to the District Court against the decision.

(2)

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

(a)

within 28 days after the making of the decision concerned; or

(b)

within any longer time that the 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 appellant and the other parties to the dispute; and

(c)

serve a copy of the notice of appeal on all parties to the dispute.

(4)

Any 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 levy order comes into force on 11 September 2020. It imposes a levy on horses and horse germplasm imported into, and exported from, New Zealand. Owners of imported or exported horses or horse germplasm are primarily responsible for paying the levy. Collection agents, who are primarily responsible for collecting the levy money, pay it to the New Zealand Equine Health Association Incorporated (NZEHA), unless the owner or a collection agent pays the levy money directly to the Director-General.

NZEHA is the industry organisation representing the equine sector under Part 5A of the Biosecurity Act 1993 (the Act). Part 5A concerns agreements between government and industry organisations to deal with unwanted organisms, including agreements for jointly funding the costs of readiness and response activities.

NZEHA must spend the levy money paid to it to meet its commitments to—

  • contribute to the costs of readiness and response activities under the Government Industry Agreement for Biosecurity Readiness and Response deed signed by NZEHA on 26 January 2015; and

  • any operational agreement of the kind referred to in Part 5A of the Act that is made between the Director-General and NZEHA.

Clause 9 sets 4 levy rates. The proposed rates for the first levy year range from $100 (for each horse imported into, or exported from, New Zealand) to $1 (for each frozen horse semen straw imported into, or exported from, New Zealand). The rates may be varied if NZEHA is required to contribute to a particular readiness or a response activity.

This order is a confirmable instrument under section 47B of the Legislation Act 2012. It is revoked at the close of 31 December 2021, unless earlier confirmed by an Act of Parliament. That stated time is the applicable deadline under section 47C(1)(b) of that Act.

Issued under the authority of the Legislation Act 2012.

Date of notification in Gazette: 13 August 2020.

This order is administered by the Ministry for Primary Industries.