This order is the Commodity Levies (Vegetables and Fruit) Order 2007.

This order comes into force on 23 July 2007.

In this order, unless the context otherwise requires,—

This order applies to—

• (a) fruit:

• (b) fresh tomatoes:

• (c) fresh vegetables:

• (d) other vegetables:

• (e) potatoes:

• (f) process vegetables.

(1) A levy is imposed on vegetables and fruit.

(2) The levy is payable to HortNZ.

(1) Growers are primarily responsible for paying the levy.

(2) No grower is exempt from paying the levy.

(1) A collection agent must pay the levy and any GST payable on it at the first point of sale if the collection agent—

• (a) buys vegetables or fruit from a grower for resale, export, or processing; or

• (b) sells, exports, or processes vegetables or fruit on behalf of a grower.

(2) A collection agent may recover the levy (and any GST paid in respect of it) from a grower—

• (a) by deducting the amount of the levy (and any GST payable on it) from the payment made to the grower; or

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

(3) A collection agent must disclose to a grower the amount of levy money deducted under this order.

A collection agent who pays the levy may charge a collection fee of not more than 10% of the amount of levy collected (exclusive of GST) plus the GST payable on the fee by deducting the amount before paying the levy to HortNZ.

(1) Subject to subclause (2), the levy on each of the vegetables and fruit listed in clause 4 must be paid at a single rate.

(2) The levy imposed on fresh vegetables must be paid at 2 rates, being a rate for fresh vegetables—

• (a) sold for domestic consumption; or

• (b) sold for export.

(1) The levy payable must be calculated on the basis of the gross sales value at the first point of sale, except where—

• (a) the commodity is exported, when the levy will be calculated as a percentage of the FOB value; or

• (b) the commodity is processed prior to the first point of sale, when the levy will be a percentage of the notional process value that, in the opinion of HortNZ, the grower would have received for it if, immediately before it was processed, the grower had sold it to a similar processor situated in the same locality.

(2) The price or value referred to in subclause (1) is, in each case, the price or value before the deduction of any costs or charges and exclusive of GST.

(1) The maximum rate of levy in respect of fresh vegetables is 0.45%, and for fresh tomatoes is 0.675%, as the case may be, of the—

• (a) gross sales value at the first point of sale; or

• (b) FOB value.

(2) The maximum rate of levy for other vegetables is 0.15%, for process vegetables is 0.5625%, for potatoes is 0.75%, and for fruit is 0.15%, as the case may be, of the—

• (a) gross sales value at the first point of sale; or

• (b) FOB value; or

• (c) notional process value.

(3) The maximum levy rate is exclusive of GST.

(1) HortNZ must set the levy rates for the first levy year by any lawful means.

(2) For each subsequent levy year,—

• (a) the fruit levy rate must be set by a vote of fruit growers entitled to vote at the HortNZ annual general meeting:

• (b) the fresh tomato levy rate must be set by a vote at the HortNZ Fresh Tomato Product Group annual general meeting:

• (c) the fresh vegetables levy rate must be set by a vote at the HortNZ Fresh Vegetable Product Group annual general meeting:

• (d) the other vegetables levy rate must be set by a vote of other vegetable growers entitled to vote at the HortNZ annual general meeting:

• (e) the potatoes levy rate must be set by a vote at the HortNZ Potato Product Group annual general meeting:

• (f) the process vegetables levy rate must be set by a vote at the HortNZ Process Vegetable Product Group annual general meeting.

(3) If the levy rates are not set under subclause (2) before the beginning of a levy year, the levy for that year is payable at the rates last set under this clause.

(1) If any new levy rate set under clause 12 differs from the levy rate applying in the previous year, HortNZ must notify the new levy rate, as soon as practicable after setting the rate,—

• (a) for fruit—

  • (i) in The Orchardist; and

  • (ii) in the HortNZ email newsletter; and

  • (iii) by direct mail to all fruit growers and relevant collection agents known to HortNZ; and

  • (iv) in the Gazette; and

• (b) for vegetables—

  • (i) in the Grower; and

  • (ii) in the HortNZ email newsletter; and

  • (iii) by direct mail to all vegetable growers and relevant collection agents known to HortNZ; and

  • (iv) in the Gazette.

(2) If The Orchardist or the Grower cease to be published, the Minister of Agriculture may, by notice in the Gazette, specify a publication for the time being for the purposes of this order.

(1) If vegetables or fruit are sold directly to the public by growers, or processed by growers, or exported by growers, the due date for payment of the levy by growers is 30 June.

(2) The levy payable by growers is to be paid annually for the preceding 12 months.

(3) The latest date for payment of the levy by growers is 30 September in the same calendar year.

(1) The due date for payment of the levy by a collection agent is the date on which the collection agent recovers the levy from the grower.

(2) The latest date for payment of the levy by the collection agent is the 20th day of the month after the month in which the levy is recovered from the grower.

(1) If any amount of the levy (or GST payable on that amount) has not been paid by the close of the latest day for payment, 10% of the amount of the levy not paid at the end of the first month must be paid to HortNZ, 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 that the amount has not been paid.

(1) Any grower who objects on conscientious or religious grounds to the manner of recovery by HortNZ of an amount of levy money may pay the amount concerned to the chief executive of the Ministry of Agriculture and Forestry.

(2) The chief executive must pay that amount to HortNZ.

(1) HortNZ—

• (a) must spend all levy money; or

• (b) pending its expenditure, may—

  • (i) in the case of vegetables, pay the levy money to any affiliated product group or affiliated grower association of HortNZ that is an incorporated branch of HortNZ, which must spend the money; or

  • (ii) invest it.

(2) HortNZ must not spend levy money on commercial or trading activities.

Subject to clause 18, HortNZ may spend the levy money for any of the following general purposes, as relevant to each of the vegetables and fruit listed in clause 4:

• (a) research and development:

• (b) development of quality assurance:

• (c) market development and promotion:

• (d) education and information:

• (e) grower representation:

• (f) day-to-day administration of HortNZ.

HortNZ must consult on how it is to spend its levy money by consulting—

• (a) affiliated product groups; and

• (b) affiliated grower associations; and

• (c) growers at the annual conference of HortNZ; and

• (d) in the case of fresh vegetables, growers at the—

  • (i) fresh vegetable crop committees; and

  • (ii) annual meeting of the fresh vegetable product group; and

• (e) in the case of process vegetables, growers—

  • (i) at the annual meeting of the process vegetable product group; and

  • (ii) through elected group representatives; and

• (f) in the case of potatoes, growers—

  • (i) at the annual meeting of the potato product group; and

  • (ii) through elected grower representatives; and

• (g) in the case of fresh tomatoes, growers—

  • (i) at the annual meeting of the fresh tomato product group; and

  • (ii) through elected grower representatives; and

• (h) in the case of other vegetables, growers through the annual meetings and committee meetings of the—

  • (i) New Zealand Asparagus Council Incorporated; and

  • (ii) New Zealand Kabocha Council Incorporated.

(1) A payment of levy money to HortNZ by a grower or collection agent must state—

• (a) the value of and the kinds of vegetables or fruit listed in clause 4 to which the payment relates; and

• (b) in the case of a return by a collection agent, the name of the grower.

(2) Growers and collection agents must, as soon as is reasonably practicable after receiving a written request from HortNZ for information required for determining the amount of levy payable, supply the information kept in accordance with clauses 22 and 23, as applicable, in writing to HortNZ.

(1) A grower who pays a levy directly to HortNZ must keep the following records:

• (a) the amount of levy paid; and

• (b) the sales that the levies were deducted from.

(2) A grower whose levies are paid by collection agents must keep the following records:

• (a) the amount of levy paid; and

• (b) the sales that those levies were deducted from; and

• (c) the name and address of the collection agent.

Levy collection agents must keep the following records:

• (a) the amount of levy paid; and

• (b) the sales that those levies were deducted from; and

• (c) the details of the growers they have collected levies from (including the grower's name, trading name, and postal address).

HortNZ must, in each levy year, for each kind of vegetable and fruit listed in clause 4, keep records of,—

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

  • (i) the date on which each levy is received; and

  • (ii) the person who pays the levy in each case; and

• (b) how the levy money—

  • (i) is spent; or

  • (ii) is invested (if at all); and

• (c) each amount of levy money paid by HortNZ to an affiliated product group or affiliated grower association and, in relation to each amount,—

  • (i) the date on which it was paid to the affiliated product group or affiliated grower association; and

  • (ii) the name of the affiliated product group or affiliated grower association.

The records made under clauses 22, 23, and 24 must be retained for not less than 2 years from the date of the payment of the levy to which they relate.

(1) No officer or employee of HortNZ or any other person or organisation that gathers information may disclose (except to an officer or employee of HortNZ) 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 prevent HortNZ from disclosing or using information—

• (a) with the consent of the levy payer and every other identifiable person to whom it relates; or

• (b) for the purposes of collecting levy money from each levy payer or levy collector; or

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

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

• (a) the disclosure of information for the purposes of—

  • (i) an audit conducted under section 17 of the Act; or

  • (ii) a statement required under section 25 of the Act; or

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

• (c) the disclosure of information required by law.

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

(1) This clause applies to any dispute about—

• (a) whether or not a person is required to pay the levy; or

• (b) the amount of levy payable.

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

(3) 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 35.

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

(2) If the parties to a 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 that must 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 or amounts fixed and specified under subclause (2).

A mediator must—

• (a) organise the date, time, and place for each conference to be held by the mediator; and

• (b) notify the parties by mail or email; and

• (c) preside at the conference.

Only the parties to a dispute may attend a conference with the mediator, except when clause 32 applies.

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

The following persons may be heard at a conference with a mediator:

• (a) each party to the dispute; and

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

(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,—

• (a) seek and receive any evidence that the mediator thinks desirable to resolve the dispute; and

• (b) make any investigations and inquiries that the mediator thinks desirable to resolve the dispute.

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

(1) The mediator may resolve a dispute for the parties if—

• (a) the dispute has not been resolved at a conference of the parties with the mediator; or

• (b) the dispute appears to the mediator to be unlikely to be resolved by the parties, whether or not they confer directly.

(2) A mediator who resolves a dispute under subclause (1) must give each of the parties notice of the mediator's decision, and the reasons for the decision, in person, by mail, or by email.

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

Each party must pay the party's own costs in relation to the mediation.

(1) A party to a dispute who is dissatisfied with the mediator's decision under clause 35 may appeal to a District Court against the decision.

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

• (a) within 28 days after the date on which the mediator makes the decision; 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 appellant and the other parties to the dispute of the time and place; and

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

(4) Each 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 mediator's decision.

(6) The filing of a notice of appeal does not operate as a stay of process for the enforcement of the mediator's decision.

(1) The Commodity Levies (Vegetables) Order 2001 (SR 2001/332) is revoked.

(2) The Commodity Levies (Orchard Fruit) Order 2001 (SR 2001/186) is revoked.

(3) Amounts of levy that became payable under the Commodity Levies (Vegetables) Order 2001 and the Commodity Levies (Orchard Fruit) Order 2001 before 23 July 2007 continue to be due and payable as if that order had not been revoked.