This order is the Commodity Levies (Avocados) Order 2007.

This order comes into force on 6 August 2007.

In this order, unless the context otherwise requires,—

(1) A levy is imposed on all avocados grown by growers and—

• (a) sold in New Zealand for consumption as fresh fruit; or

• (b) sold for processing in New Zealand; or

• (c) processed in New Zealand before being sold.

(2) The levy is payable to NZAGA.

(1) A levy is imposed on all avocados produced by growers and—

• (a) exported by the grower; or

• (b) sold to a collection agent for export; or

• (c) exported by a collection agent on behalf of a grower.

(2) The levy is payable to NZAGA.

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

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

(1) A collection agent must pay the levy to NZAGA (plus any GST payable on it) if the collection agent—

• (a) buys avocados from growers (except through another collection agent) for resale or processing in New Zealand, or for export, as the case may be; or

• (b) sells or processes avocados in New Zealand on behalf of growers, or exports them on behalf of growers, as the case may be.

(2) The collection agent may recover the levy (plus any GST paid in respect of it) from the grower—

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

• (b) by recovering the levy (plus any GST paid on it) as a debt due from the grower.

(1) A collection agent who pays the levy to NZAGA on avocados sold in New Zealand for consumption as fresh fruit or avocados that are processed in New Zealand may deduct from the levy a collection fee of not more than 10% of the amount of the levy payable to NZAGA (exclusive of GST) plus the GST payable on the fee.

(2) In the case of avocados being exported, the collection agent who pays the levy to NZAGA must not deduct a collection fee from the levy.

The levies imposed by clauses 4 and 5 must be paid at a single rate.

(1) The levy payable in a levy year must be calculated on the basis of,—

• (a) in the case of avocados sold in New Zealand for consumption as fresh fruit, the selling price; and

• (b) in the case of avocados sold for processing in New Zealand, the selling price; and

• (c) in the case of avocados processed in New Zealand by, or on behalf of, the grower before being sold, the selling price; and

• (d) in the case of avocados exported or sold for export, the number of kilograms of avocados produced and exported, calculated by reference to the number of tray equivalents.

(2) For the purposes of subclause (1)(a) to (c), if NZAGA considers that the declared selling price is not consistent with the prevailing market conditions in the grower's locality or if there is no declared selling price, NZAGA may determine that the selling price is the market value on the date of sale or transaction that, in the opinion of NZAGA, a purchaser would have been reasonably expected to pay for the avocados.

The maximum rate of levy is,—

• (a) in the case of avocados sold in New Zealand for consumption as fresh fruit, 3% of the selling price (plus GST, if any); and

• (b) in the case of avocados sold for processing in New Zealand, 3% of the selling price (plus GST, if any); and

• (c) in the case of avocados processed in New Zealand by, or behalf of, the grower before being sold, 3% of the selling price (plus GST, if any); and

• (d) in the case of avocados exported or sold for export, 50 cents (plus GST, if any) per tray equivalent.

(1) NZAGA must fix the levy rate for the first levy year by any means by which it can lawfully make decisions.

(2) NZAGA must fix the levy rate for each subsequent levy year—

• (a) at an annual general meeting; or

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

If NZAGA does not fix the levy rates before the start of a levy year, the levy rate for that year is payable at the rate last fixed under clause 12.

(1) As soon as practicable after setting the levy rates for a levy year, NZAGA must notify the levy rates—

• (a) in Avoscene; and

• (b) in The Orchardist.

(2) If Avoscene or The Orchardist ceases to be published, the levy rates must be notified in—

• (a) any publication that replaces them; or

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

(1) The due date for payment of the levy is—

• (a) the date the grower sells the avocados to the collection agent or directly; or

• (b) the date the collection agent sells the avocados on behalf of the grower; or

• (c) if the avocados are not sold, the date on which the avocados are processed.

(2) The latest date for payment of the levy is the 20th day of the month after the month in which the due date for payment occurs.

(3) In the case of avocados sold for export, NZAGA may, in its absolute discretion, grant an extension of time for paying the levy if off-shore terms of trade for the sale of the avocados have not been finalised before the last day for payment of the levy.

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 NZAGA in addition to the amount otherwise payable:

• (a) 10% of the amount of the unpaid levy; and

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

(1) NZAGA must—

• (a) spend all levy money; or

• (b) pending its expenditure, may—

  • (i) pay the levy money to its branches or subsidiaries, which must spend the levy money; or

  • (ii) invest the levy money.

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

NZAGA or its branches or subsidiaries may spend the levy money for any or all of the following purposes:

• (a) research and development:

• (b) market development, promotion, and access:

• (c) promotion of avocados and the avocado industry:

• (d) services relating to crop estimation:

• (e) development of quality management programmes, including food safety:

• (f) quality assurance:

• (g) grower education and information:

• (h) the publication Avoscene:

• (i) day-to-day administration of NZAGA.

NZAGA must consult growers on how it proposes to spend levy money at its annual general meeting or at a special general meeting called for that purpose.

Every collection agent must supply, in writing, to NZAGA, as soon as is reasonably practicable, returns that contain any information that NZAGA requests in writing for the purposes of calculating the levy.

(1) In the case of avocados grown in New Zealand and sold for consumption in New Zealand as fresh fruit, every grower and collection agent must, in each levy year, keep records of—

• (a) the number of tray equivalents of avocados sold; and

• (b) the name of the grower; and

• (c) the price received or paid, or the value placed on the avocados; and

• (d) the amount of the levy collected by, or paid to, NZAGA, as the case may be; and

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

(2) In the case of avocados grown in New Zealand and exported, every grower and collection agent must, in each levy year, keep records of—

• (a) the name and any official mark that identifies the grower for export purposes (for example, the Property Identification Number); and

• (b) the number of tray equivalents of avocados exported; and

• (c) the price received or paid, or the value placed on the avocados; and

• (d) the amount of the levy collected by, or paid to, NZAGA, as the case may be.

(3) In the case of avocados grown in New Zealand and processed or sold for processing in New Zealand, every grower and collection agent must, in each levy year, keep records of—

• (a) the quantity in kilograms of avocados sold; and

• (b) the name of the grower or supplier; and

• (c) the price received or paid, or the value placed on the avocados; and

• (d) the amount of the levy collected by, or paid to, NZAGA, as the case may be; and

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

(4) NZAGA must, in each levy year, keep records of—

• (a) each amount of levy paid to it in the levy year, the date on which each levy is received, and the person who pays the levy in each case; and

• (b) the manner in which the levy money is spent or invested.

(5) The records referred to in subclauses (1) to (3) must be kept for at least 2 years after the date of payment of the levy to which the records relate.

(6) The records referred to in subclause (4) must be kept for at least 7 years after the levy year to which the records relate.

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

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

• (b) for the purposes of collecting levy money from each levy payer; 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) a compliance audit conducted under sections 15, 16, and 17 of the Act; or

  • (ii) producing any statement 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.

(1) Any grower who objects on conscientious or religious grounds to the manner of recovery by NZAGA 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 the amount to NZAGA.

A person appointed as auditor under section 15 of the Act must be remunerated by NZAGA at a rate agreed by the auditor and NZAGA.

(1) This clause applies to any dispute about—

• (a) whether any 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 (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 if—

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

• (b) the mediator resolves the dispute under clause 32.

(1) A mediator must 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 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 fixed by the President (or authorised person) and specified as an amount to be paid by that party.

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.

Except as provided in clause 29, only the parties to a dispute and the mediator may attend a conference organised by the mediator.

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

The following parties 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 a dispute; and

• (b) 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.

(1) A 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) 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, in person, by mail, or by email.

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

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

(1) A party who is dissatisfied with the mediator's decision under clause 32 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) 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.

(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.

(1) The Commodity Levies (Avocados) Order 2001 (SR 2001/204) is revoked.

(2) Amounts of levy that become payable to NZAGA under the Commodity Levies (Avocados) Order 2001 before the commencement of this order continue to be due and payable as if that order had not been revoked.