Reprint as at 20 December 2019
(LI 2019/87)
Patsy Reddy, Governor-General
At Wellington this 6th day of May 2019
Present:Her Excellency the Governor-General in Council
Changes authorised by subpart 2 of Part 2 of the Legislation Act 2012 have been made in this official reprint.
Note 4 at the end of this reprint provides a list of the amendments incorporated.
This order is administered by the Ministry for Primary Industries.
This order is made under section 4 of the Commodity Levies Act 1990—
on the advice and with the consent of the Executive Council; and
on the recommendation of the Minister of Agriculture given in accordance with sections 5 and 6 of that Act.
This order is the Commodity Levies (Potatoes) Order 2019.
This order comes into force on 10 June 2019.
Order: confirmed, on 20 December 2019, by section 12(k) of the Subordinate Legislation Confirmation Act 2019 (2019 No 82).
In this order, unless the context otherwise requires,—
Act means the Commodity Levies Act 1990
collection agent means a person whose business is or includes—
buying potatoes for resale, processing in New Zealand, or export:
selling, processing, or exporting potatoes on behalf of a grower
grower means a person whose business is or includes the commercial production of potatoes
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 rate means the rate set under clause 13
levy year means,—
for the first levy year, the period starting on 10 June 2019 and ending on 30 September 2020:
for the last levy year, the period starting on 1 October 2024 and ending on 9 June 2025:
in every other case, a 1-year period starting on 1 October and ending on 30 September
mediator means—
a person appointed under clause 24; and
for a particular dispute, a mediator appointed to resolve the dispute
notional process value, in relation to potatoes, means the amount of money that, in the opinion of PNZ, a grower would have received if, immediately before the potatoes were processed, the grower had sold the potatoes to a similar processor situated in the same locality
PNZ means Potatoes New Zealand Incorporated
potatoes means potatoes grown for commercial purposes in New Zealand for—
seed; and
processing; and
exporting; and
the fresh domestic market, which includes—
markets where food is sold by horticultural producers selling their own horticultural produce only (farmers’ markets); and
farm-gate sales
process, in relation to potatoes, means to perform any chemical or mechanical process.
(1)
A levy is imposed on potatoes grown by a grower.
(2)
The levy is payable to PNZ.
Growers are primarily responsible for paying the levy.
No grower is exempt from paying the levy.
A collection agent must, at the first point of sale, pay the levy (and any GST payable on it) if the collection agent—
buys potatoes from a grower for resale, processing, or export; or
sells, processes, or exports potatoes on behalf of a grower.
A collection agent may recover the levy (and any GST payable on it) from a grower—
by deducting the amount of the levy (and any GST payable on it) from the payment made to the grower; or
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.
(4)
A collection agent who pays the levy to PNZ may deduct from the levy a collection fee of not more than 4% of the amount of levy collected (excluding GST) plus the GST payable on the fee.
A grower or collection agent who objects on conscientious or religious grounds to the manner of recovery of levy money by PNZ may pay the amount concerned to the Director-General of the Ministry for Primary Industries.
The Director-General must pay the amount to PNZ.
If potatoes are sold directly to the public by growers, processed by growers, or exported by growers, the due date for payment of the levy by growers is 30 June.
The levy payable by growers is to be paid annually for the preceding 12 months.
The latest date for payment of the levy by growers is 30 September in the same calendar year.
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.
(5)
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.
If a grower does not pay an amount of levy money by the required date, the grower must pay PNZ,—
for the first month, an additional levy of 10% of the unpaid amount; and
for each subsequent month that the amount (or part of the amount) remains unpaid after the required date, an additional levy of 2% of the amount of the unpaid levy (including additional levies owing under this clause).
The levy payable in a levy year must be calculated on the basis of the gross sales value at the first point of sale, except where—
the commodity is exported, in which case the levy will be calculated on the price received by the grower after deduction of all offshore costs (including international freight); or
the commodity is processed before the first point of sale, in which case the levy will be a percentage of the notional process value.
The value referred to in subclause (1) is, in each case, exclusive of GST.
The levy must be paid at a single rate.
The maximum rate of levy for potatoes is 1% of, as applicable,—
the gross sales value at the first point of sale; or
the price received by the grower after deduction of all offshore costs (including international freight); or
the notional process value.
The maximum rate of levy is exclusive of GST.
PNZ must set the levy rate for the first levy year by any means by which it can lawfully make a decision.
For each subsequent levy year, the levy rate must be set by a vote at PNZ’s annual general meeting.
If a levy rate is not set under subclause (2) before the beginning of a levy year, the levy for that year is payable at the rate last set under this clause.
If any levy rate set under clause 13 differs from the levy rate applying in the previous year, PNZ must, as soon as practicable after setting the rate, notify the new levy rate—
in the NZGROWER; and
in the PNZ email newsletter; and
by direct mail to all growers and collection agents known to PNZ; and
in the Gazette.
If the NZGROWER ceases to be published, the levy rate must be notified in—
any publication that replaces it; or
if no publication replaces it, a publication that the Minister of Agriculture specifies for the purposes of this order by notice in the Gazette.
PNZ must—
spend all the levy money paid to it; and
pending expenditure, invest all levy money until it is spent.
PNZ may spend levy money for any or all of the following purposes relating to potatoes:
research and development:
market development and promotion:
development of quality assurance:
education and training:
information and communication:
grower representation:
day-to-day administration of PNZ:
protection or improvement of plant health:
readiness and response to biosecurity threats.
PNZ must not spend levy money on commercial or trading activities.
PNZ must consult on how to spend levy money by consulting—
growers at PNZ’s annual general meeting, or at a special general meeting; and
elected grower representatives.
A payment of levy money to PNZ by a grower or collection agent must be accompanied by a written return that—
states the value of the potatoes to which the payment relates; and
identifies the grower of the potatoes.
PNZ 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 kept in accordance with clause 20 or 21, as applicable.
As soon as is reasonably practicable after receiving a request under subclause (2), a grower or collection agent must supply PNZ with a written return of the information requested.
PNZ must keep records of the following for each levy year:
each amount of levy money paid to it; and
the date on which each amount of levy money was received; and
the person who paid each amount of levy money; and
how (if at all) levy money was invested; and
how levy money was spent.
A grower who pays levies directly to PNZ must keep records of—
the amount of the levy paid; and
the sales that the levies were deducted from.
A grower whose levies are paid by a collection agent must keep records of—
the sales that the levies were deducted from; and
the name and address of the collection agent.
Collection agents must keep records of—
the amount of the levy paid: and
the name, trading name, and address of the grower.
The records required by clauses 19 to 21 must be kept for at least 2 years from the date of payment of the levy to which they relate.
This clause applies to information obtained—
under or because of this order; or
under the Act in relation to this order.
A person must not disclose information to anyone other than an officer or employee of PNZ unless the disclosure is—
the giving of evidence in any legal proceedings taken in relation to this order; or
required by law; or
the production of records or accounts under section 17(1) of the Act; or
the production of any statement under section 25 of the Act.
PNZ may disclose information—
for statistical or research purposes that do not involve the disclosure of personal information; or
for the purpose of invoicing or collecting the levy; or
if every identifiable person to whom the information relates consents; or
as required by law.
This clause applies to a dispute about—
whether a person is required to pay the levy; or
the amount of levy payable.
A 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.
The mediator’s appointment ends if—
the parties to the dispute resolve the dispute by agreement; or
the mediator resolves the dispute under clause 31.
A mediator must be paid remuneration (by way of fees and allowances) as agreed by the parties to the dispute.
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, must—
fix an amount or several amounts to be paid to the mediator as remuneration; and
specify the amount (if any) that each party must pay.
Each party must pay to the mediator the amount or amounts fixed and specified under subclause (2).
A mediator must—
organise the date, time, and place for each conference to be held by the mediator; and
notify the parties by post or email; and
preside at the conference.
Unless clause 28 applies, only the parties to a dispute may attend a conference with the mediator.
A mediator may allow a representative of a party to a dispute to attend a conference if the mediator is satisfied that it is appropriate to do so in all the circumstances.
Each person who attends a conference may be heard at the conference.
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.
A mediator may, on their own initiative,—
seek and receive any evidence that they think desirable to resolve the dispute; and
make any investigations and inquiries that they think desirable to resolve the dispute.
A mediator may require a person giving evidence at a conference to verify the evidence by statutory declaration.
A mediator may resolve a dispute for the parties if—
the mediator has organised and presided at a conference of the parties, but the dispute has not been resolved; or
the mediator believes that the parties are unlikely to resolve the dispute, whether or not they confer directly.
A mediator who resolves a dispute under subclause (1) must give each party written notice of the mediator’s decision and the reasons for the decision.
The parties must comply with the mediator’s decision.
Each party must pay their own costs in relation to the mediation.
A party to a dispute who is dissatisfied with the mediator’s decision may appeal to the District Court against the decision.
The appeal must be brought by filing a notice of appeal within 28 days after the decision is made or within any longer time that a District Court Judge allows.
The Registrar of the court must—
fix the date, time, and place for the hearing of the appeal; and
notify the appellant and the other parties to the dispute; and
serve a copy of the notice of appeal on every other party to the dispute.
Each party to the dispute may appear and be heard at the hearing of the appeal.
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.
PNZ must remunerate a person appointed as an auditor under section 15 of the Act at a rate determined by the Minister of Agriculture after consultation with PNZ.
The Commodity Levies (Potatoes) Order 2013 (SR 2013/142) is revoked.
Michael Webster,Clerk of the Executive Council.
This order, which comes into force on 10 June 2019, imposes a levy on potatoes grown by growers. The levy must be paid to Potatoes New Zealand Incorporated by growers, or by collection agents who sell or export potatoes from growers.
Before this order, a levy was imposed on potatoes by the Commodity Levies (Potatoes) Order 2013. This order revokes and replaces that order. The revocation does not affect amounts of levy money that become payable under that order before the revocation.
This order is a confirmable instrument under section 47B of the Legislation Act 2012. It is revoked at the close of 30 June 2020, unless confirmed earlier by an Act of Parliament. That stated time is the applicable deadline under section 47C(1)(a) of that Act. If this order is confirmed, it will be revoked on 9 June 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: 9 May 2019.
This is a reprint of the Commodity Levies (Potatoes) Order 2019 that incorporates all the amendments to that order as at the date of the last amendment to it.
Reprints are presumed to correctly state, as at the date of the reprint, the law enacted by the principal enactment and by any amendments to that enactment. Section 18 of the Legislation Act 2012 provides that this reprint, published in electronic form, has the status of an official version under section 17 of that Act. A printed version of the reprint produced directly from this official electronic version also has official status.
Editorial and format changes to reprints are made using the powers under sections 24 to 26 of the Legislation Act 2012. See also http://www.pco.parliament.govt.nz/editorial-conventions/.
Subordinate Legislation Confirmation Act 2019 (2019 No 82): section 12(k)