Reprint as at 28 August 2020
(LI 2020/154)
Patsy Reddy, Governor-General
At Wellington this 6th day of July 2020
Present:The Right Hon Jacinda Ardern presiding 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 100ZB of the Biosecurity Act 1993—
on the advice and with the consent of the Executive Council; and
on the recommendation of the Minister for Biosecurity made after being satisfied of the matter described in section 100ZB(6) of that Act.
This order is the Biosecurity (Response—Apples and Pears Levy) Order 2020.
This order comes into force on 10 August 2020.
In this order, unless the context otherwise requires,—
Act means the Biosecurity Act 1993
agreement—
means the deed; and
includes any operational agreement of the kind referred to in section 100Z(3) of the Act that is made between—
the Director-General; and
NZAPI
apple means any fruit of any species of the genus Malus, and any variety of those species
deed means—
the Government Industry Agreement for Biosecurity Readiness and Response deed signed by NZAPI (under its former name, Pipfruit New Zealand Incorporated) on 3 December 2014 (as may be revised or amended from time to time); and
includes a deed of the kind described in section 100Z(2) of the Act that replaces the deed referred to in paragraph (a)
grower means the occupier of land—
that is used in any levy year for growing apples or pears; and
that has 2 or more planted hectares of apples or pears (or a combination of apples and pears) as at 1 August of the current calendar year
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 the money paid or payable under this order as a levy
levy rate means the levy rate set under clause 9
levy year means,—
for the first levy year, the period starting on 10 August 2020 and ending on 31 July 2021; and
for each subsequent levy year, the period of 12 months that starts on 1 August and ends on 31 July
nashi pear means any fruit of—
the species Pyrus pyrifolia; or
any plant that is a hybrid of that species and the species Pyrus ussuriensis
NZAPI means the industry organisation known on the commencement of this order as New Zealand Apples and Pears Incorporated
occupier means—
a person who has the right to occupy land under a tenancy granted for a term of 12 months or more; or
if paragraph (a) does not apply, the owner of the land
pear means any fruit of any species of the genus Pyrus (including nashi pears)
planted hectares has the meaning given in clause 6
response activity has the meaning given in section 100Y(3) of the Act.
Clause 3 levy year: replaced, on 28 August 2020, by clause 4 of the Biosecurity (Response—Apples and Pears Levy) Amendment Order 2020 (LI 2020/229).
(1)
A levy is imposed on apples and pears grown in New Zealand by growers for commercial purposes, including for domestic supply, processing, and export.
(2)
The levy must be paid to NZAPI.
NZAPI must spend all levy money paid to it on meeting its commitments relating to response activities under the agreement.
NZAPI may invest levy money until it is spent.
The levy must be calculated on the basis of planted hectares.
In this order, planted hectares means the number of hectares of land a grower has planted in apples or pears to the nearest hectare, determined as at 1 August of the current calendar year.
(3)
In subclause (2), nearest hectare is determined as follows:
any total area that includes a fraction of 0.5 or more hectares must be rounded up to the nearest hectare; and
any total area that includes a fraction of less than 0.5 hectares must be rounded down to the nearest hectare.
The levy must be paid at a single rate.
The maximum rate of levy payable for a levy year is $100 per planted hectare.
The maximum levy rate is exclusive of GST.
NZAPI are responsible for setting the levy rate.
For the first levy year, the levy rate is $50 per planted hectare.
For each subsequent levy year, NZAPI must—
set the levy rate at an annual general meeting or at a special general meeting held for that purpose; and
permit all growers to—
attend the meeting; and
vote on the levy rate.
(4)
If NZAPI does not set the levy rate before the start of a levy year, the levy for that year is the rate most recently set under this clause.
After setting the rate, NZAPI must notify the new rate and its starting date—
in the industry organisation’s magazine (Pipfruit Newz) or a similar publication; and
by post or email to all growers known to NZAPI; and
on the NZAPI website.
Notification under subclause (1)(b) is treated as occurring,—
by post, at the time the notice would have been delivered in the ordinary course of post; and
by email, at the time of transmission of the email.
Growers are primarily responsible for paying the levy.
A grower 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.
The Director-General must pay the amount to NZAPI.
NZAPI is responsible for collecting the levy from growers.
NZAPI must not charge a fee for collecting the levy.
The due date for payment of the levy is the date on which the grower receives an invoice for the levy money from NZAPI.
The last date for payment of the levy is the 20th day of the month after the month in which the due date for payment occurs.
If any amount of the levy (including GST payable on that amount, if applicable) 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 NZAPI, in addition to the amount otherwise payable.
A further 2% of the amount owing is payable at the end of each additional month in which the amount remains unpaid.
A grower must, for each levy year, keep records of—
the grower’s planted hectares; and
the amount of levy money paid to NZAPI or to the Director-General and the date of payment.
Growers must keep the records for 7 years after the date on which they paid the levy.
A grower must provide NZAPI with information from the records as soon as is reasonably practicable after receiving a written request from NZAPI for the information.
NZAPI must, for each levy year, keep records of—
each amount of levy money it receives; and
the date on which each amount of levy money is received; and
the name of the grower who paid the levy money; and
the planted hectares for each grower who paid a levy; and
how and when the levy money was spent or invested.
NZAPI must keep the records for 7 years after the date on which they received the levy.
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.
The fees and allowances are payable by NZAPI at a rate agreed to by the Minister and NZAPI.
This clause applies to any dispute about—
whether a person is required to pay the levy; or
the amount of levy payable.
The parties to a dispute may agree to submit the dispute to arbitration.
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.
For the purposes of the Arbitration Act 1996,—
an agreement under subclause (2) is an arbitration agreement; and
the arbitrator (whether appointed by agreement or under subclause (3)) is an arbitral tribunal.
Subject to clause 22, 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.
However, the provisions of this order prevail if there is any inconsistency between those provisions and the provisions of the Arbitration Act 1996.
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.
A party to a dispute who is dissatisfied with the arbitrator’s decision may appeal to the District Court against the decision.
The appeal must be brought by the filing of a notice of appeal within 28 days after the making of the decision concerned, or within any longer time that the District Court Judge allows.
The Registrar of the court must—
fix the 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 all parties to the dispute.
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.
Issued under the authority of the Legislation Act 2012.
Date of notification in Gazette: 9 July 2020.
This is a reprint of the Biosecurity (Response—Apples and Pears Levy) Order 2020 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/.
Biosecurity (Response—Apples and Pears Levy) Amendment Order 2020 (LI 2020/229)