Commodity Levies (Feijoas) Order 2020

2020/300

Coat of Arms of New Zealand

Commodity Levies (Feijoas) Order 2020

Patsy Reddy, Governor-General

Order in Council

At Wellington this 7th day of December 2020

Present:
Her Excellency the Governor-General in Council

This order is made under section 4 of the Commodity Levies Act 1990—

(a)

on the advice and with the consent of the Executive Council; and

(b)

on the recommendation of the Minister of Agriculture given in accordance with sections 5 and 6 of that Act.

Order

1 Title

This order is the Commodity Levies (Feijoas) Order 2020.

2 Commencement

This order comes into force on 7 January 2021.

3 Interpretation

In this order, unless the context otherwise requires,—

collection agent means a person whose business is or includes—

(a)

buying feijoas from a commercial grower (other than through another collection agent) for processing, resale, or export; or

(b)

selling or exporting feijoas on behalf of a commercial grower

commercial grower means a person—

(a)

whose business is or includes producing feijoas; and

(b)

who has more than 50 feijoa trees

feijoa means fruit of the species Feijoa sellowiana or any fruit that is a hybrid of that species

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

levy means the levy imposed by clause 5

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

levy year means,—

(a)

for the first levy year, the period starting on 7 January 2021 and ending on 31 July 2021; and

(b)

for each subsequent levy year (other than the last levy year), a period of 12 months starting on 1 August and ending on 31 July; and

(c)

for the last levy year, the period starting on 1 August 2026 and ending on 6 January 2027

NZFGA means the industry organisation known as New Zealand Feijoa Growers Association Incorporated

processed, in relation to feijoas,—

(a)

means feijoas that are bottled, canned, dehydrated, dried, freeze-dried, frozen, or preserved; and

(b)

includes feijoa concentrate, pulp, purée, or essence (whether alone or with other ingredients).

4 GST

A reference in this order to the payment or recovery of a levy must be read as including the payment or recovery of any GST payable on the levy.

Levy imposed

5 Levy on feijoas

A levy is imposed on feijoas produced in New Zealand by commercial growers for commercial purposes.

6 Basis for calculating levy

The levy is calculated,—

(a)

for feijoas processed by or for the commercial grower in New Zealand, on the basis of the value of the unprocessed feijoas (exclusive of GST), which is itself calculated from the value (per kilogram) of unprocessed feijoas as set by NZFGA at its annual general meeting or special general meeting for that levy year:

(b)

for feijoas sold by, or on behalf of, the commercial grower in New Zealand, on the basis of the price of the feijoas (exclusive of GST) at the first point of sale:

(c)

for feijoas exported by, or on behalf of, the commercial grower, on the basis of the value (exclusive of GST) received by the commercial grower after all offshore costs (including international freight) are deducted.

7 Actual levy rate

(1)

The levy must be paid at a single rate.

(2)

NZFGA must set the actual levy rate for the first levy year in accordance with its rules.

(3)

NZFGA must set the actual levy rate for each later levy year at either of the following meetings:

(a)

the annual general meeting:

(b)

a special general meeting called for the purpose.

(4)

The levy rate must not exceed 3% of the price or value that is the basis for the calculation of the levy under clause 6.

(5)

If NZFGA does not set the actual levy rate for a levy year, the levy rate currently applying continues to apply.

8 When levy rate takes effect

(1)

The levy rate for the first levy year takes effect on and from the date it is notified under clause 9.

(2)

The levy rate for each subsequent levy year takes effect on and from the later of the following:

(a)

the date the levy year starts:

(b)

the date the levy is set under clause 7(3).

9 Notifying actual levy rate

(1)

NZFGA must notify the actual levy rate as soon as practicable after setting it.

(2)

It must be notified in—

(a)

The Orchardist; and

(b)

NZFGA’s newsletter.

(3)

If The Orchardist or NZFGA’s newsletter ceases to be published, it must be notified in—

(a)

any publication that replaces the relevant publication; or

(b)

if no publication replaces it, a publication that the Minister of Agriculture specifies by notice in the Gazette.

Paying levy

10 Levy paid to NZFGA

The levy is payable to NZFGA.

11 Commercial growers primarily responsible for paying levy

Commercial growers are primarily responsible for paying the levy.

12 When collection agent must pay levy

(1)

If a commercial grower uses a collection agent, the collection agent must pay the levy.

(2)

The collection agent may charge NZFGA a collection fee of not more than 5% of the levy payable (exclusive of GST), plus the GST payable on the fee, by deducting the fee, plus GST, before paying the levy.

13 Conscientious objection to paying NZFGA

If a commercial grower or collection agent objects on conscientious or religious grounds to paying the levy to NZFGA,—

(a)

the commercial grower or collection agent must pay the equivalent amount to the Director-General of the Ministry for Primary Industries; and

(b)

the Director-General must pay the amount to NZFGA.

14 Information to determine payment

(1)

NZFGA may request a commercial grower or a collection agent to provide it with any information that it reasonably requires to determine the levy that the commercial grower or collection agent must pay.

(2)

NZFGA must make the request by post or email or by other electronic means.

(3)

The commercial grower or collection agent must provide the information as soon as practicable.

15 Due dates for payment

(1)

The due date for payment is as follows:

(a)

the date on which the feijoas are processed when a commercial grower processes their own feijoas or they are processed on the grower’s behalf:

(b)

the date on which the feijoas are sold when a commercial grower sells their feijoas in New Zealand to anyone, including a collection agent:

(c)

the date on which the collection agent sells the feijoas when a collection agent sells a commercial grower’s feijoas in New Zealand on behalf of the commercial grower.

(2)

If a commercial grower exports their feijoas, the due date for payment is the earlier of the dates on which the feijoas are—

(a)

loaded on an international carrier for export:

(b)

sold overseas.

(3)

If a collection agent exports a commercial grower’s feijoas on behalf of the grower, the due date for payment is the earlier of the dates on which the feijoas are—

(a)

loaded on an international carrier for export:

(b)

sold overseas.

16 Latest date for payment

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

Spending levy money

17 NZFGA must spend levy money

NZFGA must—

(a)

spend all levy money paid to it; and

(b)

invest all levy money until it is spent.

18 Purposes for which NZFGA may spend levy money

(1)

NZFGA must spend levy money only for the following purposes:

(a)

product research and development:

(b)

market research and development:

(c)

promotion of feijoas:

(d)

quality assurance:

(e)

education:

(f)

day-to-day administration of NZFGA.

(2)

NZFGA must not spend the levy money on commercial or trading activities.

19 Consultation on spending levy money

(1)

NZFGA must, in each levy year,—

(a)

provide commercial growers with details of how it spent the levy money in the previous levy year; and

(b)

consult commercial growers on how it proposes to spend the levy money in the current levy year.

(2)

For the purposes of subclause (1), NZFGA must—

(a)

prepare accounts of the levy money received and spent in the previous levy year; and

(b)

prepare a draft budget and draft plan of how it proposes to spend the levy money in the current levy year; and

(c)

circulate them to all commercial growers a reasonable time before NZFGA’s annual general meeting or special general meeting.

(3)

Commercial growers who are members of NZFGA must approve the accounts, budget, and plan at the annual general meeting or special general meeting.

Records and confidentiality

20 Records that commercial growers must keep

(1)

A commercial grower must collect the following information for each levy year:

(a)

each amount of levy money paid to NZFGA and the date of each payment:

(b)

each quantity of feijoas processed by or for the commercial grower:

(c)

each quantity of feijoas sold by the commercial grower and the price received for each quantity:

(d)

each quantity of feijoas exported by the commercial grower and the basis of the value received for each quantity:

(e)

the full name and contact details of each collection agent and exporter to whom the commercial grower sells feijoas and the price paid for each quantity.

(2)

The commercial grower must keep the information for at least 2 years after the end of the levy year to which it relates.

21 Records that collection agents must keep

(1)

A collection agent must collect the following information for each levy year:

(a)

each amount of levy money paid to NZFGA and the date of each payment:

(b)

the price paid for feijoas purchased from each commercial grower:

(c)

the price received for feijoas sold by the collection agent on behalf of each commercial grower:

(d)

the price received for feijoas exported by the collection agent on behalf of each commercial grower:

(e)

the full name and contact details of each commercial grower referred to in paragraph (b), (c), or (d).

(2)

The collection agent must keep the information for at least 2 years after the end of the levy year to which it relates.

22 Records that NZFGA must keep

NZFGA must collect the following information for each levy year:

(a)

each amount of levy money paid to it:

(b)

when the levy money was paid:

(c)

who paid the levy money:

(d)

how it spent or invested all levy money paid to it, including when it spent or invested any levy money.

23 Confidentiality of information

(1)

This clause applies to information obtained—

(a)

under the Act in relation to this order; or

(b)

under or because of this order.

(2)

An officer or employee of NZFGA, or any person involved in collecting levy money, must not disclose the information to anyone other than an officer or employee of NZFGA.

(3)

However, NZFGA may disclose the information for the purposes of—

(a)

producing records or accounts under section 17(1) of the Act; and

(b)

producing a statement under section 25 of the Act; and

(c)

giving evidence in legal proceedings taken under or in relation to this order; and

(d)

determining the voting entitlements of commercial growers; and

(e)

counting the votes of commercial growers; and

(f)

statistical and research purposes that do not involve the disclosure of personal information; and

(g)

invoicing for, and collecting, levy money.

Dispute resolution

24 Appointing mediators

(1)

This clause applies to a dispute about—

(a)

whether a person is required to pay the levy; or

(b)

the amount of levy payable.

(2)

A 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 resolve the dispute by mediation.

(3)

If asked, the President, or a person authorised by the President, 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 31.

25 Remunerating mediators

(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 a mediator’s remuneration, the President, or a person authorised by the President, must—

(a)

fix an amount or several amounts to 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).

26 Conferences under control of mediator

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 post or email or by other electronic means; and

(c)

preside at the conference.

27 Representatives

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.

28 Conferences must be held in private

Only the parties to a dispute, the mediator, and representatives the mediator allows to attend may attend a conference organised by the mediator.

29 Right to be heard

Each person who attends a conference may be heard at the conference.

30 Evidence

(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 their own initiative,—

(a)

seek and receive any evidence that they think desirable to resolve the dispute; and

(b)

make any investigations and inquiries that they think desirable to resolve the dispute.

(3)

A mediator may require a person giving evidence at a conference to verify the evidence by statutory declaration.

31 Mediator may resolve dispute in certain cases

(1)

A mediator may resolve a dispute for the parties if—

(a)

the mediator has organised and presided at a conference of the parties, but the dispute has not been resolved; or

(b)

the mediator believes that the parties are unlikely to resolve the dispute, whether or not they confer directly.

(2)

A mediator who resolves a dispute under subclause (1) must give each party written notice of their decision and the reasons for that decision.

(3)

The parties must comply with the mediator’s decision.

32 Mediation costs

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

33 Appeal to District Court

(1)

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

(2)

The appeal must be brought—

(a)

by filing a notice of appeal within 28 days after the decision is made; or

(b)

within any longer time that the District Court Judge allows.

(3)

The Registrar of the court must—

(a)

fix the date, 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 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.

Compliance audits

34 Remunerating auditors

NZFGA 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 NZFGA.

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 order, which comes into force on 7 January 2021, imposes a levy on feijoas produced in New Zealand by commercial growers for commercial purposes.

Commercial growers are primarily responsible for the payment of the levy. However, if a commercial grower sells feijoas to a collection agent, the collection agent must pay the levy and recover it from the commercial grower. The levy is payable to New Zealand Feijoa Growers Association Incorporated.

Before this order, a levy was imposed on feijoas by the Commodity Levies (Feijoas) Order 2014. That order was revoked at the close of 3 August 2020 and is replaced by this order.

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 confirmed earlier by an Act of Parliament. That stated time is the applicable deadline under section 47C(1)(b) of that Act. If this order is confirmed, it will be revoked on 6 January 2027 (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: 10 December 2020.

This order is administered by the Ministry for Primary Industries.