Wine (Non-grape Wine Levy) Order 2021

2021/273

Coat of Arms of New Zealand

Wine (Non-grape Wine Levy) Order 2021

Patsy Reddy, Governor-General

Order in Council

At Wellington this 27th day of September 2021

Present:
Her Excellency the Governor-General in Council

This order is made under sections 111 and 119 of the Wine Act 2003

(a)

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

(b)

on the recommendation of the Minister of Agriculture made in accordance with sections 5 and 6 of the Commodity Levies Act 1990 (as applied and modified by section 111 of the Wine Act 2003).

Order

1 Title

This order is the Wine (Non-grape Wine Levy) Order 2021.

2 Commencement

This order comes into force on 9 November 2021.

3 Interpretation

In this order, unless the context otherwise requires,—

association means the industry organisation known on the commencement of this order as Fruit Wine & Cider Makers Association of New Zealand Incorporated

Director-General means the chief executive of the Ministry for Primary Industries

fruit wine or vegetable wine means the product prepared from the complete or partial fermentation of any fruit, vegetables, grains, cereals, or preparations of fruit, vegetables, grains, or cereals, other than that produced solely from grapes

grape wine means the product of the complete or partial fermentation of fresh grapes, or a mixture of that product and products derived solely from grapes

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 rate means the rate set under clause 11

levy year means,—

(a)

for the first levy year, the period starting on 9 November 2021 and ending on 30 September 2022; and

(b)

for each later levy year, a 12-month period starting on 1 October and ending on 30 September in the following year

mead means the product prepared from the complete or partial fermentation of honey

non-grape wine

(a)

means any fruit wine or vegetable wine (including cider or perry) or mead; and

(b)

includes any volume of wine or mead described in paragraph (a) that forms part of another drink; but

(c)

does not include grape wine

produce, in relation to non-grape wine, means to carry out the final production of the wine before it is—

(a)

sold for consumption in New Zealand as a drink or part of another drink; or

(b)

exported as a drink or part of another drink

winery means a business undertaking that, for reward or for the purposes of trade, produces non-grape wine.

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 non-grape wine

(1)

A levy is imposed on all non-grape wine produced in New Zealand and—

(a)

sold for consumption in New Zealand as a drink or part of another drink; or

(b)

exported as a drink or part of another drink.

(2)

This clause is subject to clause 6.

6 Exemption from levy

The levy is not imposed on non-grape wine produced in New Zealand and used for research by facilities the association recognises as research facilities.

7 Levy must be paid to association

The levy is payable to the association.

8 Wineries primarily responsible for paying levy

A winery that produces non-grape wine is primarily responsible for paying the levy on the non-grape wine.

Levy rate

9 Levy must be paid at single rate

The levy must be paid at a single rate.

10 Basis of calculation of levy

The levy payable for a levy year must be calculated on the basis of the volume (in litres) of non-grape wine that, in that levy year, is—

(a)

sold for consumption in New Zealand as a drink or part of another drink; or

(b)

exported as a drink or part of another drink.

11 Actual levy rate

(1)

The actual levy rate for the first levy year is set at $0.001 per litre (exclusive of GST).

(2)

The association must set the actual levy rate for each later levy year, in accordance with its rules, at the annual general meeting or a special general meeting held in the previous levy year.

(3)

The levy rate may not be set for a later levy year unless—

(a)

the rate is no greater than the rate for the previous levy year; or

(b)

the rate is approved by wineries at the annual general meeting or a special general meeting and—

(i)

increases the rate from the previous levy year by no more than the annual percentage increase in the Consumers Price Index (All Groups) most recently published by Statistics New Zealand before the meeting; or

(ii)

is approved by the Minister of Agriculture.

12 When previous rate applies

If the association does not set the levy rate before the start of a levy year, the levy rate for that year is the rate most recently set under clause 11.

13 Notifying levy rate

As soon as practicable after it has set a levy rate for any levy year, the association must notify that rate—

(a)

in the Gazette; and

(b)

by newsletter to all potential levy payers known to the association.

Paying levy

14 When levy payable

(1)

Wineries must pay the levy annually.

(2)

Within 30 days after the end of each levy year, the association must send each winery a return that the winery must complete in accordance with clause 22.

(3)

The levy—

(a)

is due for payment on the day on which a winery receives a return from the association under subclause (2); and

(b)

must be paid no later than the 20th day of the month after the month in which the return is received.

15 Additional levy payable if levy not paid in time

If a winery does not pay any amount of levy money by the close of the last day for payment, the winery must pay an additional levy of 10% of the unpaid amount.

16 Maximum and minimum levy payments

(1)

The maximum amount of levy payable by a winery in a levy year is $2,000.

(2)

The minimum amount of levy payable by a winery in a levy year is $100.

(3)

The amounts specified in this clause do not include—

(a)

GST; or

(b)

any additional levy payable under clause 15.

17 Conscientious objection to paying levy

(1)

If a winery objects on conscientious or religious grounds to paying levy money as provided for in this order, it must pay the levy money to the Director-General.

(2)

The Director-General must pay the amount to the association.

Spending levy money

18 Association must spend levy money

The association must—

(a)

spend all levy money paid to it; and

(b)

invest the money until it is spent.

19 Purposes for which association may spend levy money

(1)

The association may spend levy money only for the following purposes relating to non-grape wine:

(a)

product research and development:

(b)

market research and development:

(c)

promotion of non-grape wine:

(d)

quality assurance:

(e)

industry representation and education:

(f)

day-to-day administration to support the purposes set out in paragraphs (a) to (e).

(2)

See section 10 of the Commodity Levies Act 1990 for further rules about the use of levy money.

20 Association must consult on spending levy money

The association must, at each annual general meeting,—

(a)

present its accounts and consult wineries about how the association spends the levy money:

(b)

allow wineries to speak on all matters relating to how the association spends the levy money.

21 Remuneration of auditors

The association must remunerate a person appointed as an auditor under section 15 of the Commodity Levies Act 1990 at a rate determined by the Minister of Agriculture after consultation with the association.

Returns

22 Wineries must provide returns to association

(1)

A winery must provide a return to the association no later than the last day for payment of the levy under clause 14.

(2)

The winery must declare on the return—

(a)

the volume (in litres) of non-grape wine that the winery produced in that levy year; and

(b)

the volume (in litres) of non-grape wine that the winery produced (at any time) and that was, in that levy year,—

(i)

sold for consumption in New Zealand as a drink or part of another drink; or

(ii)

exported as a drink or part of another drink; and

(c)

the levy payable by the winery for that levy year.

Records and confidentiality

23 Wineries and association must keep records

(1)

A winery must, for every levy year, keep records of—

(a)

the information declared in the return under clause 22(2)(a) and (b) for that levy year; and

(b)

each amount of levy paid to the association and the date of each payment.

(2)

The association must, for every levy year, keep records of—

(a)

each amount of levy money paid to it; and

(b)

the winery that paid each amount and the date the amount was received; and

(c)

how it invested levy money (if at all); and

(d)

how and when it spent levy money.

(3)

The records required by this clause must be kept for at least 3 years after the end of the levy year to which they relate.

24 Information is confidential

(1)

This clause applies to information obtained—

(a)

under this order; or

(b)

under the Wine Act 2003 or the Commodity Levies Act 1990 in relation to this order.

(2)

A person must not disclose information to anyone other than an officer, employee, or agent of the association, unless the disclosure is—

(a)

the giving of evidence in any legal proceedings taken in relation to this order; or

(b)

required by law; or

(c)

the production of records or accounts under section 17(1) of the Commodity Levies Act 1990; or

(d)

the production of any statement under section 25 of the Commodity Levies Act 1990.

(3)

An officer, employee, or agent of the association may disclose information—

(a)

for statistical or research purposes that do not require the disclosure of personal information; or

(b)

for the purpose of invoicing or collecting the levy; or

(c)

for the purpose of communicating with and supporting a levy-paying winery, provided the information relates only to that winery; or

(d)

if every identifiable person to whom the information relates consents; or

(e)

as required by law.

Dispute resolution

25 Mediating disputes

(1)

This clause and clauses 26 to 35 apply to any dispute about—

(a)

whether a winery is required to pay the levy; or

(b)

the amount of levy payable.

(2)

If a dispute arises that the parties to the dispute are unable to resolve by themselves, the parties must follow the mediation process set out in clauses 26 to 35.

26 Appointing mediators

(1)

A party to a 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.

(2)

If asked, the President (or a person authorised by the President to do so) may appoint a person to resolve the dispute by mediation.

(3)

The mediator’s appointment ends when—

(a)

the parties to the dispute resolve it by agreement; or

(b)

the mediator resolves the dispute under clause 33.

27 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 to do so) must—

(a)

set 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—

(a)

agreed under subclause (1); or

(b)

set and specified under subclause (2).

28 Conferences to resolve disputes

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 email or post; and

(c)

preside at the conference.

29 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 in all the circumstances to do so.

30 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.

31 Right to be heard

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

32 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 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 any person giving evidence at a conference of the parties to verify the evidence by statutory declaration.

33 Mediator may resolve dispute in certain cases

(1)

A mediator may resolve a dispute for the parties if—

(a)

the dispute is not resolved at a conference; 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 the decision.

(3)

The parties must comply with the mediator’s decision.

34 Mediation costs

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

35 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 by filing a notice of appeal—

(a)

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)

set the 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 any process for the enforcement of the mediator’s decision.

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 comes into force on 9 November 2021. It imposes a levy on all non-grape wine produced in New Zealand and either sold for consumption in New Zealand as a drink (or part of another drink) or exported as a drink (or part of another drink).

The winery that carries out the final production of non-grape wine is primarily responsible for paying the levy on the wine. The levy is set at $0.001 per litre for the first levy year (which ends on 30 September 2022) but may be varied for subsequent levy years in certain circumstances. The minimum amount of levy payable per winery is $100 per year, and this order increases the maximum amount of levy payable per winery to $2,000 per year. The levy is payable to the Fruit Wine & Cider Makers Association of New Zealand Incorporated.

The order is a confirmable instrument under section 47B of the Legislation Act 2012. It is revoked at the close of 31 December 2022, unless earlier confirmed 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 8 November 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: 30 September 2021.

This order is administered by the Ministry for Primary Industries.