Commodity Levies (Summerfruit) Order 2002
Commodity Levies (Summerfruit) Order 2002
Commodity Levies (Summerfruit) Order 2002: revoked, on 2 October 2008, by clause 34(1) of the Commodity Levies (Summerfruit) Order 2008 (SR 2008/344).
Commodity Levies (Summerfruit) Order 2002
Reprint
as at 2 October 2008
Commodity Levies (Summerfruit) Order 2002
(SR 2002/244)
Commodity Levies (Summerfruit) Order 2002: revoked, on 2 October 2008, by clause 34(1) of the Commodity Levies (Summerfruit) Order 2008 (SR 2008/344).
Commodity Levies (Summerfruit) Order 2002: expired, on 26 August 2008, pursuant to section 13(1) of the Commodity Levies Act 1990 (1990 No 127).
Note
Changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in this eprint.
A general outline of these changes is set out in the notes at the end of this eprint, together with other explanatory material about this eprint.
This order is administered in the Ministry of Agriculture and Forestry.
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Preamble
At Wellington this 26th day of August 2002
Pursuant to section 4 of the Commodity Levies Act 1990, Her Excellency the Governor-General, acting on the advice and with the consent of the Executive Council, makes the following order.
Contents
1 Title
This is the Commodity Levies (Summerfruit) Order 2002.
2 Commencement
3 Interpretation
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(1) In this order, unless the context otherwise requires,—
collection agent means a person whose business is or includes—
(a) buying summerfruit from a grower for resale, processing, or export; or
(b) selling, processing, or exporting summerfruit on behalf of a grower
fob value (free on board value), in relation to any summerfruit exported from New Zealand for which a customs entry is made, means the value of the summerfruit specified in the declaration in, attached to, or forming part of, the customs entry (before the deduction of any costs or charges)
grower means a person who is in the business of producing summerfruit for commercial purposes
GST means goods and services tax
Heinz-Wattie's means Heinz-Wattie's Limited
levy means the levy imposed by clause 4
levy money means money paid under this order as levy
levy year —
(a) means a period of 12 months beginning on 1 September and ending on 31 August; and
(b) includes the period beginning on the 28th day after the date of the notification of this order in the Gazette and ending on 31 August 2003
mediator means a person appointed under clause 23; and, in relation to a dispute, means a mediator appointed to resolve that dispute
notional process value means the amount of money that, in the opinion of Summerfruit New Zealand, the grower would have received if, immediately before the summerfruit was processed, the grower had sold it to a similar processor in the grower's locality (excluding GST and before the deduction of any costs and charges)
processed includes bottled, canned, dehydrated, evaporated, dried, freeze-dried, frozen, juiced, pressed, and preserved,—
(a) whether as summerfruit or as concentrate, pulp, puree, sauce, or some other product; and
(b) whether alone or with other ingredients
selling price —
(a) means the price at which the summerfruit is sold at the first point of sale (excluding GST and before the deduction of any costs or charges); but
(b) if, in the opinion of Summerfruit New Zealand, that price is not consistent with prevailing market conditions in the grower's locality, Summerfruit New Zealand may determine that the selling price is the market value that, in the opinion of Summerfruit New Zealand, the purchaser would reasonably have been expected to pay for the summerfruit (excluding GST and before the deduction of any costs and charges)
summerfruit —
(a) means apricots, cherries, nectarines, peaches, and plums; and
(b) includes hybrids of those fruits
Summerfruit New Zealand means the body that is, on the commencement of this clause, known as Summerfruit New Zealand Incorporated.
(2) If the processing of any summerfruit extends over more than a day, the summerfruit must be treated for the purposes of this order as having been processed on the day on which the processing commenced.
(3) References in this order to summerfruit that is processed by a grower include references to summerfruit that is processed by another person for, or on behalf of, a grower.
4 Levy imposed
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(1) A levy is imposed on summerfruit grown by growers and—
(a) sold on the domestic market, including sales direct to the public; or
(b) processed before first being sold; or
(c) exported or sold for export.
(2) The levy is payable to Summerfruit New Zealand.
Responsibility for payment of levy
5 Growers primarily liable for paying levy
The grower of summerfruit is primarily liable for paying the levy.
6 Responsibility of collection agents for payment of levy
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(1) A collection agent—
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(a) must pay the levy (and any GST payable on the levy) on summerfruit—
(i) bought from the grower (except through another collection agent); or
(ii) sold, processed, or exported on the grower's behalf; and
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(b) may recover the levy (and any GST paid in respect of it) from the grower—
(i) by deducting the amount of the levy (and any GST paid in respect of it) from the payment made to the grower; or
(ii) by recovering the amount of the levy (and any GST paid in respect of it) as a debt due from the grower.
(2) A collection agent who pays the levy may, before paying it to Summerfruit New Zealand, deduct from the levy a collection fee of not more than 10% of the amount of the levy (exclusive of GST) plus the GST payable on the fee.
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Determination of levy by Summerfruit New Zealand
7 Levy payable at 2 different rates
The levy must be paid at 2 rates, being—
(a) a class 1 rate for apricots, nectarines, peaches, and plums, or hybrids of those fruit:
(b) a class 2 rate for cherries or hybrids of cherries.
8 Maximum rate of levy
The maximum rate of levy that may be fixed in respect of the 2 classes of levy is,—
(a) for the class 1 rate, 1.75% of the selling price, of the fob value, or of the notional process value, as the case may be:
(b) for the class 2 rate, 1.0% of the selling price, of the fob value, or of the notional process value, as the case may be.
9 Basis for calculation of levy
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(1) The levy payable by a grower in a levy year must be calculated on the basis of—
(a) the fob value, in the case of summerfruit that is exported unprocessed before the first point of sale:
(b) the notional process value, in the case of summerfruit that is processed before the first point of sale:
(c) the selling price, in all other cases.
(2) If the levy is calculated on the basis of the selling price, Summerfruit New Zealand may treat the following amounts as if they were part of the selling price:
(a) any other payments made to the grower by the purchaser in relation to the sale of the summerfruit:
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(b) the value (as determined by Summerfruit New Zealand) of any goods or services provided—
(i) to the grower by the purchaser in relation to the sale of the summerfruit; and
(ii) free of charge or below market value.
10 Returns must be supplied to Summerfruit New Zealand to determine amount of levy
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(1) For the purpose of determining the amount of levy payable by a grower,—
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(a) every grower who sells, processes, or exports the grower's own summerfruit in any month must provide to Summerfruit New Zealand, with the amount of levy for the month, written notice of—
(i) the selling price and quantity of summerfruit sold by the grower in the month; and
(ii) the notional process value and quantity of summerfruit processed for sale by the grower in the month; and
(iii) the fob value and quantity of summerfruit exported by the grower in the month; and
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(b) every collection agent must provide to Summerfruit New Zealand, with the amount of levy for each month, written notice of—
(i) the price paid for, and quantity of, summerfruit bought from a grower by the collection agent in the month; and
(ii) the notional process value and quantity of summerfruit processed on behalf of a grower by the collection agent in the month; and
(iii) the fob value and quantity of summerfruit exported on behalf of a grower by the collection agent.
(2) Summerfruit New Zealand may request, in writing, from each grower and collection agent any other information required by Summerfruit New Zealand for the purpose of determining the amount of the levy payable by a grower.
(3) Every grower and collection agent must, as soon as reasonably practicable after receiving a written request from Summerfruit New Zealand, supply Summerfruit New Zealand with written returns of the information requested.
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11 Certain growers exempt from paying levy
Growers who sell summerfruit to Heinz-Wattie's on contract for processing are exempt from paying the levy if—
(a) Heinz-Wattie's imposes a research and development levy on persons selling summerfruit to it on contract for processing; and
(b) the rate of the research and development levy is equal to or greater than the relevant rate of levy set under this order; and
(c) Heinz-Wattie's makes available to Summerfruit New Zealand the research information arising from its use of the research and development levy.
12 Exemption suspended in certain circumstances
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(1) Subclause (2) applies if Summerfruit New Zealand is satisfied that—
(a) Heinz-Wattie's has ceased to impose a research and development levy on persons selling summerfruit to it on contract for processing; or
(b) the rate of the research and development levy is less than the relevant rate of levy set under this order; or
(c) Heinz-Wattie's has ceased to make available to Summerfruit New Zealand the research information arising from its use of the research and development levy.
(2) Summerfruit New Zealand may, after giving Heinz-Wattie's a reasonable opportunity to be heard on the matter, suspend the exemption referred to in clause 11.
(3) If the exemption is suspended,—
(a) Summerfruit New Zealand must give written notice of the suspension and the date on which, in accordance with subclause (4), it takes effect; and
(b) clause 11 ceases to apply on and from the date specified in the notice.
(4) A suspension of the exemption takes effect on the first day of the month specified by Summerfruit New Zealand for the purpose (which must be a month that starts at least 7 days after the date of publication of the notice in the Gazette under subclause (7)(d)).
(5) Summerfruit New Zealand may revive the exemption with effect on and from the first day of any month if Summerfruit New Zealand is satisfied that—
(a) Heinz-Wattie's has imposed a research and development levy on persons selling summerfruit to it on contract for processing; and
(b) the rate of the research and development levy is equal to or greater than the relevant rate of levy set under this order; and
(c) Heinz-Wattie's has made or will make available to Summerfruit New Zealand the research information arising from its use of the research and development levy.
(6) If the exemption is revived,—
(a) Summerfruit New Zealand must give written notice of its revival and the date on which it takes effect; and
(b) clause 11 applies on and from the date specified in the notice.
(7) Written notice required under subclause (3) or subclause (6) must be given—
(a) to Heinz-Wattie's; and
(b) to the extent practicable (whether by newsletter or other means), to growers who Summerfruit New Zealand considers will be affected by the suspension; and
(c) in The Orchardist or SummerTECH ; and
13 Summerfruit New Zealand must fix actual rates of levy
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(1) Summerfruit New Zealand must fix the actual rates of the levy for the levy year ending on 31 August 2003 in accordance with its rules.
(2) For each subsequent levy year, Summerfruit New Zealand may fix the actual rates of the levy at a general meeting of Summerfruit New Zealand.
(3) If Summerfruit New Zealand does not fix the actual rates of the levy under subclause (2) before the beginning of a levy year, the levy for that year is payable at the rates last fixed under this clause.
14 Notification of rates of levy
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(1) As soon as practicable after fixing the rates of levy for a levy year, Summerfruit New Zealand must notify the rates of the levy and the year to which they apply—
(a) in the Gazette ; and
(b) in The Orchardist or SummerTECH ; and
(c) by direct mail to all summerfruit growers and collection agents known to Summerfruit New Zealand.
(2) If The Orchardist and SummerTECH cease to be published, the rates of the levy must be notified in—
(a) any publication that replaces either of those publications; or
(b) if no publication replaces either of them, a publication specified for the purposes of this order by the Minister of Agriculture by notice in the Gazette.
Time for payment of levy to Summerfruit New Zealand
15 When levy payable
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(1) The due date for payment of the levy to Summerfruit New Zealand is—
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(a) the date of sale in the case of summerfruit sold—
(i) by the grower direct to the public or to a collection agent; or
(ii) by a collection agent on behalf of the grower; or
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(b) the date of processing in the case of summerfruit processed—
(i) without having been sold by the grower; or
(ii) by a collection agent on behalf of the grower; or
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(c) the date of export in the case of summerfruit exported—
(i) by the grower; or
(ii) by a collection agent on behalf of the grower.
(2) The latest date for payment of the levy is the 20th day of the month following the due date for payment.
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16 Additional levy payable if levy not paid in time
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 Summerfruit New Zealand in addition to the amount otherwise payable:
(a) 5% of the amount of the unpaid levy:
(b) 2% of the amount of the unpaid levy (excluding additional levies owing under this clause) for each month that the amount is outstanding.
Expenditure of levy money by Summerfruit New Zealand
17 Levy money must be spent by Summerfruit New Zealand
Summerfruit New Zealand must spend or, pending its expenditure, invest all levy money paid to Summerfruit New Zealand.
18 Purposes for which levy money may be spent
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(1) Summerfruit New Zealand must not spend levy money on commercial or trading activities.
(2) Summerfruit New Zealand may spend levy money for any or all of the following purposes relating to summerfruit or growers:
(a) research, including market research:
(b) product development:
(c) market development:
(d) protection or improvement of plant health:
(e) development and implementation of quality assurance programmes:
(f) education, information, or training:
(g) generic educational promotions:
(h) day-to-day administration of Summerfruit New Zealand.
(3) At each annual general meeting and at each special general meeting called for the purpose, Summerfruit New Zealand must consult growers on how it proposes to spend its levy money.
Recordkeeping requirements and confidentiality of information provided to Summerfruit New Zealand
19 Records
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(1) Every grower must, in each levy year, keep records of—
(a) the selling price and quantity of summerfruit sold by the grower direct to the public; and
(b) the notional process value and quantity of summerfruit processed for sale by the grower; and
(c) the fob value and quantity of summerfruit exported by the grower; and
(d) the name and contact details of any collection agent to whom the grower has sold summerfruit, or who has sold, processed, or exported summerfruit on behalf of the grower; and
(e) the selling price and quantity of summerfruit sold to a collection agent; and
(f) the selling price and quantity of summerfruit sold by a collection agent on behalf of the grower; and
(g) the notional process value and quantity of summerfruit processed by a collection agent on behalf of the grower; and
(h) the fob value and quantity of summerfruit exported by a collection agent on behalf of the grower; and
(i) the amount of levy money paid by the grower to Summerfruit New Zealand.
(2) Every collection agent must, in each levy year, keep records of—
(a) the name and contact details of every grower from whom summerfruit was purchased, or on whose behalf summerfruit was sold, processed, or exported; and
(b) the amount of money paid to each grower for summerfruit, the date of payment, and the levy deducted; and
(c) the amount of levy paid by the collection agent to Summerfruit New Zealand and the date of payment; and
(d) the amount of any collection fee.
(3) Summerfruit New Zealand must, in each levy year, keep records of—
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(a) each amount of levy money paid to it and, in relation to each amount,—
(i) the date on which the levy was received; and
(ii) the name of the person who submitted the levy; and
(b) how levy money paid to it has been invested or spent.
(4) Every grower and collection agent must ensure that the records referred to in subclauses (1) and (2) are retained for at least 2 years after the date of payment of the levy to Summerfruit New Zealand.
(5) Summerfruit New Zealand must retain the records prepared under subclause (3) for 2 years after the levy year to which the records relate.
20 Confidentiality of information
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(1) No officer or employee of Summerfruit New Zealand, or any other person who gathers information, may disclose (except to an officer or employee of Summerfruit New Zealand) any information obtained under this order unless—
(a) the person giving the information and every identifiable person to whom it relates consents to its disclosure; or
(b) its disclosure is required by law.
(2) Subclause (1) does not affect or prevent the disclosure of information, records, or statements for the purposes of—
(a) assisting with the collection of the levy; or
(b) section 17(1) or section 25 of the Commodity Levies Act 1990; or
(c) evidence given in any legal proceedings taken under, or in relation to, this order or the Commodity Levies Act 1990.
(3) Subclause (1) does not prevent Summerfruit New Zealand from disclosing or using any information for statistical or research purposes if the information is in a form that does not identify any individual.
Miscellaneous
21 Conscientious objectors
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(1) Any grower or collection agent who objects on conscientious or religious grounds to paying the levy in the manner provided for by this order 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 Summerfruit New Zealand.
22 Remuneration of persons conducting compliance audits
A person appointed as auditor under section 15 of the Commodity Levies Act 1990 must be remunerated by Summerfruit New Zealand at a rate determined by the Minister of Agriculture after consultation with Summerfruit New Zealand.
Mediation in case of dispute
23 Appointment of mediators
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(1) This clause applies to any dispute about—
(a) whether or not 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 Institute of Chartered Accountants of New Zealand to appoint a person to resolve the dispute by mediation, and, in that case, 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 if—
(a) the parties to the dispute resolve it by agreement; or
(b) the mediator resolves the dispute under clause 30.
24 Remuneration of mediator
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(1) A mediator must be paid remuneration (by way of fees and allowances) as agreed to by the parties to the dispute.
(2) If the parties to a dispute cannot agree on a mediator's remuneration, the President of the Institute of Chartered Accountants of New Zealand (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.
25 Time and place of conference
Every conference organised by a mediator must be held on a day and at a time and place fixed by the mediator and notified in writing to the parties.
26 Conference held in private
Except as provided in clause 27, only the parties to a dispute and the mediator may attend a conference organised by the mediator.
27 Representatives
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 to a dispute organised by the mediator.
28 Right to be heard
Every party to a dispute, and every representative of a party allowed by the mediator to attend a conference of the parties to a dispute organised by a mediator, may be heard at the conference.
29 Evidence
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(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, seek and receive any evidence, and 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.
30 Mediator may resolve dispute in certain cases
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(1) The 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) If subclause (1) applies, the mediator must give each of the parties written notice of the mediator's decision and the reasons for the decision.
(3) The parties must comply with the decision of the mediator.
31 Appeal to District Court
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(1) A party to a dispute who is dissatisfied with the decision made by a mediator under clause 30 may appeal to a District Court against the decision.
(2) 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 a District Court Judge allows.
(3) The Registrar of the Court must—
(a) fix the time and place for the hearing of the appeal and notify the appellant and the other parties to the dispute; and
(b) serve a copy of the notice of appeal on every other party to the dispute.
(4) Every 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.
32 Revocation and saving
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(1) The Commodity Levies (Summerfruit) Order 1996 (SR 1996/183) is revoked.
(2) Despite subclause (1), amounts of levy that become payable to Summerfruit New Zealand under the Commodity Levies (Summerfruit) Order 1996 before the commencement of this clause continue to be due and payable as if that order had not been revoked.
Marie Shroff,
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 the 28th day after its notification in the Gazette, except for clauses 3(1) and 13(1), which come into force on the day after that notification.
The order imposes on summerfruit a levy that must be paid to Summerfruit New Zealand—
•directly by the grower if the grower sells summerfruit directly to the public, or processes or exports summerfruit on his or her own account; or
•by a collection agent who buys summerfruit from, or sells, processes, or exports summerfruit on behalf of, a grower.
Payments of the levy must be made by the 20th day of the month following the sale, processing, or export of the summerfruit.
In this order, a grower means a person who is in the business of producing summerfruit for commercial purposes. A collection agent is a person whose business includes buying summerfruit from a grower for resale, processing, or export, or selling, processing, or exporting summerfruit on behalf of a grower.
Growers who sell summerfruit to Heinz-Wattie's on contract for processing are exempt from paying the levy if Heinz-Wattie's imposes a research and development levy that is at least equal to the levy imposed under this order. The company must make available to Summerfruit New Zealand research information arising from its use of its levy.
This order revokes and replaces the Commodity Levies (Summerfruit) Order 1996.
Section 13(1) of the Commodity Levies Act 1990 provides that a commodity levy order, unless earlier revoked, expires 6 years after it is made.
Issued under the authority of the Acts and Regulations Publication Act 1989.
Date of notification in Gazette: 29 August 2002.
Contents
1General
2About this eprint
3List of amendments incorporated in this eprint (most recent first)
Notes
1 General
This is an eprint of the Commodity Levies (Summerfruit) Order 2002. It incorporates all the amendments to the order as at 2 October 2008. The list of amendments at the end of these notes specifies all the amendments incorporated into this eprint since 3 September 2007. Relevant provisions of any amending enactments that contain transitional, savings, or application provisions are also included, after the Principal enactment, in chronological order.
2 About this eprint
This eprint has not been officialised. For more information about officialisation, please see
“Making online legislation official”
under“Status of legislation on this site”
in the About section of this website.
3 List of amendments incorporated in this eprint (most recent first)
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Commodity Levies (Summerfruit) Order 2008 (SR 2008/344): clause 34(1)
Commodity Levies Act 1990 (1990 No 127): section 13(1)