This order is the Wine (Grape Wine Levy) Order 2005.

This order comes into force on 1 April 2005.

(1) In this order, unless the context otherwise requires,—

(2) Unless the context otherwise requires, terms and expressions that are used but not defined in this order but that are defined in the Act have the same meaning as in the Act.

(1) A levy is imposed on—

• (a) grape wine; and

• (b) the grape wine component of grape wine products.

(2) Despite subclause (1), no levy is imposed in relation to sales of grape wine or grape wine products between wineries in New Zealand.

(1) The winery is primarily responsible for paying the levy.

(2) No winery is exempt from paying the levy.

The levy is to be calculated on the basis of the volume, in litres, of grape wine (including the grape wine component of grape wine products) sold by the winery in each quarter of a levy year.

The levy is to be paid at a single rate.

(1) The maximum rate of the levy is 3.5 cents per litre of grape wine (including the grape wine component of grape wine products) sold.

(2) Subclause (1) is subject to the minimum levy payment specified in clause 10.

(1) Subject to subclause (2), the Institute must fix the actual rate of the levy—

• (a) on or before 30 April 2005, for the levy year beginning on the commencement of this order; or

• (b) before the beginning of the levy year, for any levy year beginning on or after 1 July 2006.

(2) If the Institute does not fix the actual rate of levy for a levy year beginning on or after 1 July 2006, the rate last fixed under subclause (1)(a) or (b), as appropriate, applies to the new levy year.

(3) The Institute may use any means by which it can lawfully make decisions to fix the actual rate of the levy.

The minimum levy payment is $400 per levy year, payable in accordance with clause 15.

As soon as practicable after the rate of levy has been fixed for a levy year, the Institute must notify the rate—

• (a) by notice in the New Zealand Wine Grower; and

• (b) by notice in the Gazette; and

• (c) by notice in 1 or more major metropolitan daily newspapers; and

• (d) directly to all wineries whose postal addresses are known to the Institute.

The amounts referred to in this order are exclusive of any goods and services tax that may be payable.

(1) The industry organisation to which the levy is to be paid is the Institute.

(2) Every levy payment must be accompanied by a return stating the volume of grape wine (including the grape wine component of grape wine products) sold during the period to which the payment relates.

(3) Subclause (1) is subject to clause 26.

(1) Subject to clause 15, the levy payable under this order—

• (a) must be paid quarterly, based on the volume of grape wine (including the grape wine component of grape wine products) sold during the relevant quarter; and

• (b) (except in the case of sales referred to in subclause (2)) becomes due for payment on the day on which the grape wine or grape wine product is sold.

(2) The levy for sales during the period beginning on the commencement of this order and ending on the date on which the actual rate of levy is set in accordance with clause 9(1)(a)—

• (a) becomes due for payment on the date on which the actual rate of levy is set; and

• (b) is payable at the rate set in accordance with clause 9(1)(a).

(3) The latest dates for the payment of the levy are—

• (a) 31 October, for sales during the period beginning on 1 July and ending on 30 September:

• (b) 31 January, for sales during the period beginning on 1 October and ending on 31 December:

• (c) 30 April, for sales during the period beginning on 1 January and ending on 31 March:

• (d) 31 July, for sales during the period beginning on 1 April and ending on 30 June.

(4) The latest date for the payment of the levy for sales during the period beginning on the commencement of this order and ending on 30 June 2005 is 31 July 2005.

(5) Subclause (4) is for the avoidance of doubt.

If a winery believes that its total annual levy liability will not exceed the minimum amount specified in clause 10, it may—

• (a) make a single payment of $400 on or before 31 October of the relevant levy year; or

• (b) make one payment of $100 on or before each of the latest dates specified in clause 14(3).

(1) Subclause (2) applies if—

• (a) a winery makes the minimum levy payment specified in clause 10; and

• (b) the actual levy liability of the winery for the relevant levy year exceeds the amount of that payment.

(2) At the end of each levy year, the winery must—

• (a) calculate the difference between the minimum levy payment and the actual levy due for the relevant levy year; and

• (b) pay the amount of that difference to the Institute.

(3) The latest date for the payment referred to in subclause (2)(b) is 31 July of the year in which the relevant levy year ends.

If any levy money (or any goods and services tax payable on that money) has not been paid on or before the latest date for payment specified in clause 14(3) or (4) or clause 16(3), the Institute may add a penalty of 10% to the amount owing (including any previous penalties) at the end of each month during which the debt remains outstanding.

(1) If the Institute is satisfied that an amount paid to it as a levy has been overpaid, or paid in error, the Institute must refund that amount.

(2) However, the Institute is not liable to make a refund under subclause (1) unless it is satisfied that the person claiming the refund—

• (a) is entitled to the refund; and

• (b) has not already recovered the amount paid.

(3) To enable the Institute to satisfy itself that a refund under subclause (1) is due, the Institute may—

• (a) require the person claiming the refund to provide levy returns or other information justifying the refund; and

• (b) check or determine the amount of the refund; and

• (c) verify the returns and information provided under subclause (3)(a) in any way the Institute thinks fit.

(1) The Institute must spend or, pending expenditure, invest all levy money paid to it.

(2) The Institute may pay any amount of levy money to any of its regional associations, which must spend, or pending expenditure, invest all levy money paid to them.

(3) Expenditure must be for 1 or more of the general purposes described in clause 20.

(1) The general purposes for which the Institute may spend the levy money must relate to the interests of wineries and include (but are not limited to) the following purposes:

• (a) collection, analysis, and dissemination of information:

• (b) market research and development:

• (c) promotion of grape wine and grape wine products:

• (d) research and development of viticulture, oenology, and other relevant disciplines:

• (e) education and training:

• (f) funding activities undertaken on behalf of the grape wine industry by government and other agencies:

• (g) developing standards, codes of practice, sustainability programmes, and quality assurance programmes:

• (h) assisting with the implementation of legislation:

• (i) day-to-day administration of the Institute, including its regional associations:

• (j) promoting the interests of makers of grape wine and grape wine products.

(2) Expenditure for any general purpose may be for projects on a national or regional level.

(3) The Institute must not spend the levy money on commercial or trading activities.

(1) At least every 12 months, the Institute must consult wineries on how it proposes to spend levy money and provide the wineries with details of the previous 12 months' expenditure.

(2) For the purposes of subclause (1), the Institute must—

• (a) communicate with wineries by means of—

  • (i) regular newsletters to all wineries whose postal addresses are known to the Institute; and

  • (ii) advertisements in the New Zealand Wine Grower; and

  • (iii) any other manner the Institute thinks fit; and

• (b) before the Institute's annual general meeting in each year, hold advertised meetings in grape wine producing regions for the purpose of consulting wineries on how levy money is to be spent.

(3) On completion of the consultation referred to in subclause (1), the Institute must provide wineries with copies of the Institute's approved expenditure and annual plans.

Every winery must, as soon as is reasonably practicable after receiving the Institute's written request to do so, provide the Institute with all information required to enable the Institute to calculate the amount of levy payable by the winery under clause 6.

(1) Every winery must keep records, for each levy year, of—

• (a) individual sales and the total quantity of grape wine (including the grape wine component of grape wine products) sold in each quarter; and

• (b) the amount of levy money paid in relation to those sales; and

• (c) the date the levy money was paid to the Institute.

(2) The records referred to in subclause (1) must be retained by the winery for at least 2 years after the end of the levy year to which the records relate.

(1) The Institute must keep records, for each levy year, of all levy money paid to it and,—

• (a) in relation to each levy payment,—

  • (i) the amount of the payment; and

  • (ii) the date on which it was received by the Institute; and

  • (iii) the name and contact details of the person who paid it; and

• (b) in relation to levy money that was invested, how, when, and where it was invested; and

• (c) in relation to levy money that was spent, how and when it was spent.

(2) The records referred to in this clause must be retained by the Institute for at least 2 years after the end of the levy year in which the levy money was paid, invested, or spent.

(1) No officer or employee of the Institute may disclose (except to another officer or employee of the Institute) any information obtained—

• (a) under or as a result of this order; or

• (b) in relation to this order, under the Act or the Commodity Levies Act 1990.

(2) Nothing in subclause (1) affects or prevents—

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

• (b) the production of any statement under section 25 of the Commodity Levies Act 1990; or

• (c) the giving of evidence in any legal proceedings taken—

  • (i) under or in relation to this order; or

  • (ii) in relation to this order, under or in relation to the Act or the Commodity Levies Act 1990.

(3) Nothing in subclause (1) prevents the Institute from disclosing or using the information obtained—

• (a) to enable the Institute's returning officer, or other person engaged in the election of members or officeholders of the Institute, to—

  • (i) determine voting entitlements; or

  • (ii) count the votes of persons responsible for payment of the levy; or

• (b) for statistical or research purposes (if the information does not relate to an identifiable person); or

• (c) if every identifiable person to whom the information relates consents to the disclosure or use.

(1) Any winery that objects on conscientious or religious grounds to the payment to the Institute of an amount of levy money may pay the amount concerned to the Director-General of the Ministry of Agriculture and Forestry (or the chief executive of any other department of State that is for the time being responsible for the administration of this order).

(2) The Director-General must pay any levies received under subclause (1) to the Institute.

A person appointed as an auditor under section 15 of the Commodity Levies Act 1990 must be remunerated by the Institute at a rate determined by the Minister after consultation with the Institute.

(1) This clause applies to any dispute concerning—

• (a) whether a person is required to pay a levy; or

• (b) the amount of levy payable.

(2) Any 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 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 when—

• (a) the parties resolve the dispute by agreement; or

• (b) the mediator resolves the dispute under clause 35.

(1) A mediator must be paid the remuneration (by way of fees and allowances) agreed to by the parties to the dispute.

(2) If the parties 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 to do so) 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 is to 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.

A mediator may organise a conference to facilitate the resolution of the dispute between the parties.

Every conference organised by a mediator of the parties to a dispute is to be held on a day, and at a time and place, fixed by the mediator and notified in writing to the parties.

(1) Subject to subclause (2), only the parties to a dispute and the mediator may attend a conference organised by the mediator.

(2) Despite subclause (1), a mediator may, if satisfied that in all the circumstances it is appropriate to do so, allow a representative of any party to a dispute to attend a conference.

Every party to a dispute, and every representative of a party allowed by the mediator to attend a conference of the parties organised by a mediator, may be heard at the conference.

(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 his or her evidence by statutory declaration.

(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) 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.

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

(1) A party to a dispute who is dissatisfied with the decision made by a mediator under clause 35 may appeal to a District Court against the decision.

(2) An appeal under this clause must be brought by the filing of a notice of appeal within 28 days after the making of the decision to which the appeal relates, or within any longer time that a District Court Judge allows.

(3) The Registrar of the court must—

• (a) serve a copy of the notice of appeal on every other party to the dispute; and

• (b) fix the time and place for the hearing of the appeal; and

• (c) notify the appellant and all other parties to the dispute of the time and place for the hearing of the appeal.

(4) Every party to the dispute may appear and be heard at the hearing of the appeal.

(5) On hearing the appeal, the 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.