This order is the Commodity Levies (Passionfruit) Order 2008.

This order comes into force on the 28th day after the date of its notification in the Gazette.

In this order, unless the context otherwise requires,—

(1) A levy is imposed on all passionfruit grown in New Zealand for a commercial purpose.

(2) The levy is payable to NZPGA.

A grower of passionfruit is primarily responsible for paying the levy on it.

(1) A collection agent must pay the levy (and any GST payable on the levy) on passionfruit that the collection agent—

• (a) buys from a grower (except through another collection agent); or

• (b) sells or exports on a grower's behalf.

(2) A collection agent may recover the levy (and any GST paid in respect of it) from the grower by—

• (a) deducting the amount of the levy (and any GST payable on it) from the payment made to the grower; or

• (b) recovering the amount of the levy (and any GST paid in respect of it) as a debt due from the grower.

(3) A collection agent who pays the levy may deduct from the payment—

• (a) a collection fee of not more than 10% of the amount of levy (exclusive of GST); and

• (b) any GST payable on the fee.

(1) The due date for payment of any levy is the day on which the passionfruit is sold, processed, or exported, as the case may be.

(2) An amount of levy that becomes payable during any month must be paid to NZPGA no later than the 20th day of the next month.

(1) A grower or, as the case may be, a collection agent must pay NZPGA an increased levy if the grower or collection agent fails to pay the levy by the latest date for its payment under clause 7.

(2) The amount of the increased levy is—

• (a) the amount of levy money not paid by the latest date for payment; and

• (b) an additional 5% of that amount; and

• (c) an additional 2% of the amount referred to in paragraph (a) for each further month that the amount remains unpaid.

The levy must be paid at a single rate.

(1) The levy must be calculated,—

• (a) for passionfruit sold by, or on behalf of, a grower, by reference to the price of the passionfruit at the first point of sale (excluding GST):

• (b) for passionfruit processed before the first point of sale, by reference to the value of the unprocessed fruit (excluding GST) that, in the opinion of NZPGA, a grower would reasonably expect to pay had the grower wanted to buy it for processing:

• (c) for passionfruit exported before the first point of sale, by reference to the FOB value of the passionfruit (excluding GST).

(2) If the levy is calculated by reference to the price of the passionfruit at the first point of sale, NZPGA may treat the following amounts as if they were part of the price:

• (a) any other payments made to the grower by the buyer in relation to the sale of the passionfruit:

• (b) the value (as determined by NZPGA) of any goods or services provided—

  • (i) to the grower by the buyer in relation the sale of the passionfruit; and

  • (ii) free of charge or below market value.

(3) In this clause, price means—

• (a) the price at which the passionfruit is sold at the first point of sale (excluding GST and before costs and charges are deducted); or

• (b) if NZPGA considers that the price referred to in paragraph (a) is not consistent with prevailing market conditions in the grower's locality, the market value that, in the opinion of NZPGA, the buyer would reasonably have expected to pay for the passionfruit.

The maximum rate of levy is 4% of the price or value that is the basis for the calculation of the levy under clause 10.

(1) NZPGA must fix the rate of levy for the first levy year at its annual meeting in 2008, which meeting may be held before the commencement of this order.

(2) NZPGA must fix the actual rate of levy for each later levy year—

• (a) at an annual general meeting; or

• (b) at a special general meeting called for that purpose.

If NZPGA does not fix the actual rate of levy before the beginning of a levy year, the levy for that year is payable at the rate last fixed under clause 12.

(1) As soon as practicable after fixing the rate of levy for a levy year, NZPGA must notify it—

• (a) in The Orchardist; and

• (b) in the Gazette; and

• (c) by direct mail to all collection agents known to NZPGA.

(2) If The Orchardist ceases to be published, the rate of levy for a levy year must be notified in—

• (a) any publication that replaces it; or

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

NZPGA must—

• (a) spend all levy money paid to it:

• (b) invest the levy money until it is spent.

(1) NZPGA must, at least once every 12 months, consult growers as to how the levy money is to be spent.

(2) NZPGA must use the following process to consult growers:

• (a) it must notify growers, by way of a newsletter and The Orchardist or any other similar publication that is likely to be read by growers, that they are invited to attend a general meeting of NZPGA held to approve how the levy money is spent:

• (b) it must circulate to all growers before the meeting a draft budget and a draft plan of how the levy money is proposed to be spent.

(3) The draft budget and the draft plan must be approved at the general meeting by the growers who are members of NZPGA.

(4) Growers who are not members of NZPGA may attend the general meeting, but only have speaking rights on how the levy money is proposed to be spent.

(1) NZPGA may spend the levy money for the following purposes relating to passionfruit or growers:

• (a) product development and promotion:

• (b) scientific research:

• (c) pest and disease control:

• (d) grower education:

• (e) research into grower-related issues:

• (f) quality management:

• (g) communication between growers and industry-related bodies:

• (h) day-to-day administration of NZPGA.

(2) NZPGA must not spend any levy money on commercial or trading activities.

(1) A payment of levy by a grower to NZPGA must be accompanied by a statement of the value of the passionfruit to which the payment relates.

(2) A payment of levy by a collection agent to NZPGA must be accompanied by a statement of the amount of levy the agent has collected from growers.

(3) Every grower and collection agent must supply to NZPGA, in writing and as soon as reasonably practicable, any information required by NZPGA for the purpose of calculating the levy.

(1) A grower must, for every levy year, keep records of—

• (a) the quantity of passionfruit sold, processed, or exported by the grower; and

• (b) the name of the collection agent (if any) to whom the grower has sold passionfruit; and

• (c) the price paid, or value placed, on the passionfruit sold, processed, or exported; and

• (d) the amount of levy paid to NZPGA for each quantity of passionfruit.

(2) A collection agent must, for every levy year, keep records of—

• (a) the name and address of each grower from whom passionfruit was bought or on whose behalf passionfruit was sold or exported; and

• (b) the quantity of passionfruit bought from each grower, or sold or exported on the grower's behalf; and

• (c) the price paid, or value placed, on each quantity of passionfruit bought from each grower, or sold or exported on the grower's behalf; and

• (d) the amount of levy collected and paid to NZPGA for each quantity of passionfruit.

(3) NZPGA must, for every levy year, keep records of—

• (a) each amount of levy money paid to it; and

• (b) the name and address of each grower or collection agent who paid each amount of levy and the date the amount was received; and

• (c) how levy money was spent or invested.

(4) The records required by this clause must be retained for at least 7 years after the end of the levy year to which they relate.

(1) An officer, employee of NZPGA, or any other person who gathers information, must not disclose (except to some other officer or employee of NZPGA) any information obtained—

• (a) under or because of this order; or

• (b) under the Act in relation to this order.

(2) Subclause (1) does not affect or prevent—

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

• (b) the production of any statement under section 25 of the Act; 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.

(3) Subclause (1) does not prevent NZPGA from—

• (a) disclosing or using any information (not being information relating to an identifiable person) for statistical or research purposes; or

• (b) disclosing or using any information for the purposes of invoicing and collecting the levy; or

• (c) disclosing or using any information with the consent of every identifiable person to whom it relates.

(1) A grower or collection agent who objects on conscientious or religious grounds to paying an amount of levy in the manner provided for in this order may pay the amount to the chief executive of the Ministry of Agriculture and Forestry.

(2) The chief executive of the Ministry of Agriculture and Forestry must pay the amount to NZPGA.

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

(1) This clause applies to any dispute about—

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

• (b) the amount of levy payable.

(2) Any 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.

(3) If asked under subclause (2), 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 30.

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

• (b) specify how much of that remuneration (if any) each party must pay.

(3) A party must pay to the mediator any amount specified as payable by that party under subclause (2)(b).

(1) A mediator may organise and preside at 1 or more conferences between the parties to a dispute to try to resolve the dispute.

(2) Every conference must be held on a day, and at a time and place, fixed by the mediator and notified in writing to the parties.

Only the mediator and the parties to a dispute may attend a conference, unless clause 27 applies.

A mediator may allow a representative of any party to a dispute to attend a conference if the mediator is satisfied that it is appropriate in the circumstances.

The following persons may be heard at a conference:

• (a) every party to the dispute; and

• (b) every representative of a party allowed by the mediator to attend 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 to verify the evidence by statutory declaration.

(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 of the parties written notice of the mediator's decision and the reasons for the decision.

(3) The parties must comply with the mediator's decision.

Each party must pay the party's 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 30 may appeal to a 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 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

• (b) notify the time and place to 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) Every party to the dispute may appear and be heard at the hearing of the appeal.

(5) The 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.

(1) The Commodity Levies (Passionfruit) Order 2002 (SR 2002/366) is revoked.

(2) Despite subclause (1), amounts of levy that become payable before the commencement of this order to NZPGA under the Commodity Levies (Passionfruit) Order 2002 continue to be due and payable as if that order had not been revoked.