Dairy Industry Restructuring Act 2001

1: Title
This Act is the Dairy Industry Restructuring Act 2001.
1: Preliminary provisions
2: Commencement
1: The following provisions come into force on the day after the date on which this Act receives the Royal assent:
a: Part 1 (preliminary provisions):
b: subpart 1 Commerce Act 1986 section 8
c: subpart 2
d: sections 157 to 159
e: section 164
f: section 166
2: Section 160
3: The rest of this Act comes into force on the amalgamation date.
4: New co-op must publish the amalgamation date in the Gazette Section 2(3) 16 October 2001 appointed as amalgamation date Gazette
3: Expiry
Section 3 repealed 20 February 2018 section 5 Dairy Industry Restructuring Amendment Act 2018
4: Purpose
The purpose of this Act is to—
a:
b: provide for the transition of the New Zealand Dairy Board to a wholly-owned subsidiary of new co-op and its conversion into a company 12 months after the commencement of this Part; and
c:
d: remove restrictions on the export of dairy products except for exports to designated markets; and
e: provide for the regulation of matters relating to the core database, including its management; and
f: promote the efficient operation of dairy markets in New Zealand by regulating the activities of new co-op to ensure New Zealand markets for dairy goods and services are contestable; and
g: provide for transitional arrangements following the removal of restrictions on the export of dairy products; and
h: make provision in relation to certain taxation consequences relating to the amalgamation; and
i: require co-operative dairy companies to enable supplying shareholders to transfer their shares to sharemilkers by agreement. Section 4(a) repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Section 4(c) repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Section 4(e) replaced 1 June 2021 section 4 Dairy Industry Restructuring Amendment Act 2020
5: Interpretation
1: In this Act, unless the context otherwise requires,— Access Panel section 63 allocation period section 26 amalgamation date application period section 75 associated person base milk price Board Dairy Board Act 1961 Board’s constitution capital notes chief executive Commission section 8 commodity
a: traded in significant quantities in globally contested markets; and
b: characterised by uniform technical specifications competent authority Animal Products Act 1999 constitution
a: in the case of a company within the meaning of section 2(1)
b: in the case of any other entity, the documents or instruments that form the constitution of the entity control sections 5 to 7 conversion date co-operative share
a: from the new co-op amalgamation; or
b: in relation to the supply of milk to new co-op by new entrants or shareholding farmers co-operative share standard core database
a: information provided to the manager of the core database under—
i: the Herd Testing Regulations 1958
ii: any regulations made under section 62
b: information provided to a previous manager under any of the things referred to in paragraph (a) while it was the manager of the core database; and
c: information provided to a previous manager or an intended manager under regulations made under section 65C dairy farmer subpart 5
a: means a person who produces milk, or intends to produce milk, in New Zealand from dairy cows as a business; but
b: does not include a sharemilker default price
a: the June price, if that price is within the price range, in—
i: the first season for the supply of milk to which an application to supply as a shareholding farmer relates; or
ii: the season after a notice of withdrawal is given; or
b: the published price on the date that an application is made or a notice of withdrawal is given plus 7.5% if the June price referred to in paragraph (a) exceeds the highest price in the price range; or
c: the published price on the date that an application is made or a notice of withdrawal is given less 7.5% if the June price referred to in paragraph (a) is less than the lowest price in the price range described as organic section 9 designated market
a: for the initial and interim licences, a market listed in Schedule 5
b: for the licences that apply following the initial and interim licences, a market listed in Schedule 5A eligible participant
a: is eligible to hold an export licence; and
b: collects at least 0.1% of total milk solids collected from farmers in New Zealand based on the most representative data of total milk solids collected in New Zealand in the latest year that data is available prior to an allocation period entity
a: a company or other body corporate:
b: a corporation sole:
c: in the case of a trust that has—
i: only 1 trustee, the trustee acting in their capacity as trustee:
ii: more than 1 trustee, the trustees acting jointly in their capacity as trustees:
d: an unincorporated body (including a partnership) export export licence
a: the initial licences of the Board:
b: a licence allocated under section 25 26 29 farm gate milk price general export licence section 26(5) herd testing holder section 29B independent
a: a shareholding farmer:
b: a relative of a shareholding farmer:
c: an employee of new co-op:
d: an employee of a shareholding farmer:
e: a person who has a direct or indirect financial interest in a farm that supplies milk to new co-op:
f: a person who has a relevant interest in new co-op fund securities independent processor
a: means a processor of milk or milk solids or dairy products who is not an associated person of new co-op; and
b: includes New Zealand Dairy Foods Limited and any associated person of that company other than new co-op initial licence section 24 initial period section 24 insolvency
a: the appointment of a receiver in respect of all or substantially all of the property of the Board; or
b: the appointment of a liquidator or interim liquidator under Part 16
c: removal from the register of companies kept pursuant to section 360(1)﻿(a)
d: the appointment of a statutory manager under Part 3 intended manager section 65B interconnected body corporate section 2(7) interim licence
a: Canada, the licence for the period beginning on the commencement of the Dairy Industry Restructuring Amendment Act 2007 and ending on 31 December 2007 for a quantity of butter not exceeding 2 000 tonnes; and
b: the Dominican Republic, a licence for the period beginning on the commencement of the Dairy Industry Restructuring Amendment Act 2007 and ending on 31 December 2007 for a quantity of milk powder not exceeding 4 800 tonnes; and
c: the European Communities—
i: as described in section 25(2)﻿(a)
ii: as described in section 25(2)﻿(b)
iii: as described in section 25(2)﻿(c) interim period June price kilograms of milk solids LIC LIC board licensed market section 6(1) manager of the core database
a: DairyNZ Limited; or
b: an entity appointed by regulations made under section 65A
c: the Crown, if the management of the core database has reverted to the Crown under section 68 section 65A marae market maker in co-operative shares milk price manual section 150F milk solids Minister Ministry new co-op new co-op amalgamation Part 13 new co-op fund section 109D(1)﻿(b) new co-op fund securities section 109D(1)﻿(b)﻿(i) new entrant section 73 operator section 6 organic milk
a: means milk that is described as organic and restricted by an organic standard; or
b: if milk is not restricted by an organic standard, means raw milk—
i: produced by an operator complying voluntarily with a relevant organic standard (as referred to in section 12(c)
ii: certified as organic milk by a certifying entity or person prescribed by regulations made under section 115(1)﻿(fa) organic standard section 6 panel section 150D person eligible to hold an export licence Part 5 personal information section 7(1) previous manager section 65A price range section 73 section 97 publicly accessible publicly available
a: the document or information is available for inspection, free of charge, on an Internet site that is publicly accessible at all reasonable times (except to the extent that making the document or information available would infringe copyright in the material in question or is inconsistent with any enactment or rule of law); and
b: a copy of the document or information is available for inspection, free of charge, at all reasonable times at the head office of the person required to make it publicly available or, if that person is a Minister, at the head office of the relevant Ministry; and
c: copies of the document or information may be purchased by any person at a reasonable price published price section 77(1) quota year
a: the European Communities, the United States of America, the Dominican Republic, and the United Kingdom
b: Japan, a period of 12 months beginning on 1 April and ending on 31 March in the following year quoted section 6(1) raw milk
a: means untreated milk from a cow; and
b: includes untreated organic milk; and
c: includes any other milk of a kind that is not excluded by paragraph (d) and is prescribed by regulations made under section 115
d: does not include—
i: milk or a component of milk from a cow if the milk or component is produced under special conditions by, for example, the use of specialised herd selection, specialised farming practice, specialised feeding practice, or new technology; or
ii: colostrum relative
a: that person's spouse, civil union partner, or de facto partner:
b: a parent or step-parent of that person:
c: a child or stepchild of that person:
d: a brother or sister of that person, including a stepbrother or stepsister:
e: a grandchild of that person:
f: a grandparent of that person:
g: a parent, step-parent, brother, or sister, including a stepbrother or stepsister, of that person's spouse, civil union partner, or de facto partner relevant interest sections 235 to 238 restricted by an organic standard section 10 season shareholding farmer sharemilker section 2 specified subpart 5 provisions section 109A supply redemption rights surrender amount section 97 tariff quota total cost of milk
a: getting a sum by adding together all payments to which all the following apply:
i: the payment is made by new co-op or any body that is an interconnected body corporate of new co-op; and
ii: the payment is made to a shareholding farmer; and
iii: the payment is for the raw milk that the farmer supplies to new co-op or any body that is an interconnected body corporate of new co-op in a season; and
b: deducting from the sum—
i: the total organic milk premium for the season; and
ii: the total winter milk premium for the season total organic milk premium total winter milk premium trade section 241(3) transacting shareholder section 4 winter milk section 115 year
2: A person is an associated person
a: they are both bodies corporate and they consist substantially of the same members or shareholders or are under the control of the same persons; or
b: either of them has the power, directly or indirectly, to exercise, or control the exercise of, the rights to vote attached to 25% or more of the voting products (within the meaning of section 6(1)
c: one is a director of the other; or
d: either of them is able, directly or indirectly, to exert a substantial degree of influence over the activities of the other. Section 5(1) Access Panel inserted 1 June 2021 section 5(1) Dairy Industry Restructuring Amendment Act 2020 Section 5(1) allocation period inserted 15 December 2007 section 4(1) Dairy Industry Restructuring Amendment Act 2007 Section 5(1) approved restructuring day repealed 1 June 2021 section 5(4) Dairy Industry Restructuring Amendment Act 2020 Section 5(1) base milk price inserted 27 July 2012 section 4(1) Dairy Industry Restructuring Amendment Act 2012 Section 5(1) chief executive substituted 15 December 2007 section 4(2) Dairy Industry Restructuring Amendment Act 2007 Section 5(1) commodity inserted 27 July 2012 section 4(1) Dairy Industry Restructuring Amendment Act 2012 Section 5(1) competent authority inserted 15 December 2007 section 4(1) Dairy Industry Restructuring Amendment Act 2007 Section 5(1) constitution inserted 1 June 2021 section 5(1) Dairy Industry Restructuring Amendment Act 2020 Section 5(1) conversion date replaced 27 July 2012 section 4(2) Dairy Industry Restructuring Amendment Act 2012 Section 5(1) core database replaced 1 June 2021 section 5(2) Dairy Industry Restructuring Amendment Act 2020 Section 5(1) described as organic inserted 6 April 2023 section 161(2) Organic Products and Production Act 2023 Section 5(1) designated market substituted 15 December 2007 section 4(3) Dairy Industry Restructuring Amendment Act 2007 Section 5(1) eligible participant inserted 15 December 2007 section 4(1) Dairy Industry Restructuring Amendment Act 2007 Section 5(1) entity inserted 1 June 2021 section 5(1) Dairy Industry Restructuring Amendment Act 2020 Section 5(1) exiting company repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Section 5(1) export licence substituted 15 December 2007 section 4(4) Dairy Industry Restructuring Amendment Act 2007 Section 5(1) farm gate milk price inserted 1 June 2021 section 5(1) Dairy Industry Restructuring Amendment Act 2020 Section 5(1) general export licence inserted 15 December 2007 section 4(1) Dairy Industry Restructuring Amendment Act 2007 Section 5(1) holder inserted 15 December 2007 section 4(1) Dairy Industry Restructuring Amendment Act 2007 Section 5(1) independent inserted 27 July 2012 section 4(1) Dairy Industry Restructuring Amendment Act 2012 Section 5(1) initial licence amended 15 December 2007 section 4(5) Dairy Industry Restructuring Amendment Act 2007 Section 5(1) intended manager inserted 1 June 2021 section 5(1) Dairy Industry Restructuring Amendment Act 2020 Section 5(1) interim licence inserted 15 December 2007 section 4(1) Dairy Industry Restructuring Amendment Act 2007 Section 5(1) interim period inserted 15 December 2007 section 4(1) Dairy Industry Restructuring Amendment Act 2007 Section 5(1) kilograms of milk solids inserted 1 June 2021 section 5(1) Dairy Industry Restructuring Amendment Act 2020 Section 5(1) licensed market inserted 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 5(1) listed repealed 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 5(1) manager of the core database inserted 1 June 2021 section 5(1) Dairy Industry Restructuring Amendment Act 2020 Section 5(1) marae inserted 15 December 2007 section 4(1) Dairy Industry Restructuring Amendment Act 2007 Section 5(1) market maker in co-operative shares replaced 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 5(1) milk price manual inserted 27 July 2012 section 4(1) Dairy Industry Restructuring Amendment Act 2012 Section 5(1) milk solids inserted 15 December 2007 section 4(1) Dairy Industry Restructuring Amendment Act 2007 Section 5(1) Ministry inserted 15 December 2007 section 4(1) Dairy Industry Restructuring Amendment Act 2007 Section 5(1) new co-op fund inserted 27 July 2012 section 4(1) Dairy Industry Restructuring Amendment Act 2012 Section 5(1) new co-op fund securities inserted 27 July 2012 section 4(1) Dairy Industry Restructuring Amendment Act 2012 Section 5(1) operator inserted 6 April 2023 section 161(2) Organic Products and Production Act 2023 Section 5(1) organic milk replaced 6 April 2023 section 161(3) Organic Products and Production Act 2023 Section 5(1) organic standard inserted 6 April 2023 section 161(2) Organic Products and Production Act 2023 Section 5(1) panel repealed 1 June 2021 section 5(3) Dairy Industry Restructuring Amendment Act 2020 Section 5(1) panel inserted 27 July 2012 section 4(1) Dairy Industry Restructuring Amendment Act 2012 Section 5(1) peak note price repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Section 5(1) peak note standard repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Section 5(1) peak notes repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Section 5(1) person eligible to hold an export licence inserted 15 December 2007 section 4(1) Dairy Industry Restructuring Amendment Act 2007 Section 5(1) personal information inserted 1 June 2023 section 13 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022 Section 5(1) previous manager inserted 1 June 2021 section 5(1) Dairy Industry Restructuring Amendment Act 2020 Section 5(1) publicly accessible inserted 1 June 2023 section 13 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022 Section 5(1) publicly available inserted 27 July 2012 section 4(1) Dairy Industry Restructuring Amendment Act 2012 Section 5(1) qualifying company repealed 1 June 2021 section 5(4) Dairy Industry Restructuring Amendment Act 2020 Section 5(1) qualifying products or services repealed 1 June 2021 section 5(4) Dairy Industry Restructuring Amendment Act 2020 Section 5(1) quota year inserted 15 December 2007 section 4(1) Dairy Industry Restructuring Amendment Act 2007 Section 5(1) quota year amended 31 May 2023 section 6 United Kingdom Free Trade Agreement Legislation Act 2022 Section 5(1) quoted inserted 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 5(1) raw milk inserted 1 June 2021 section 5(1) Dairy Industry Restructuring Amendment Act 2020 Section 5(1) registered market repealed 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 5(1) relative inserted 27 July 2012 section 4(1) Dairy Industry Restructuring Amendment Act 2012 Section 5(1) relevant interest replaced 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 5(1) restricted by an organic standard inserted 6 April 2023 section 161(2) Organic Products and Production Act 2023 Section 5(1) specified subpart 5 provisions inserted 27 July 2012 section 4(1) Dairy Industry Restructuring Amendment Act 2012 Section 5(1) total cost of milk inserted 1 June 2021 section 5(1) Dairy Industry Restructuring Amendment Act 2020 Section 5(1) total organic milk premium inserted 1 June 2021 section 5(1) Dairy Industry Restructuring Amendment Act 2020 Section 5(1) total winter milk premium inserted 1 June 2021 section 5(1) Dairy Industry Restructuring Amendment Act 2020 Section 5(1) trade replaced 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 5(1) winter milk inserted 1 June 2021 section 5(1) Dairy Industry Restructuring Amendment Act 2020 Section 5(2)﻿(b) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013
5A: Status of examples
1: An example used in this Act is only illustrative of the provisions to which it relates. It does not limit those provisions.
2: If an example and a provision to which it relates are inconsistent, the provision prevails. Section 5A inserted 1 June 2021 section 6 Dairy Industry Restructuring Amendment Act 2020
5B: Transitional, savings, and related provisions
The transitional, savings, and related provisions set out in Schedule 1 Section 5B inserted 1 June 2021 section 6 Dairy Industry Restructuring Amendment Act 2020
6: Act binds the Crown
This Act binds the Crown.
2: Restructuring and regulation of dairy industry
1: Authorisations under Commerce Act 1986
Subpart 1 repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
7: Authorisations granted
Section 7 repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
8: Assets and shares acquired after 15 August 2001
Section 8 repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
9: Undertaking to dispose of shares in New Zealand Dairy Foods Limited
Section 9 repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
10: Nature of obligation
Section 10 repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
11: New co-op’s constitution
Section 11 repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
2: Matters relating to New Zealand Dairy Board
Subpart 2 repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
12: Purpose
Section 12 repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Amendments to Dairy Board Act 1961 taking effect on amalgamation date Heading repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
13: Amendments to Dairy Board Act 1961
Section 13 repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Conversion of Board into company after 1 year Heading repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
14: Conversion of Board into company
Section 14 repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Exiting company buy-out agreements Heading repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
15: Agreement for transfer or surrender
Section 15 repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Default procedure for buy-out of exiting companies’ interests in Board Heading repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
16: Default procedure for buy-out of exiting companies’ interests in Board
Section 16 repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
17: Notice to stop default procedure
Section 17 repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
18: Default procedure to stop if new co-op amalgamation does not take effect
Section 18 repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Miscellaneous provisions relating to exiting company buy-out Heading repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
19: Transfer of shares
Section 19 repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
20: Cancellation of shares surrendered
Section 20 repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
3: International trade with designated markets
Access to designated markets
21: Purpose
1: The purpose of this subpart is to—
a: maximise the economic benefits to New Zealand arising from tariff quotas maintained by foreign governments controlling access to their domestic markets:
b: provide that the New Zealand dairy industry is the recipient of these benefits:
c: safeguard New Zealand’s interests in respect of those tariff quotas:
d: ensure that the administrative and other arrangements made are consistent with New Zealand’s international obligations.
2: The Crown owns the rights to secure the economic benefits deriving from the tariff quotas referred to in subsection (1).
3: Those rights in respect of designated markets described in Schedules 5 5A
4: This subpart does not prevent the Crown from engaging in international trade negotiations for the purpose of establishing, amending, or terminating tariff quotas. 1999 No 97 s 12 Section 21(3) amended 15 December 2007 section 5 Dairy Industry Restructuring Amendment Act 2007
22: Overview
1: Section 23
2: Sections 24 25
3: Sections 26 to 42 Section 22(3) substituted 15 December 2007 section 6 Dairy Industry Restructuring Amendment Act 2007
23: Restrictions on exports to designated markets
1: A person must not export directly or indirectly to a designated market any dairy product that is described in Schedules 5 5A
a: is the holder of a current export licence; and
b: exports product in accordance with that licence in respect to the product and market.
2: No export restrictions apply to a designated market listed in Schedule 5 Schedule 5A Section 23 substituted 15 December 2007 section 7 Dairy Industry Restructuring Amendment Act 2007 Export licences conferred on Board
24: Licences during initial period
1: The Board has the licences to export to each designated market until the end of the initial period.
2: The initial period
a: in respect of exports to designated markets in Canada, the period ending on 31 July 2007:
b: in respect of exports to designated markets in the European Communities, the period ending on 31 December 2007:
c: in respect of exports of cheddar cheese and low-fat cheese to designated markets in the United States of America, the period ending on 31 December 2008:
d: in respect of exports of NSPF cheese and other American-type cheeses to designated markets in the United States of America, the period ending on 31 December 2009:
e: in respect of exports to designated markets in Japan, the period ending on 31 March 2010:
f: in respect of exports to designated markets in the Dominican Republic, the period ending on 30 June 2007. 1999 No 97 s 14
25: Reduction of licences in respect of designated markets in European Communities during the interim period
1: The Board holds the interim licences to export to designated markets in the European Communities for the periods and the reduced amounts specified in subsection (2).
2: The reductions applying to the interim
a: in the 12 months to 31 December 2008,—
i: in the case of butter, for the lesser of 75% of the total available quantity and 57 500 tonnes of that butter:
ii: in the case of cheese for processing, for the lesser of 75% of the total available quantity and 3 000 tonnes of that cheese:
iii: in the case of cheddar cheese, for the lesser of 75% of the total available quantity and 5 250 tonnes of that cheese:
b: in the 12 months to 31 December 2009,—
i: in the case of butter, for the lesser of 50% of the total available quantity and 38 333 tonnes of that butter:
ii: in the case of cheese for processing, for the lesser of 50% of the total available quantity and 2 000 tonnes of that cheese:
iii: in the case of cheddar cheese, for the lesser of 50% of the total available quantity and 3 500 tonnes of that cheese:
c: in the 12 months to 31 December 2010,—
i: in the case of butter, for the lesser of 25% of the total available quantity and 19 166 tonnes of that butter:
ii: in the case of cheese for processing, for the lesser of 25% of the total available quantity and 1 000 tonnes of that cheese:
iii: in the case of cheddar cheese, for the lesser of 25% of the total available quantity and 1 750 tonnes of that cheese. Section 25 heading substituted 15 December 2007 section 8(1) Dairy Industry Restructuring Amendment Act 2007 Section 25(1) substituted 15 December 2007 section 8(2) Dairy Industry Restructuring Amendment Act 2007 Section 25(2) amended 15 December 2007 section 8(3) Dairy Industry Restructuring Amendment Act 2007
25A: Export licence conferred on Board by section 24 or 25 must be recorded in register of export licence holders
1: The chief executive must record an export licence conferred on the Board by section 24 25 section 29B
2: The Board must supply all necessary information to the chief executive for the purpose of subsection (1). Section 25A inserted 15 December 2007 section 9 Dairy Industry Restructuring Amendment Act 2007
26: Later allocation of export licences
1: The following are vested in or revert to the Crown:
a: any rights in respect of designated markets that become available as a result of the expiry of the initial period under section 24
b: any rights in respect of designated markets in the European Communities listed in Schedule 5A section 25
c: any quantities that become available as a result of increases in rights in respect of designated markets listed in Schedule 5A section 27A(2)
d: any rights in respect of designated markets listed in Schedule 5A
e: any rights in respect of the United Kingdom listed in Schedule 5A
2: Following the expiry of the initial and interim licences, export licences for the designated markets listed in Schedule 5A
3: The Minister must, in accordance with the rules set out in Schedule 5B Schedule 5A
4: If the Minister is satisfied that an allocation under subsection (3) is not appropriate, having regard to the purpose in section 21(1)
5: The Minister may allocate a general export licence for trade at the normal tariff (outside the terms of the quota), in respect of a designated market listed in Schedule 5A
6: Subsection (5) applies subject to section 29A
7: The Governor-General may, by Order in Council made on the recommendation of the Minister, allocate or reallocate export licences in respect of designated markets listed in Schedule 5A
8: Before making an allocation under subsection (5), the Minister must—
a: be satisfied that an allocation is appropriate in the circumstances; and
b: have regard to the purpose in section 21(1)
9: Subsection (1) does not limit the Minister’s power under subsection (3) or (5), or the Governor-General’s power under subsection (7), to allocate new licences in respect of those rights or quantities to the Board or new co-op.
10: An order under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 26 substituted 15 December 2007 section 10 Dairy Industry Restructuring Amendment Act 2007 Section 26(1)﻿(e) inserted 31 May 2023 section 7 United Kingdom Free Trade Agreement Legislation Act 2022 Section 26(10) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
26A: Commencement and expiry of UK quotas
1: If the UK FTA first comes into force on a day other than 1 January in any year, a transitional tariff rate quota must be applied in that year on a pro rata basis.
2: If a UK WTO tariff quota first becomes available under this Act on a day other than 1 January in any year, the tariff quota must be applied in that year on a pro rata basis.
3: Despite anything to the contrary in section 26
4: In this section,— transitional tariff rate quota Schedule 5A UK FTA UK WTO tariff quota Schedule 5A Section 26A inserted 31 May 2023 section 8 United Kingdom Free Trade Agreement Legislation Act 2022
27: Increases in rights to export to designated markets during initial period
1: This section applies if, during the initial period, there is an increase in the Crown’s rights to secure the economic benefits that are obtained from designated markets that are not allocated in an existing export licence.
2: Any such increase vests automatically in the Board as part of the initial licences conferred on the Board under this subpart. 1999 No 97 s 16
27A: Increases or reductions in rights to export to designated markets after initial period
1: This section applies if, after the initial period, there is an increase or reduction in rights to secure economic benefits from designated markets that are not allocated in an existing export licence.
2: An increase in a right to export to a designated market during the course of an allocation period accrues on a pro rata basis to the registered holders of export licences at the time the increase first becomes available for use.
3: A reduction in a right to export to a designated market during the course of an allocation period applies on a pro rata basis to the registered holders of export licences for that designated market at the time the volumes reduce.
4: In the case of interim licences held by the Board, the allocation period for any licence for a specified quantity is the period for which the licence is valid for that quantity.
5: An accrual under subsection (2) and a reduction under subsection (3) applies only for the remainder of the allocation period.
6: An accrual or reduction referred to in subsection (5) must be recorded in the register of export licence holders that is kept in accordance with section 29B Section 27A inserted 15 December 2007 section 11 Dairy Industry Restructuring Amendment Act 2007
28: Restriction on transfer of initial licences
1: The Board may not transfer, sub-license, or otherwise dispose of an initial licence in respect of a designated market to any other person.
2: In order to comply with the restriction on transfer in subsection (1) and for the purposes of the Customs and Excise Act 2018 Section 28(2) amended 1 October 2018 section 443(3) Customs and Excise Act 2018 Transferring export licences Heading inserted 15 December 2007 section 12 Dairy Industry Restructuring Amendment Act 2007
28A: Transferring export licences
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for the purpose of governing the transfer of export licences or parts of export licences.
2: Export licences may be transferred only in accordance with regulations made in accordance with subsection (1).
3: The chief executive is responsible for administering the transfer of export licences.
4: Subsection (1) applies subject to section 28
5: Regulations made under this section are see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 28A inserted 15 December 2007 section 12 Dairy Industry Restructuring Amendment Act 2007 Section 28A(5) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Section 28A(5) amended 28 October 2021 regulation 20 Legislation Act (Amendments to Legislation) Regulations 2021 Revocation of initial licences Heading inserted 15 December 2007 section 13 Dairy Industry Restructuring Amendment Act 2007
29: Revocation of initial licences
1: All of the initial licences of the Board are revoked in the case of—
a: the Board’s insolvency:
b: new co-op ceasing to control the Board.
2: An initial licence of the Board is revoked if the Board transfers, sub-licenses, or otherwise disposes of any rights conferred by it to another person.
3: The rights conferred by a licence that is revoked revert to the Crown.
4: The Governor-General may, by Order in Council made on the recommendation of the Minister, allocate new licences in respect of the rights that revert to the Crown under this section.
5: Before making a recommendation under subsection (4), the Minister must have regard to the purpose in section 21(1)
6: Subsection (1) does not limit the Governor-General’s power under subsection (4) to allocate new licences in respect of those rights to the Board or new co-op.
7: An order under this section is secondary legislation ( see Part 3 1999 No 97 s 17 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 29(7) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Quota trade completed before trade at normal tariff Heading inserted 15 December 2007 section 14 Dairy Industry Restructuring Amendment Act 2007
29A: Quota trade completed before trade at normal tariff
1: This section applies to trade at the normal tariff (outside the terms of the quota) for the following markets:
a: prepared edible fat to Japan:
b: milk powder to the Dominican Republic.
2: For the markets listed in subsection (1), in any quota year, holders of export licences for trade at the normal tariff may not use those export licences until the quota for the market is filled in that quota year.
3: A quota is to be treated as filled when the competent authority has issued export certificates to all licence holders for at least 95% of each export licence holder’s quantity of export licences.
4: The competent authority must publicly notify the industry when a quota is filled in accordance with subsection (3).
5: When a quota is filled, the competent authority must, as soon as is reasonably practicable,—
a: publish a notice in the Gazette
b: notify the eligible participants in any manner that the competent authority considers effective and appropriate, including electronically.
6: An export licence holder may use the export licence for trade at the normal tariff only for the remainder of the quota year in which publication and notification are made in accordance with subsection (5). Section 29A inserted 15 December 2007 section 14 Dairy Industry Restructuring Amendment Act 2007 Maintaining register of licence holders Heading inserted 15 December 2007 section 14 Dairy Industry Restructuring Amendment Act 2007
29B: Register of export licence holders
1: The chief executive must—
a: keep and maintain a register of export licence holders; and
b: make the register available to the competent authority; and
c: on receipt of a written request, allow a holder of an export licence to inspect information on the register that relates to his or her licence.
2: The register must contain the following information:
a: the full name and address of the export licence holder:
b: each designated market for which the holder holds an export licence:
c: the volume of quota rights held in respect of each export licence for each quota year:
d: the following dates for each export licence:
i: date of registration:
ii: date of commencement:
iii: date of expiry:
e: the date of transfer, if any, of the export licence or part of the export licence:
f: the full name and address of the previous holder of the export licence.
3: If a person holds more than 1 export licence for a designated market for the same quota year, each export licence must be registered separately.
4: This section does not apply to general export licences allocated under section 26(5) Section 29B inserted 15 December 2007 section 14 Dairy Industry Restructuring Amendment Act 2007 Powers of chief executive Heading inserted 15 December 2007 section 14 Dairy Industry Restructuring Amendment Act 2007
29C: Power to authorise persons
The chief executive may only authorise a person to exercise a power under sections 29E to 29H Section 29C inserted 15 December 2007 section 14 Dairy Industry Restructuring Amendment Act 2007 Section 29C amended 1 October 2012 section 230(2) Search and Surveillance Act 2012
29D: Power to require assistance
The chief executive, or a person authorised by the chief executive, may call on any person for assistance in the exercise of any or all of the powers under sections 29E to 29L Section 29D inserted 15 December 2007 section 14 Dairy Industry Restructuring Amendment Act 2007
29E: Power of entry without search warrant
1: For the purpose of determining and monitoring compliance with the rules set out in Schedule 5B
2: Before entering any place under subsection (1), the chief executive or person authorised by the chief executive must—
a: give the owner or occupier reasonable notice of his or her intention to enter the place, unless to do so would defeat the purpose of the entry; and
b: if notice under paragraph (a) is not or cannot be given, leave in a prominent location at the place a written statement of—
i: the time and date of the entry; and
ii: the purpose of the entry; and
iii: the name of the person; and
iv: the address of the office to which inquiries should be made.
3: A person who exercises any power under this section must produce his or her evidence of authorisation—
a: on first entering the place; and
b: subsequently whenever reasonably required to do so by a person appearing to have charge of the place or any part of the place. Section 29E inserted 15 December 2007 section 14 Dairy Industry Restructuring Amendment Act 2007
29F: Power to examine, etc
For the purpose of determining and monitoring compliance with the rules set out in Schedule 5B section 29E
a: examine all things, and open containers, packages, and other things to inspect their contents:
b: examine, inquire about, and copy any documents or other records (including records held in electronic or other form) and may—
i: remove documents or records to another place for a reasonable time for the purpose of copying them, or require the person having control of the documents or other records to forward them or a copy of them to the officer by way of post, courier post, fax, or other means acceptable to the chief executive or authorised person; and
ii: require a person who has control of or knowledge of the documents or records to reproduce or assist in reproducing in usable form information recorded or stored in a computer or other device or system; and
iii: direct the occupier to identify and hold any equipment, package, container, or document until any lawful direction of the chief executive, or a person authorised by the chief executive, has been complied with; and
iv: take photographs of any container, package, equipment, or thing. Section 29F inserted 15 December 2007 section 14 Dairy Industry Restructuring Amendment Act 2007
29G: Power to require information
1: For the purpose of determining and monitoring compliance with the rules set out in Schedule 5B
2: Any information, documents, or answers required under subsection (1) must be provided within a reasonable time to a person or place as directed by the chief executive, or a person authorised by the chief executive.
3: An eligible participant or an employee or agent of an eligible participant may not refuse to answer a question under subsection (1) on the ground that the answer would be likely to incriminate the eligible participant.
4: An incriminating answer under this section—
a: may be used in civil or criminal proceedings against the eligible participant if it is a body corporate; but
b: may not be used in civil or criminal proceedings against the employee or agent of the eligible participant who gave the incriminating answer. Section 29G inserted 15 December 2007 section 14 Dairy Industry Restructuring Amendment Act 2007
29H: Power to audit milk
solids
1: For the purpose of determining and monitoring compliance with the rules set out in Schedule 5B solids
2: Participants must be notified of the possibility of an audit on a cost-recovery basis at the time of an application for an export licence.
3: Participants may be charged a fee for an audit carried out under subsection (1). Section 29H inserted 15 December 2007 section 14 Dairy Industry Restructuring Amendment Act 2007 Section 29H heading amended 31 May 2023 section 9(1) United Kingdom Free Trade Agreement Legislation Act 2022 Section 29H(1) amended 31 May 2023 section 9(2) United Kingdom Free Trade Agreement Legislation Act 2022 Search warrants Heading inserted 15 December 2007 section 14 Dairy Industry Restructuring Amendment Act 2007
29I: Issue of search warrant
1: An issuing officer (within the meaning of section 3 made in the manner provided in subpart 3
a: in respect of which an offence under section 31(3)
b: that has been, is being, or is intended to be used by any person for the commission of an offence under section 31(3)
c: that is evidence of the commission of an offence under section 31(3)
2: Subject to section 29L Part 4
3: Despite subsection (2), sections 118 119 Section 29I inserted 15 December 2007 section 14 Dairy Industry Restructuring Amendment Act 2007 Section 29I(1) amended 1 October 2012 section 230(3)﻿(a) Search and Surveillance Act 2012 Section 29I(1) amended 1 October 2012 section 230(3)﻿(b) Search and Surveillance Act 2012 Section 29I(2) replaced 1 October 2012 section 230(4) Search and Surveillance Act 2012 Section 29I(3) replaced 1 October 2012 section 230(4) Search and Surveillance Act 2012
29J: Entry and search powers when executing warrant
Section 29J repealed 1 October 2012 section 230(5) Search and Surveillance Act 2012
29K: Requirements when executing warrant
Section 29K repealed 1 October 2012 section 230(5) Search and Surveillance Act 2012
29L: Disposal of property seized under search warrant
Subpart 6 constable
a:
b:
c:
d: if any person is convicted of an offence to which the item relates, the court may, if it thinks fit, order that the item be forfeited to the Crown or disposed of as the court directs at the expense of the convicted person, and may order that the person pay any reasonable costs incurred by the Commissioner of Police or the chief executive in retaining the item. Section 29L inserted 15 December 2007 section 14 Dairy Industry Restructuring Amendment Act 2007 Section 29L amended 1 October 2012 section 230(6)﻿(a) Search and Surveillance Act 2012 Section 29L amended 1 October 2008 section 116(a)﻿(ii) Policing Act 2008 Section 29L(a) repealed 1 October 2012 section 230(6)﻿(b) Search and Surveillance Act 2012 Section 29L(b) repealed 1 October 2012 section 230(6)﻿(b) Search and Surveillance Act 2012 Section 29L(c) repealed 1 October 2012 section 230(6)﻿(b) Search and Surveillance Act 2012 Enforcement
30: Customs and Excise Act 2018 to apply to prohibited exports
1: All the provisions of the Customs and Excise Act 2018 subpart 4
2: The penalty for an offence against section 388(1)﻿(b) Section 30 replaced 1 October 2018 section 443(3) Customs and Excise Act 2018
31: Offences
1: Every person commits an offence against this Act and is liable on section 23
2: Every person commits an offence against this Act, and is liable on section 29G
a: a fine not exceeding $200,000; and
b: a further fine not exceeding $10,000 for every day or part of a day during which the offence is continued.
3: Every person commits an offence against this Act, and is liable for the following, who provides a false declaration in relation to milk solids Schedule 5B
a: a declaration by a court of competent jurisdiction that the person is not eligible for further allocations of export licences for a period determined by the court; and
b: a fine not exceeding $200,000 or a term of imprisonment not exceeding 3 months, or both. 1996 No 40 ss 13 15 1999 No 97 s 28 Section 31(1) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 31(2) added 15 December 2007 section 15 Dairy Industry Restructuring Amendment Act 2007 Section 31(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 31(3) added 15 December 2007 section 15 Dairy Industry Restructuring Amendment Act 2007 Section 31(3) amended 31 May 2023 section 10 United Kingdom Free Trade Agreement Legislation Act 2022
32: Strict liability
1: In any proceedings for an offence under section 31
2: This section does not limit section 429(4) 1996 No 88 s 240 1999 No 97 s 29 Section 32(2) amended 1 October 2018 section 443(3) Customs and Excise Act 2018
33: Defence available
1: It is a defence in any proceedings for an offence under section 31
a: the contravention was due to an event or cause beyond the control of the defendant, including natural disaster, mechanical failure, or sabotage; and
b: the defendant took reasonable precautions and exercised due diligence to avoid the contravention.
2: A defendant is not, without leave of the court, entitled as part of a defence provided by this section to rely on any of the matters specified in subsection (1)﻿(a) unless the defendant has, not later than 7 working days before the date on which the hearing of the proceedings commences, served on the prosecutor 1996 No 88 s 241 1999 No 97 s 30 Section 33(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011
34: Liability of companies and persons for actions of agents or employees
1: Any act or omission on behalf of a person other than a body corporate by—
a: an agent or employee of that person; or
b: any person at the direction or with the consent or agreement, whether express or implied, of any person referred to in paragraph (a),— is treated, for the purpose of this subpart, also as the act or omission of the first-mentioned person.
2: Any act or omission on behalf of a body corporate by—
a: a director, agent, or employee of that body corporate; or
b: any other person at the direction or with the consent or agreement, whether express or implied, of any person referred to in paragraph (a)— is treated, for the purpose of this subpart, also as the act or omission of the body corporate.
3: However, if proceedings are brought under section 31
a: in the case of a natural person (including a partner in a firm), that—
i: he or she did not know nor could reasonably be expected to have known that the offence was to be or was being committed; or
ii: he or she took all reasonable steps to prevent the commission of the offence; and
b: in the case of a body corporate, that—
i: neither the directors nor any person involved in the management of the body corporate knew or could reasonably be expected to have known that the offence was to be or was being committed; or
ii: the body corporate took all reasonable steps to prevent the commission of the offence; and
c: in all cases, that the defendant took all reasonable steps to remedy any effects of the act or omission giving rise to the offence.
4: For the purposes of this section,—
a: a person may act as an agent of another person or body corporate whether or not the first-mentioned person is employed by the other person or body corporate and whether or not he or she is acting for reward:
b: any agent or employee of a person acting as an agent is treated as also acting as an agent for the other person or body corporate referred to in paragraph (a). 1996 No 88 s 245 1999 No 97 s 31
35: Liability of directors and managers
1: If a body corporate commits an offence under section 31
a: the act or omission that constituted the offence took place with the director’s or person’s authority, permission, or consent; or
b: the director or person knew or should have known that the offence was to be or was being committed and failed to take all reasonable steps to prevent or stop it.
2: Every person to whom subsection (1) applies is liable on section 31
3: A person may be convicted of the offence even though the body corporate has not been charged with that offence or a similar offence. 1996 No 88 s 246 1999 No 97 s 31 Section 35(2) amended 1 July 2013 section 413 Criminal Procedure Act 2011
36: Presumption as to authority
A return, record, transaction, form, application, or other information purporting to be completed, kept, or provided by, or on behalf of, any person is, for the purpose of this subpart, treated as having been completed, kept, or provided by that person unless the contrary is proved. 1996 No 88 s 247 1999 No 97 s 31
37: No Crown liability
The Crown is not liable to any person for—
a: any termination or amendment of tariff quotas, however caused; or
b: any reduction, expiry, revocation, or reversion of export licences under this subpart; or
c: any reduction in the value of export licences, however caused.
38: Infringement actionable by licensee
1: The export of dairy product to a designated market in breach of section 23
2: No proceedings may be brought under subsection (1) in respect of the export of any dairy product unless the Customs administration or other authority responsible for the administration of the tariff quota in the market to which the specific product has been exported has treated, or has determined (whether provisionally or finally) to treat, that specific product as falling within the relevant designated market.
3: In proceedings under subsection (1), the court may award any relief by way of damages, injunctions, accounts, or otherwise that the court considers appropriate in the circumstances.
4: In proceedings under subsection (1), the court may give any directions it thinks just in respect of the joinder of any person having concurrent rights of action under subsection (1) in respect of the alleged breach. 1962 No 33 s 24(1) 1994 No 143 ss 120 124 1999 No 97 s 33
39: Unjustified proceedings
1: If a person brings proceedings under section 38
a: make a declaration that the bringing of proceedings was unjustified:
b: on making a declaration, make an order for the payment of damages for any loss suffered by the person against whom the proceedings are brought.
2: A court must not grant relief under this section if the person who brought the proceedings proves that the acts in respect of which proceedings were brought constituted a breach of section 23
3: Nothing in this section makes a barrister or solicitor of the High Court of New Zealand liable to any proceedings under this section in respect of any act done in his or her professional capacity on behalf of a client. 1994 No 116 s 40 1994 No 143 s 130 1999 No 97 s 34 Notice of international obligations
40: Notice of international obligations
1: The Minister of the Crown who (under the authority of any warrant or with the authority of the Prime Minister) is in charge of international trade may at any time give to any exporter to a designated market a written notice specifying—
a: a particular international obligation of New Zealand; and
b: an element of the performance of the exporter’s functions or the exercise of the exporter’s powers to which, in the Minister’s opinion, the obligation is relevant.
2: The exporter to whom the notice is given is under a legal duty to ensure that its performance or the exercise of the element is consistent with the obligation until the notice is revoked. Supply of information
41: Minister may require information
1: Any holder of an export licence must supply to the Minister any information relating to designated markets that the Minister considers is relevant to the purpose in section 21(1)
2: Subsection (1) applies only to information that is in the person’s possession or that the person can obtain without unreasonable difficulty or expense.
3: Every person commits an offence who fails, without reasonable excuse, to comply with a request under subsection (1) and is liable on Section 41(3) amended 1 July 2013 section 413 Criminal Procedure Act 2011
42: Disclosure of information
1: The chief executive (or any officer of his or her Ministry authorised in that behalf) and the Comptroller of Customs (or any officer of Customs authorised in that behalf) may, for the purpose of the administration of this Act or the Dairy Industry Act 1952 Customs and Excise Act 2018
2: Information obtained under subsection (1) must not be disclosed except—
a: to the persons authorised under that subsection; or
b: for the purpose of any proceedings that have been commenced or that are reasonably in contemplation and that are connected with a matter in relation to which those persons perform their duties.
3: No obligation as to secrecy or other restriction on the disclosure of information imposed by any enactment or otherwise prevents a disclosure under this section. Section 42(1) amended 1 October 2018 section 443(3) Customs and Excise Act 2018
4: Management of core database
Subpart 4 heading replaced 1 June 2021 section 7 Dairy Industry Restructuring Amendment Act 2020
43: Overview
1: Section 43A
2: Sections 48 to 52
2A: Sections 62 to 65D
a: herd testing:
b: the provision of information to the core database:
c: access to the core database:
d: disclosure of information by the manager of the core database:
e: the appointment of the manager of the core database and the naming of an intended manager:
f: the regulation of a previous manager or an intended manager of the core database.
3: Sections 66 to 68 Section 43(1) replaced 1 June 2021 section 8(1) Dairy Industry Restructuring Amendment Act 2020 Section 43(2) replaced 1 June 2021 section 8(1) Dairy Industry Restructuring Amendment Act 2020 Section 43(2A) inserted 1 June 2021 section 8(1) Dairy Industry Restructuring Amendment Act 2020 Section 43(3) amended 1 June 2021 section 8(2) Dairy Industry Restructuring Amendment Act 2020
43A: Manager of core database must retain database
1: The constitution of the manager of the core database must be read as requiring the manager to retain the core database.
2: Subsection (1) does not apply if—
a: the Minister and the manager of the core database agree in writing that the subsection no longer applies; or
b: the manager of the core database is the Crown. Section 43A inserted 1 June 2021 section 10 Dairy Industry Restructuring Amendment Act 2020 Restructuring plan for LIC Heading repealed 1 June 2021 section 9 Dairy Industry Restructuring Amendment Act 2020
44: Restructuring plan
Section 44 repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
45: Contents of restructuring plan
Section 45 repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
46: Share allocation plan
Section 46 repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
47: Constitution must provide for retention of core database
Section 47 repealed 1 June 2021 section 40 Dairy Industry Restructuring Amendment Act 2020
48: Constitution must restrict who may hold shares
1: The LIC board must ensure that the constitution in the restructuring plan requires that shares in LIC must be held only by persons who—
a: derive an income from farming dairy cows in New Zealand whose milk is supplied for processing in New Zealand (including sharemilkers); and
b: purchase products or services from LIC, as determined by LIC.
2: The LIC board must ensure that the constitution in the restructuring plan requires a shareholder who is not, or has ceased to be, a transacting shareholder of LIC to surrender all or any of the shareholder’s shares in LIC.
3: The provision in the constitution required by subsection (1) does not prevent—
a: shareholders continuing to hold shares until surrender, in accordance with the provision in the constitution required by subsection (2); or
b: LIC holding its own shares under section 24 section 67A
49: Constitution must impose maximum voting rights
1: The LIC board must ensure that the constitution in the restructuring plan provides that no person may exercise, or control the exercise of, more than 1% of the maximum number of votes that may be exercised at a meeting of LIC.
2: The LIC board must ensure that the constitution in the restructuring plan provides that the following are included in the calculation of a person’s number of votes:
a: the number of votes that an associated person of the person may exercise or control the exercise of; and
b: the number of votes that a person may exercise or control the exercise of by reason of being appointed as a proxy.
50: Constitution must provide for postal voting
The LIC board must ensure that the constitution in the restructuring plan provides for postal voting in accordance with clause 7
51: Minister’s consent needed to change certain provisions of constitution
The provisions of the constitution of LIC referred to in sections 47 to 50
52: Corporate form
1: The LIC board must ensure that, under the restructuring plan, LIC becomes a company registered under Part 2
2: No application may be made under section 12
3: Subsection (2) is additional to the requirements in section 12
53: Application for registration of co-operative company
Section 53 repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Minister approves restructuring plan Heading repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
54: LIC board must give restructuring plan to Minister
Section 54 repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
55: Approval of restructuring plan
Section 55 repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
56: Revision of restructuring plan
Section 56 repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
57: Approval of revised restructuring plan
Section 57 repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
58: Failure to submit restructuring plan
Section 58 repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Notification to prospective shareholders Heading repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
59: Notification to prospective shareholders
Section 59 repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Implementation of restructuring plan Heading repealed 1 June 2021 section 11 Dairy Industry Restructuring Amendment Act 2020
60: Implementation of restructuring plan
Section 60 repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
61: Employees
Section 61 repealed 1 June 2021 section 11 Dairy Industry Restructuring Amendment Act 2020 Miscellaneous
62: Regulations relating to herd testing and provision of information to core database
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for all or any of the following purposes:
a: prohibiting herd testing except by persons or classes of persons, and in circumstances, specified in the regulations:
b: providing for the certification of herd testers or herd testing equipment, including—
i: providing for the approval of persons to issue certifications:
ii: providing for the criteria for, and terms and conditions of, certification:
iii: providing for other matters related to certifications, including applications, procedures, auditing of herd testers against herd testing practice standards, and the keeping of registers:
c: requiring LIC to offer a nationwide herd testing service:
d: requiring LIC to charge uniform prices for its herd testing service within regions specified in the regulations:
e: specifying information that must be provided to the manager of the core database for entering into the core database
f: requiring the manager of the core database
g: restricting the liability of the Crown for acts or omissions of persons approved to issue certifications.
2: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 62(1)﻿(e) amended 1 June 2021 section 12(1) Dairy Industry Restructuring Amendment Act 2020 Section 62(1)﻿(f) amended 1 June 2021 section 12(2) Dairy Industry Restructuring Amendment Act 2020 Section 62(2) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
63: Regulations relating to access to core database
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for all or any of the following purposes:
a: prohibiting the manager of the core database
b: providing for the establishment of an Access Panel
i: decide applications for access to data in the core database; and
ii: determine other circumstances in which the manager of the core database
c: restricting the manager of the core database
i: in accordance with a decision or determination of the Access Panel
ii: to the owner of the dairy herd to which the data relates:
d: requiring the Access Panel
e: if the Access Panel Access Panel Access Panel
f: providing for matters concerning the Access Panel’s
g: allowing the Access Panel the manager of the core database’s
h: requiring the manager of the core database Access Panel the manager of the core database
i: prescribing fees that may be charged by the Access Panel
j: requiring the manager of the core database
2: A levy order under subsection (1)﻿(j) must specify the amount of the levy or the way the levy must be calculated.
3: The Minister must calculate the amount of the levy so as to ensure that the costs of the Access Panel
4: The manager of the core database
5: The Minister must consult with the manager of the core database
6: The Minister may—
a: deduct over-recoveries in respect of a financial year from the levy payable in subsequent financial years; or
b: add under-recoveries in respect of a financial year to the levy payable in subsequent financial years.
7: The amount of unpaid levy is recoverable in a court of competent jurisdiction as a debt due to the Crown.
8: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 63(1)﻿(a) amended 1 June 2021 section 13(1) Dairy Industry Restructuring Amendment Act 2020 Section 63(1)﻿(b) amended 1 June 2021 section 40 Dairy Industry Restructuring Amendment Act 2020 Section 63(1)﻿(b)﻿(ii) amended 1 June 2021 section 13(1) Dairy Industry Restructuring Amendment Act 2020 Section 63(1)﻿(c) amended 1 June 2021 section 13(1) Dairy Industry Restructuring Amendment Act 2020 Section 63(1)﻿(c)﻿(i) amended 1 June 2021 section 40 Dairy Industry Restructuring Amendment Act 2020 Section 63(1)﻿(d) amended 1 June 2021 section 40 Dairy Industry Restructuring Amendment Act 2020 Section 63(1)﻿(e) amended 1 June 2021 section 40 Dairy Industry Restructuring Amendment Act 2020 Section 63(1)﻿(f) amended 1 June 2021 section 40 Dairy Industry Restructuring Amendment Act 2020 Section 63(1)﻿(g) amended 1 June 2021 section 13(2) Dairy Industry Restructuring Amendment Act 2020 Section 63(1)﻿(g) amended 1 June 2021 section 40 Dairy Industry Restructuring Amendment Act 2020 Section 63(1)﻿(h) amended 1 June 2021 section 13(1) Dairy Industry Restructuring Amendment Act 2020 Section 63(1)﻿(h) amended 1 June 2021 section 40 Dairy Industry Restructuring Amendment Act 2020 Section 63(1)﻿(i) amended 1 June 2021 section 40 Dairy Industry Restructuring Amendment Act 2020 Section 63(1)﻿(j) amended 1 June 2021 section 13(1) Dairy Industry Restructuring Amendment Act 2020 Section 63(3) amended 1 June 2021 section 40 Dairy Industry Restructuring Amendment Act 2020 Section 63(4) amended 1 June 2021 section 13(3) Dairy Industry Restructuring Amendment Act 2020 Section 63(5) amended 1 June 2021 section 13(1) Dairy Industry Restructuring Amendment Act 2020 Section 63(8) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
64: General regulations relating to herd testing and core database
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for all or any of the following purposes:
a: providing for the confidentiality of—
i: information supplied to the manager of the core database
ii: data in the core database; and
iii: information about applications for access:
b: providing for audits of the manager of the core database’s section 62 section 63
c: prescribing offences for the breach of, or non-compliance with, any of those regulations:
d: prescribing penalties not exceeding $20,000 for any offences prescribed under any of those regulations:
e: providing that a person is liable for damages for any loss or damage caused by that person’s contravention of any of those regulations.
2: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 64(1)﻿(a)﻿(i) amended 1 June 2021 section 14(1) Dairy Industry Restructuring Amendment Act 2020 Section 64(1)﻿(b) amended 1 June 2021 section 14(2) Dairy Industry Restructuring Amendment Act 2020 Section 64(2) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
65: Regulations requiring disclosure of information by
manager of core database
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for all or any of the following purposes:
a: requiring the manager of the core database
i: the manager’s
ii: the manager’s Access Panel
b: prescribing the form of statutory declaration and who must provide it under section 66(4)
c: setting rules about when and for how long information must be disclosed.
2: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 65 heading amended 1 June 2021 section 15(1) Dairy Industry Restructuring Amendment Act 2020 Section 65(1)﻿(a) amended 1 June 2021 section 15(2) Dairy Industry Restructuring Amendment Act 2020 Section 65(1)﻿(a)﻿(i) amended 1 June 2021 section 15(3) Dairy Industry Restructuring Amendment Act 2020 Section 65(1)﻿(a)﻿(ii) amended 1 June 2021 section 15(3) Dairy Industry Restructuring Amendment Act 2020 Section 65(1)﻿(a)﻿(ii) amended 1 June 2021 section 40 Dairy Industry Restructuring Amendment Act 2020 Section 65(2) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
65A: Regulations appointing manager of core database
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations appointing an entity to manage the core database.
2: The Minister may make the recommendation only if—
a: the core database reverts to the Crown under section 68
b: the existing manager of the core database asks the Minister in writing to make the recommendation; or
c: the existing manager has changed, or the Minister considers it likely that the existing manager will change, its constitution in a way that the Minister considers may compromise its suitability as manager of the core database; or
d: the Minister considers that the existing manager has failed, or is at risk of failing, to—
i: comply with this Act or any regulations made under sections 62 to 65
ii: manage the core database in a way that the Minister considers satisfactory.
3: The Minister must,—
a: before making a recommendation under subsection (2)﻿(c), consult the existing manager:
b: before making a recommendation under subsection (2)﻿(d)﻿(ii), give the existing manager a reasonable opportunity to manage the database in a way that the Minister considers satisfactory.
4: An appointment under subsection (1) takes effect on a date specified in the regulations.
5: The appointment of an existing manager ends when an appointment under subsection (1) takes effect.
6: A failure to comply with subsection (3) does not affect the validity of regulations made under this section.
7: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 65A replaced 1 June 2021 section 16 Dairy Industry Restructuring Amendment Act 2020 Section 65A(7) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
65B: Regulations naming intended manager of core database
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations naming an entity as the intended manager of the core database.
2: The Minister may make the recommendation only on the written request of the entity.
3: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 65B inserted 1 June 2021 section 16 Dairy Industry Restructuring Amendment Act 2020 Section 65B(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
65C: Regulations for previous manager or intended manager of core database
1: This section applies if 1 or both of the following apply:
a: regulations are made under section 65A
b: regulations are made under section 65B
2: For the purposes of this section, the provisions referred to in subsection (3) apply as if the previous manager or intended manager were the manager of the core database.
3: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for all or any of the following purposes:
a: the purposes described in—
i: section 62(e) and (f)
ii: section 63(1)﻿(a), (c), (g), (h), and (j)
iii: section 64(a)
iv: section 65
b: providing for audits of compliance with regulations made under paragraph (a)﻿(i) to (iii) and for matters related to the audit, including the auditor’s powers:
c: prescribing offences for the breach of, or non-compliance with, regulations made under paragraph (a)﻿(i) to (iii):
d: prescribing penalties not exceeding $20,000 for any of those offences:
e: providing that a person is liable for damages for any loss or damage caused by that person’s contravention of regulations made under paragraph (a)﻿(i) to (iii).
4: If regulations are made, or to be made, under this section for the purpose described in section 63(1)﻿(j)
a: to the previous manager or intended manager as if it were the manager of the core database; and
b: to the regulations as if they were made, or to be made, under section 63
5: If regulations are made under this section for a purpose described in section 65 sections 66 67
a: to the previous manager or intended manager as if it were the manager of the core database; and
b: to the regulations as if they were made under section 65
6: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 65C inserted 1 June 2021 section 16 Dairy Industry Restructuring Amendment Act 2020 Section 65C(6) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
65D: Duration of regulations for previous manager or intended manager of core database
1: Regulations made under section 65C
a: the regulations are revoked earlier; or
b: the Governor-General by Order in Council confirms that the regulations will remain in force.
2: If an Order in Council is made under subsection (1)﻿(b), the regulations remain in force until they are revoked.
3: An order under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 65D inserted 1 June 2021 section 16 Dairy Industry Restructuring Amendment Act 2020 Section 65D(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
66: Information to be supplied to chief executive
1: The manager of the core database section 65
2: The chief executive may request (in writing) information, statements, or reports from the manager of the core database the manager’s section 65
3: The manager of the core database
4: Information, statements, or reports supplied to the chief executive under this section must be verified by statutory declaration in the form and by the persons prescribed by regulations made under section 65(b) Section 66(1) amended 1 June 2021 section 17(1) Dairy Industry Restructuring Amendment Act 2020 Section 66(2) substituted 15 December 2007 section 18(2) Dairy Industry Restructuring Amendment Act 2007 Section 66(2) amended 1 June 2021 section 17(2) Dairy Industry Restructuring Amendment Act 2020 Section 66(2) amended 1 June 2021 section 17(3) Dairy Industry Restructuring Amendment Act 2020 Section 66(3) amended 1 June 2021 section 17(1) Dairy Industry Restructuring Amendment Act 2020
67: Offences
1: Every person commits an offence against this section who—
a: fails, without reasonable excuse, to comply with any information disclosure requirements prescribed in regulations made under section 65
b: fails, without reasonable excuse, to comply with the requirements of section 66(1) or (3)
2: Every person commits an offence against this section who makes a false declaration under section 66(4)
3: Every person who commits an offence against subsection (1) is liable on
4: Every person who commits an offence against subsection (2) is liable on Section 67(3) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 67(4) amended 1 July 2013 section 413 Criminal Procedure Act 2011
68: When management of core database reverts to the Crown
The management of the core database reverts to the Crown if—
a: the Minister and the manager of the core database agree under section 43A(2)﻿(a)
b: a liquidator or interim liquidator is appointed for the manager of the core database under Part 16
c: an administrator is appointed for the manager of the core database in respect of a voluntary administration under Part 15A
d: a receiver is appointed in respect of all or substantially all of the property of the manager of the core database; or
e: a statutory manager is appointed for the manager of the core database under Part 3
f: the manager of the core database is removed from the register of companies kept under section 360(1)﻿(a)
g: the manager of the core database is liquidated, wound up, or dissolved or otherwise ceases to exist. Section 68 replaced 1 June 2021 section 18 Dairy Industry Restructuring Amendment Act 2020
69: Herd Testing Regulations 1958 deemed to have been made under this Act
Section 69 repealed 1 June 2021 section 19 Dairy Industry Restructuring Amendment Act 2020
5: Regulation of dairy markets and obligations of new co-op
Purpose and principles
70: Purpose
The purpose of this subpart is to promote the efficient operation of dairy markets in New Zealand.
71: Statement of principles
The intention of this subpart is to promote the following principles:
a: independent processors must be able to obtain raw milk, and other dairy goods and services, necessary for them to compete in dairy markets:
b: new co-op must accept applications by shareholding farmers to supply it with milk:
c: new co-op must not discriminate between new entrants and shareholding farmers whose circumstances are the same:
d: shareholding farmers who withdraw from new co-op, and cease or reduce supply, must receive their capital in new co-op without unreasonable delay:
e: the amount per unit of milk production paid, at a time, to new co-op to become a shareholding farmer must be the same as the amount per unit of milk production received, at the same time, from new co-op by a shareholding farmer who withdraws from new co-op.
f: Section 71(b) replaced 1 June 2023 section 20 Dairy Industry Restructuring Amendment Act 2020 Section 71(f) repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
72: Overview
1: Sections 73 to 85
2: Sections 86 to 93
3:
4: Sections 97 to 105
5: Sections 106 to 109
5A: Sections 109A to 109J licensed market and there is established a fund (the new co-op fund) the securities of which are quoted on a licensed market
5B: Sections 109K to 109M
6:
7: Sections 115 to 119
8: Sections 120 to 133
9: Section 134
10: Sections 135 to 139
11: Sections 147 to 150 subparts 5 5A
11:
12: Section 72(1) replaced 1 June 2023 section 21(1) Dairy Industry Restructuring Amendment Act 2020 Section 72(3) repealed 1 June 2023 section 21(2) Dairy Industry Restructuring Amendment Act 2020 Section 72(5A) inserted 27 July 2012 section 5 Dairy Industry Restructuring Amendment Act 2012 Section 72(5A) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 72(5B) inserted 27 July 2012 section 5 Dairy Industry Restructuring Amendment Act 2012 Section 72(6) repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Section 72(10) replaced 1 June 2023 section 4 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022 Section 72(11) inserted 1 June 2021 section 40 Dairy Industry Restructuring Amendment Act 2020 Section 72(11) repealed 20 February 2018 section 6 Dairy Industry Restructuring Amendment Act 2018 Section 72(12) repealed 20 February 2018 section 6 Dairy Industry Restructuring Amendment Act 2018 New co-op may Heading amended 1 June 2023 section 23 Dairy Industry Restructuring Amendment Act 2020
73: New co-op’s obligations relating to applications by shareholding farmers and discretion to accept new entrants
1: New co-op must accept an application to increase the volume of milk supplied as a shareholding farmer to new co-op that is made by a shareholding farmer in an application period.
2: New co-op may, in its discretion, accept or decline an application made in an application period by a new entrant to supply milk to new co-op.
3: In exercising its discretion to accept or decline an application to become a shareholder, new co-op must have regard to—
a: the effect of its decision on the ongoing viability of the farm to which the application relates, if new co-op had a supply agreement in respect of the farm at any time in the previous season; and
b: the land-use opportunities available to the applicant.
4: New co-op must notify the applicant of its decision on the application within 15 working days of receipt of the application.
5: Sections 136 to 139
a: how an application may be given; and
b: when an application is made. Section 73 replaced 1 June 2023 section 24 Dairy Industry Restructuring Amendment Act 2020
74: Commencement and terms of supply
1: If new co-op accepts an application under section 73
2: Despite subsection (1), new co-op is not required to accept milk if the shareholding farmer fails to satisfy the applicable terms of supply.
3: New co-op may, in its discretion, accept an application made outside an application period from a dairy farmer, including a shareholding farmer, to supply milk as a shareholding farmer. Section 74(1) replaced 1 June 2023 section 25 Dairy Industry Restructuring Amendment Act 2020
75: Application periods
1: New co-op must set an application period that is before the commencement of each season in which new entrants may apply to supply milk, and shareholding farmers may apply to increase the volume of milk supplied, as shareholding farmers.
2: As a minimum, an application period must span the dates 15 December in a year to 28 February in the next year.
76: Publication of application period
1: New co-op must publish details of each application period set by it under section 75
a: in each of the daily newspapers published in Whangarei, Auckland, Hamilton, Rotorua, Hawke’s Bay, New Plymouth, Palmerston North, Wellington, Nelson, Christchurch, Dunedin, and Invercargill; and
b: on new co-op’s website in an electronic form that is publicly accessible.
2: New co-op must publish details of an application period before the application period begins.
3: New co-op must publish the details under subsection (1)﻿(a) as soon as practicable after those details are determined by new co-op.
4: Publication under subsection (1)﻿(b) must be continuous throughout the application period.
77: Price of co-operative share
1: New co-op must set a price of a co-operative share to apply from the beginning of each application period.
2: New co-op may amend the price set under subsection (1) throughout an application period.
3: An amendment to the price set under subsection (1) takes effect on the day after the day it is published under section 80
4: New co-op must set a June price for a co-operative share to apply as at 1 June in each season. Section 77 30 November 2012 section 109A Dairy Industry Restructuring (Trading Among Farmers) Order 2012
77A: Price must be fair value
The price of a co-operative share set by new co-op under section 77(1) (assets − debts) ÷ shares = price where— assets debts shares Section 77A 30 November 2012 section 109A Dairy Industry Restructuring (Trading Among Farmers) Order 2012 Section 77A inserted 27 July 2012 section 6 Dairy Industry Restructuring Amendment Act 2012
77B: When section 77A first applies
Section 77A
a: on and from the date specified by an Order in Council made under section 109G(2)
b: on 31 December 2013 if, before 31 December 2013, no Order in Council has been made under section 109B Section 77B 30 November 2012 section 109A Dairy Industry Restructuring (Trading Among Farmers) Order 2012 Section 77B inserted 27 July 2012 section 6 Dairy Industry Restructuring Amendment Act 2012
78: Peak note price
Section 78 repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
79: Co-operative share standard
1: New co-op must set a co-operative share standard
2: New co-op may not amend the co-operative share standard Section 79 30 November 2012 section 109A Dairy Industry Restructuring (Trading Among Farmers) Order 2012 Section 79 heading amended 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Section 79(1) amended 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Section 79(2) amended 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
80: Publication of prices and standards
1: New co-op must ensure that the following prices and standards are published on or before the first day of each application period:
a: the price of a co-operative share set at the beginning of the application period:
b:
c: the co-operative share standard set at the beginning of the application period.
d:
2: New co-op must ensure that the price of a co-operative share is published each time it is amended.
3: New co-op must ensure that the June price is published as soon as practicable after it is set under section 77(4)
4: New co-op must comply with subsections (1) to (3) by publishing the information—
a: once in each of the daily newspapers published in Whangarei, Auckland, Hamilton, Rotorua, Hawke’s Bay, New Plymouth, Palmerston North, Wellington, Nelson, Christchurch, Dunedin, and Invercargill; and
b: on new co-op’s website in an electronic form that is publicly accessible in the following manner:
i: for information required to be published by subsections (1) and (2), continuously throughout the application period:
ii: for information required to be published by subsection (3), continuously throughout the season to which it applies. Section 80 30 November 2012 section 109A Dairy Industry Restructuring (Trading Among Farmers) Order 2012 Section 80(1)﻿(b) repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Section 80(1)﻿(d) repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
81: Requirements applying to co-operative shares
1: The price of a co-operative share issued to a new entrant or a shareholding farmer in response to an application that new co-op accepts under section 73
a: the June price in the first season for the supply of milk to which the application relates if the new entrant or shareholding farmer elects to pay that price; or
b: the default price if that election is not made.
2: An election under subsection (1)﻿(a) must be made with the application from the new entrant or shareholding farmer.
3: The co-operative share standard that applies to a new entrant or a shareholding farmer who makes an application under section 73 accepts Section 81 30 November 2012 section 109A Dairy Industry Restructuring (Trading Among Farmers) Order 2012 Section 81 heading amended 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Section 81(1) amended 1 June 2023 section 26(1) Dairy Industry Restructuring Amendment Act 2020 Section 81(3) replaced 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Section 81(3) amended 1 June 2023 section 26(2) Dairy Industry Restructuring Amendment Act 2020
82: Requirements applying to co-operative shares
1: The price of a co-operative share issued to a new entrant or a shareholding farmer in response to an application to which section 74(3)
2: The co-operative share standard that applies to a new entrant or a shareholding farmer who makes an application to which section 74(3)
3: Section 82 30 November 2012 section 109A Dairy Industry Restructuring (Trading Among Farmers) Order 2012 Section 82 heading amended 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Section 82(2) replaced 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Section 82(3) repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
83: Restrictions on payments
New co-op must not require payment from a new entrant or a shareholding farmer for accepting milk supply as a shareholding farmer other than payment to purchase co-operative shares Section 83 30 November 2012 section 109A Dairy Industry Restructuring (Trading Among Farmers) Order 2012 Section 83 amended 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
84: Deposit restriction
1: This section regulates deposits payable by new entrants or shareholding farmers who apply under section 73
2: New co-op must not require a new entrant or a shareholding farmer to pay a deposit for the purchase of co-operative shares
a: that exceeds 20% of the total amount payable for the co-operative shares
b: before the earlier of—
i: 15 working days from the notification of acceptance of an application; or
ii: the last day of the application period in which the application is made.
3: The total amount payable for the co-operative shares
a: the published price on the date that the application under section 73
b: the co-operative share standard Section 84 30 November 2012 section 109A Dairy Industry Restructuring (Trading Among Farmers) Order 2012 Section 84(2) amended 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Section 84(2)﻿(a) amended 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Section 84(3) amended 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Section 84(3(b) amended 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
85: Balance of purchase price
1: This section regulates the timing of payment of the balance of the purchase price payable by a new entrant or a shareholding farmer who applies under section 73
2: New co-op must not require a new entrant or a shareholding farmer to pay the balance (or part of it) of the purchase price for the co-operative shares before 1 June in the first season for the supply of milk to which the application relates. Section 85 30 November 2012 section 109A Dairy Industry Restructuring (Trading Among Farmers) Order 2012 Section 85(2) replaced 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Supply of milk deferred if capacity constraint notice issued
86: Publishing capacity constraint notices
1: New co-op may publish a capacity constraint notice for a geographical area specified in the notice if, in new co-op’s reasonable opinion, processing the expected increase in the volume of milk supplied to new co-op from that area in the next season cannot be reasonably managed.
2: A capacity constraint notice—
a: must define clearly the geographical area to which it applies; and
b: must specify the period in a season to which it applies; and
c: must be published not later than the first day of the application period for the season to which the notice applies; and
d: may not apply to more than 1 season.
3: Sections 87 to 93
87: Effect of capacity constraint notice on supply
1: New co-op must defer, until the end of the period specified in the capacity constraint notice, the commencement of the supply of milk that is the subject of applications that new co-op accepts section 73
2: However, a subsequent capacity constraint notice is of no effect in relation to a supply of milk that has previously been deferred under subsection (1).
3: Despite subsection (1), new co-op may accept a supply of milk that is the subject of an application that new co-op accepts section 73 section 86(2)
4: Offers to accept supply of milk under subsection (3) must be made in the same order that applications to supply the milk were received by new co-op. Section 87(1) amended 1 June 2023 section 27(1) Dairy Industry Restructuring Amendment Act 2020 Section 87(3) amended 1 June 2023 section 27(2) Dairy Industry Restructuring Amendment Act 2020
88: Effect of capacity constraint notice on purchase of co-operative shares
1: This section applies to a new entrant or a shareholding farmer who—
a: is in a geographical area to which a capacity constraint notice applies; and
b: applies in an application period.
2: The price of a co-operative share issued to a new entrant or a shareholding farmer to whom this section applies is—
a: the June price in the first season for the supply of milk to which the application relates if the new entrant or shareholding farmer elects to pay that price; or
b: the default price if that election is not made.
3: An election under subsection (2)﻿(a) must be made with the application to which the supply relates.
4: The co-operative share standard that applies to a new entrant or a shareholding farmer to whom this section applies is,—
a: if the new entrant or shareholding farmer makes an election under subsection (2)﻿(a), the co-operative share standard published at the beginning of the application period immediately before the first season for the supply of milk to which the application relates; or
b: if that election is not made, the co-operative share standard published at the beginning of the application period in which the application is made. Section 88 30 November 2012 section 109A Dairy Industry Restructuring (Trading Among Farmers) Order 2012 Section 88 heading amended 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Section 88(4) replaced 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
89: Effect of change in co-operative share standard
1: This section applies if—
a: a new entrant or shareholding farmer to whom section 88
b: the new entrant or shareholding farmer does not make an election under section 88(2)﻿(a)
c: the co-operative share standard
2: If this section applies, the number of co-operative shares
a: the supply of milk to which the application relates commenced in the season immediately following the application period in which the application was made; and
b: co-operative shares
c: all changes to the co-operative share standard Section 89 30 November 2012 section 109A Dairy Industry Restructuring (Trading Among Farmers) Order 2012 Section 89 heading amended 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Section 89(1)﻿(c) amended 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Section 89(2) amended 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Section 89(2)﻿(b) amended 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Section 89(2)﻿(c) amended 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
90: Deposit if default price applies
1: This section applies to a new entrant or a shareholding farmer who is committed under section 88(2)﻿(b)
2: New co-op must not require a new entrant or a shareholding farmer to pay more than 2 deposits for the purchase of co-operative shares
3: A first deposit—
a: must not exceed 10% of the total amount payable for the co-operative shares
b: must not be payable before the earlier of—
i: 15 working days from notification of acceptance of an application; or
ii: the last day of the application period in which the application is made.
4: A second deposit—
a: must not exceed 10% of the total amount payable for the co-operative shares
b: must not be payable earlier than the last day of the application period immediately before the first season for the supply of milk to which the application relates.
5: The total amount payable for the co-operative shares
a: the published price on the date that the application is made; and
b: the co-operative share standard Section 90 30 November 2012 section 109A Dairy Industry Restructuring (Trading Among Farmers) Order 2012 Section 90(2) amended 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Section 90(3)﻿(a) amended 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Section 90(4)﻿(a) amended 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Section 90(5) amended 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Section 90(5)﻿(b) amended 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
91: Balance of purchase price if default price applies
1: This section regulates the timing of payment of the balance of the purchase price by a new entrant or a shareholding farmer who is committed under section 88(2)﻿(b)
2: New co-op must not require a new entrant or a shareholding farmer to pay the balance (or part of it) of the purchase price for the co-operative shares before 1 June in the first season for the supply of milk to which the application relates. Section 91 30 November 2012 section 109A Dairy Industry Restructuring (Trading Among Farmers) Order 2012 Section 91(2) replaced 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
92: Deposit if June price elected
1: This section applies to a new entrant or a shareholding farmer who elects under section 88(2)﻿(a)
2: New co-op must not require a new entrant or a shareholding farmer to pay a deposit for the purchase of co-operative shares
a: that exceeds 20% of the total amount payable for the co-operative shares
b: earlier than the last day of the application period immediately before the first season for the supply of milk to which the application relates.
3: The total amount payable for the co-operative shares referred to in subsection (2) is calculated based on the most recent published price and co-operative share standard on the date that the deposit is payable. Section 92 30 November 2012 section 109A Dairy Industry Restructuring (Trading Among Farmers) Order 2012 Section 92(2) amended 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Section 92(2)﻿(a) inserted 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Section 92(3) replaced 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
93: Balance of purchase price if June price elected
1: This section regulates the timing of payment of the balance of the purchase price by a new entrant or a shareholding farmer who elects under section 88(2)﻿(a)
2: New co-op must not require a new entrant or a shareholding farmer to pay the balance (or part of it) of the purchase price for the co-operative shares before 1 June in the first season for the supply of milk to which the application relates. Section 93 30 November 2012 section 109A Dairy Industry Restructuring (Trading Among Farmers) Order 2012 Section 93(2) replaced 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Exceptions Heading repealed 1 June 2023 section 28 Dairy Industry Restructuring Amendment Act 2020
94: Minimal supply: first exception
Section 94 repealed 1 June 2023 section 28 Dairy Industry Restructuring Amendment Act 2020
95: Transport costs: second exception
Section 95 repealed 1 June 2023 section 28 Dairy Industry Restructuring Amendment Act 2020
96: Order in Council may terminate second exception
Section 96 repealed 1 June 2023 section 28 Dairy Industry Restructuring Amendment Act 2020 New co-op must allow withdrawal
97: Right to withdraw
1: A shareholding farmer who wants to cease or reduce the supply of milk as a shareholding farmer to new co-op may give a notice of withdrawal.
2: The right of a shareholding farmer to cease or reduce the supply of milk as a shareholding farmer is subject to the terms governing the relationship between new co-op and the shareholding farmer.
98: Surrender value of co-operative shares
1: If a shareholding farmer gives a notice of withdrawal to new co-op in an application period, the shareholding farmer must receive—
a: a surrender value for the relevant co-operative shares which is either—
i: the June price immediately following the application period in which the notice of withdrawal is given if the shareholding farmer elects to receive that price, multiplied by the number of shares; or
ii: the default price if that election is not made, multiplied by the number of shares; and
b:
2: An election under subsection (1)﻿(a)﻿(i) must be made with the notice of withdrawal. Section 98 30 November 2012 section 109A Dairy Industry Restructuring (Trading Among Farmers) Order 2012 Section 98 heading amended 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Section 98(1)﻿(b) replaced 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
99: Surrender value of co-operative shares for withdrawal notified outside application period
If new co-op accepts a notice of withdrawal from a shareholding farmer outside an application period, new co-op must pay the shareholding farmer a surrender value for the relevant co-operative shares that is the June price immediately following the date that the notice of withdrawal is given multiplied by the number of shares. Section 99 30 November 2012 section 109A Dairy Industry Restructuring (Trading Among Farmers) Order 2012 Section 99 replaced 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
100: Effect of change in co-operative share standard
1: This section applies if the co-operative share standard
2: If this section applies, the amount that a shareholding farmer must receive under section 98(1) section 99 Section 100 30 November 2012 section 109A Dairy Industry Restructuring (Trading Among Farmers) Order 2012 Section 100 heading amended 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Section 100(1) amended 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Section 100(2) amended 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
101: Payment on withdrawal
1: New co-op must ensure that a shareholding farmer who ceases or reduces supply as a shareholding farmer under section 97
2: New co-op must pay or satisfy the surrender amount payable to a withdrawing shareholding farmer by—
a: payment in cash; or
b: issuing capital notes; or
c: a combination of both cash and capital notes.
3: However, new co-op may satisfy all or part of the surrender amount referred to in subsection (1) by issuing supply redemption rights, if the withdrawing shareholding farmer referred to in subsection (1) requests new co-op to do so.
4: New co-op may satisfy the surrender amount under subsection (2)﻿(b) or (c) by issuing capital notes itself or by procuring a wholly-owned subsidiary to issue them. Section 101 30 November 2012 section 109A Dairy Industry Restructuring (Trading Among Farmers) Order 2012 Section 101(1) amended 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
102: Capital notes
1: New co-op must ensure that the total market value of the capital notes issued to satisfy or partly satisfy a surrender amount is not less than the surrender amount to be satisfied by their issue.
2: The total market value market price
3: New co-op may not issue capital notes under section 101
a: during the month immediately before the capital notes are to be issued, capital notes of the same class as the capital notes to be issued have not been traded on a licensed market; or
b: capital notes of the same class as the capital notes to be issued have not been quoted continuously on the licensed market for 6 months or more. Section 102 30 November 2012 section 109A Dairy Industry Restructuring (Trading Among Farmers) Order 2012 Section 102(3) replaced 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013
103: Repurchase of capital notes by new co-op
1: This section applies if any of the following persons acquires or enters into an arrangement to acquire capital notes during the month immediately before new co-op issues capital notes under section 101
a: new co-op:
b: an associated person of new co-op:
c: a person with whom new co-op or an associated person of new co-op has an arrangement for an acquisition of those capital notes in that period.
2: The person to whom the capital notes are issued may require new co-op, by written notice to new co-op, to acquire some or all of those capital notes at any time within 6 weeks after their date of issue.
3: New co-op must repurchase capital notes under subsection (2)—
a: by payment in cash; and
b: at a price that is not less than 97.5% of the market price at which they were issued to the person; and
c: within 10 working days after receiving the written notice.
4: New co-op must, by notice in writing, no later than the day on which the capital notes are issued under section 101
a: that a person specified in paragraph (a) or paragraph (b) or paragraph (c) of subsection (1) acquired or entered into an arrangement to acquire the capital notes:
b: that the recipient of the notice may require new co-op to acquire some or all of the capital notes issued to the person, in cash:
c: the price at which the person may require new co-op to acquire the capital notes:
d: the date by which the person must make the requirement under this section. Section 103 30 November 2012 section 109A Dairy Industry Restructuring (Trading Among Farmers) Order 2012
104: Use of redeemable preference shares
1: This section applies if—
a: the value of equities surrendered in a season minus the value of equities issued in that season exceeds 5% of the value of equities on issue on 31 May in the previous season; and
b: new co-op’s board considers and certifies that paying cash and issuing capital notes that exceed the 5% threshold described in paragraph (a) would materially and adversely affect new co-op’s ability to implement its business plan.
2: If this section applies, new co-op may satisfy that part of the total value of equities surrendered
a: payment in cash; or
b: issuing capital notes, subject to section 102 section 103
c: issuing redeemable preference shares; or
d: a combination of cash, capital notes, and redeemable preference shares.
3: However, new co-op may satisfy all or part of any surrender amount that falls within the total value of equities covered by subsection (2)
4: In subsection (1)﻿(a), equities Section 104 30 November 2012 section 109A Dairy Industry Restructuring (Trading Among Farmers) Order 2012 Section 104(2) amended 15 December 2005 section 3(1) Dairy Industry Restructuring Amendment Act 2005 Section 104(3) amended 15 December 2005 section 3(2) Dairy Industry Restructuring Amendment Act 2005
105: Provisions concerning redeemable preference shares
New co-op must ensure that redeemable preference shares issued by it under section 104
a: are tradeable; and
b: have total face values that at least equal the surrender amount for which they are issued; and
c: bear a dividend at a rate that is 50% or more of the interest rate on capital notes issued at the same time as, or most recently before, the redeemable preference shares; and
d: entitle the holder to accumulate unpaid dividends; and
e: are convertible, at the holder’s election, at not less than their face values, into co-operative shares that the holder is entitled to hold under new co-op’s constitution at a time specified by new co-op, but not later than 3 years after their issue; and
f: are redeemable, at the holder’s election, for cash or capital notes (as determined by new co-op) at a time specified by new co-op, but not later than 3 years after their issue. Section 105 30 November 2012 section 109A Dairy Industry Restructuring (Trading Among Farmers) Order 2012 Regulation of milk supply
106: No discrimination between suppliers
1: New co-op must ensure that the terms of supply that apply to a new entrant—
a: are the same as the terms that apply to a shareholding farmer in the same circumstances; or
b: differ from the terms that apply to a shareholding farmer in different circumstances only to reflect the different circumstances.
2: New co-op must ensure that the terms and effect of financial products offered or issued in new co-op are the same for new entrants as for shareholding farmers.
3: In this section, financial products section 7
4: New co-op must not treat a shareholding farmer who exercises an entitlement under this subpart any less favourably than a shareholding farmer who does not do so.
5: In its terms of supply, but subject to subsections (1) to (4), new co-op may provide for differential pricing for milk based on any matters specified in the terms of supply, including, but not limited to, matters that relate to animal welfare, food safety, health and safety, employment conditions, the environment, climate change, and sustainability. Section 106(2) replaced 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 106(3) replaced 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 106(5) inserted 1 June 2021 section 29 Dairy Industry Restructuring Amendment Act 2020
107: Regulation of supply contracts for raw milk
1: If new co-op accepts applications from new entrants, it must offer them contracts for milk supply as shareholding farmers for 1 season.
2: New co-op may offer new entrants and shareholding farmers longer-term contracts for milk supply if new co-op complies with subsection (3).
3: New co-op must ensure that, at all times, 33% or a greater percentage of the milk solids produced within a 160 kilometre radius of any point in New Zealand—
a: is supplied under contracts with independent processors; or
b: is supplied under contracts with new co-op that—
i: expire or may be terminated by the supplier at the end of the current season without penalty to the supplier; and
ii: on expiry or termination, end all the supplier’s obligations to supply milk to new co-op.
4: A requirement in a supply contract that the supplier give new co-op up to 3 months’ notice to terminate the contract is not a penalty under subsection (3)﻿(b)﻿(i). Section 107(1) replaced 1 June 2023 section 30 Dairy Industry Restructuring Amendment Act 2020
108: Right to supply independent processors
1: Shareholding farmers are entitled to allocate to independent processors up to 20% of their weekly production throughout the season.
2: Subsection (1) does not entitle shareholding farmers to allocate to independent processors in any month other than October a higher percentage of their weekly production than their average weekly allocation to independent processors in October.
3: A shareholding farmer who exercises the entitlement in subsection (1) must give new co-op 20 working days’ notice of the arrangements for the collection of milk allocated to independent processors.
4: If new co-op requires separate storage, milk supplied to independent processors must be stored in milk vats that are separate from milk vats that store milk for supply to new co-op.
5: This section does not apply to milk with a unique feature that is the subject of a right, privilege, or entitlement that is conferred, or acknowledged as valid, by or under the Patents Act 2013 Section 108(5) amended 13 September 2014 section 249 Patents Act 2013
109: Sale of milk vats
1: A shareholding farmer who withdraws totally from new co-op may require new co-op to sell, and new co-op must sell, a milk vat situated on the withdrawing shareholding farmer’s farm to—
a: the shareholding farmer; or
b: an independent processor, if the independent processor has agreed with the shareholding farmer to buy the milk vat.
2: A shareholding farmer must notify new co-op of a requirement to sell a milk vat under subsection (1) with the relevant notice of withdrawal.
3: A sale of a milk vat by new co-op under this section must be at market value.
4: If new co-op and the buyer of the milk vat do not agree on the market value of the milk vat within 10 working days of receipt by new co-op of the notification under subsection (2), the following provisions apply:
a: new co-op and the buyer will attempt to agree on a valuer within a further 10 working days:
b: if new co-op and the buyer do not agree on a valuer within that time, the New Zealand Property Institute Incorporated must appoint a valuer:
c: a valuer appointed under paragraph (a) or paragraph (b) acts as an expert:
d: the valuer’s decision is binding on new co-op and the buyer, and is not appealable:
e: the costs of valuing a milk vat and appointing a valuer must be shared equally by new co-op and the buyer.
5: New co-op must not require payment for a milk vat sold under this section before the end of the season in which the shareholding farmer gives notice of withdrawal to new co-op. Trading among farmers Heading inserted 27 July 2012 section 7 Dairy Industry Restructuring Amendment Act 2012
109A: Subpart 5 of Part 2 provisions do not apply
The following provisions (the specified subpart 5 provisions) do not apply on and from a date specified by an Order in Council made under section 109B
a: sections 77 to 85
b: sections 88 to 93
c: sections 98 to 105 Section 109A inserted 27 July 2012 section 7 Dairy Industry Restructuring Amendment Act 2012
109B: Order in Council specifying date on and from which specified subpart 5 provisions do not apply
1: The Governor-General may by Order in Council made on the recommendation of the Minister specify a date on and from which the specified subpart 5 provisions do not apply.
2: An order under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 109B inserted 27 July 2012 section 7 Dairy Industry Restructuring Amendment Act 2012 Section 109B(2) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
109C: When Minister must recommend that Order in Council be made
The Minister must recommend that an Order in Council be made under section 109B section 109D Section 109C inserted 27 July 2012 section 7 Dairy Industry Restructuring Amendment Act 2012
109D: Preconditions for making Order in Council
1: The preconditions for making an Order in Council under section 109B
a: co-operative shares are quoted on a licensed market
b: there is established a fund (the new co-op fund) that satisfies the following requirements:
i: the securities issued in respect of the fund (the new co-op fund securities)—
A: are quoted on a licensed market
B: entitle the holders of those securities to receive distributions equal to the distributions they would receive if they were holders of co-operative shares; and
ii: the rules of the fund permit shareholding farmers to exchange co-operative shares for an equal number of new co-op fund securities, and vice versa; and
iii: the manager of the fund has issued, or has entered into binding obligations to issue, new co-op fund securities for consideration of not less than $500 million; and
c: new co-op has given a notice to the chief executive that complies with section 109E
2: The chief executive, subject to being satisfied as to the sufficiency and authenticity of the certificate in question,—
a: must confirm to the Minister that the precondition in subsection (1)﻿(a) has been met if the chief executive has received from the licensed market operator
b: must confirm to the Minister that the precondition in subsection (1)﻿(b) has been met if the chief executive has received from the board of new co-op a certificate verifying the matters set out in subsection (1)﻿(b). Section 109D inserted 27 July 2012 section 7 Dairy Industry Restructuring Amendment Act 2012 Section 109D(1)﻿(a) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 109D(1)﻿(b)﻿(i)﻿(A) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 109D(2)﻿(a) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013
109E: Requirements for notice given by new co-op to chief executive
For the purposes of section 109D(1)﻿(c)
a: be in writing; and
b: request that an Order in Council be made under section 109B
c: specify the date on and from which the specified subpart 5 provisions should not apply. Section 109E inserted 27 July 2012 section 7 Dairy Industry Restructuring Amendment Act 2012
109F: Notice by new co-op to chief executive triggering repeal of section 109A
1: New co-op must without delay give written notice to the chief executive if—
a: co-operative shares are no longer able to be traded on a licensed market
b: new co-op fund securities have ceased to be quoted on a licensed market
c: the new co-op fund has been wound up; or
d: an event occurs that creates a binding obligation to wind up the new co-op fund including, without limitation,—
i: an order by a court, a regulatory body, or any other person; or
ii: a resolution by the holders of new co-op fund securities or by any other person; or
iii: an event specified in the contractual arrangements relating to the new co-op fund.
2: The notice must be accompanied by the evidence relied upon by new co-op for asserting that subsection (1) applies.
3: If new co-op contravenes this section, it commits an offence and is liable on Section 109F inserted 27 July 2012 section 7 Dairy Industry Restructuring Amendment Act 2012 Section 109F(1)﻿(a) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 109F(1)﻿(b) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 109F(3) amended 4 October 2013 regulation 3(1) Criminal Procedure (Consequential Amendments) Regulations 2013
109G: Repeal of section 109A
1: Section 109A
2: The Governor-General may by Order in Council made on the recommendation of the Minister specify a date on and from which section 109A
3: The date specified in the order must be the later of 9 months after the order is made and the beginning of the next application period.
4: An order under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 109G inserted 27 July 2012 section 7 Dairy Industry Restructuring Amendment Act 2012 Section 109G(4) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
109H: Revocation of order made under section 109G
1: This section applies to the revocation, before the specified date, of an order made under section 109G
2: The Governor-General may, before the specified date, by Order in Council revoke an order made under section 109G
a: an order could have been made under section 109B
b: for the purpose of paragraph (a), the requirements of sections 109C 109D
3: When an order is made under subsection (2), the fund that for the purposes of making the order satisfied the requirements of section 109D(1)﻿(b)
4: In this section, specified date section 109G
5: An order under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 109H inserted 27 July 2012 section 7 Dairy Industry Restructuring Amendment Act 2012 Section 109H(5) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
109I: Conditions of making order under section 109G(2)
1: An Order in Council made under section 109G(2)
2: The Minister must recommend that the order be made if the Minister is satisfied, on written confirmation from the chief executive, that—
a: co-operative shares are no longer able to be traded on a licensed market
b: new co-op fund securities have ceased to be quoted on a licensed market
c: the new co-op fund has been wound up; or
d: an event has occurred that creates a binding obligation to wind up the new co-op fund including, without limitation,—
i: an order by a court, a regulatory body, or any other person; or
ii: a resolution by the holders of new co-op fund securities or by any other person; or
iii: an event specified in the contractual arrangements relating to the new co-op fund.
3: The chief executive must confirm that subsection (2)﻿(a), (b), (c), or (d) applies if the chief executive—
a: has received a notice from new co-op under section 109F
b: is satisfied on reasonable grounds, after making due inquiry, that subsection (2)﻿(a), (b), (c), or (d) applies; or
c: has received a response from new co-op under section 109J(3)﻿(b)
d: has not obtained a response from new co-op, within 5 working days after service, to a notice given under section 109J Section 109I inserted 27 July 2012 section 7 Dairy Industry Restructuring Amendment Act 2012 Section 109I(2)﻿(a) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 109I(2)﻿(b) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013
109J: Chief executive may give new co-op notice requiring verification
1: At any time while the specified subpart 5 provisions do not apply, the chief executive may give new co-op a notice that complies with subsection (2) requiring new co-op to verify in writing, with documentary proof, that—
a: co-operative shares continue to be quoted on a licensed market
b: new co-op fund securities continue to be quoted on a licensed market
c: the new co-op fund has not been wound up:
d: no event has occurred that creates a binding obligation to wind up the new co-op fund.
2: The notice must be—
a: in writing; and
b: dated; and
c: served on new co-op at its address for service.
3: New co-op must respond to the notice not later than 5 working days after service of the notice by—
a: verifying the matter in question; or
b: if it is unable to verify it, stating that it is unable to do so.
4: If new co-op contravenes subsection (3), it commits an offence and is liable on Section 109J inserted 27 July 2012 section 7 Dairy Industry Restructuring Amendment Act 2012 Section 109J(1)﻿(a) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 109J(1)﻿(b) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 109J(4) amended 4 October 2013 regulation 3(1) Criminal Procedure (Consequential Amendments) Regulations 2013
109K: When sections 109L to 109N apply
Sections 109L to 109N Section 109K inserted 27 July 2012 section 7 Dairy Industry Restructuring Amendment Act 2012
109L: New co-op's obligations in relation to market in co-operative shares and to new co-op fund
1: New co-op must ensure that there are 1 or more market makers in co-operative shares who—
a: are designated a market maker under the market rules of the licensed market on which the co-operative shares are quoted; and
b: operate during the periods of operation of the licensed market on which the co-operative shares are quoted.
2: New co-op must ensure that the holders of new co-op fund securities have the following rights:
a: subject to section 161A(2)
b: the right to appoint and remove a majority of the board of the manager of the fund; and
c: the right to vote on resolutions proposed at general meetings of the fund; and
d: the right to pass a resolution for the liquidation of the fund.
3: In this section, market rules section 6(1) Section 109L inserted 27 July 2012 section 7 Dairy Industry Restructuring Amendment Act 2012 Section 109L(1) replaced 1 June 2023 section 5(1) Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022 Section 109L(3) inserted 1 June 2023 section 5(2) Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022
109LA: New co-op must commission financial markets research and analysis about its performance
1: New co-op must commission, on an ongoing basis, financial markets research and analysis in respect of new co-op’s performance.
2: New co-op must ensure that the commissioned financial markets research and analysis—
a: is free from bias and independent of new co-op; and
b: provides credible analysis.
3: New co-op must make the commissioned financial markets research and analysis publicly accessible. Section 109LA inserted 1 June 2023 section 6 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022
109LB: New co-op must keep list of financial markets research and analysis about its performance
1: New co-op must keep and maintain a list of financial markets research and analysis relating to new co-op’s performance.
2: New co-op must ensure that the list—
a: reflects a diverse range of financial markets research and analysis of new co-op’s performance (to the extent that the research and analysis is readily available); and
b: is regularly updated to maintain currency.
3: New co-op must make the list publicly accessible.
4: New co-op must ensure that the following are complied with in relation to each item of financial markets research and analysis on the list:
a: the item is a credible analysis of new co-op’s performance; and
b: the item is accompanied by information that describes the extent, if any, of new co-op’s involvement in the preparation of the item; and
c: the item is available to be accessed; and
d: the item is accompanied by information about how to access the item or a means of accessing the item.
5: New co-op may include in the list additional information that is not an item of analysis. Any additional information must be clearly identified in the list as additional information. Section 109LB inserted 1 June 2023 section 6 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022
109M: Restrictions on new co-op
1: Subsection (2) applies to conduct by new co-op that restricts, prevents, or deters—
a: trading in co-operative shares; or
b: participation by shareholding farmers, new entrants, and market makers in co-operative shares in trading in co-operative shares or new co-op fund securities; or
c: the ability of shareholding farmers and new entrants to exchange co-operative shares for new co-op fund securities, and vice versa; or
d: the liquidity of the market for co-operative shares or for new co-op fund securities.
1A: Despite subsection (1)﻿(c) and (d), subsection (2) does not apply to conduct by new co-op that—
a: restricts the exchange of co-operative shares for new co-op fund securities by setting a limit on the number of new co-op shares that may be exchanged for new co-op fund securities; or
b: prevents the exchange of co-operative shares for new co-op fund securities when a limit referred to in paragraph (a) has been reached.
2: New co-op must not engage in any conduct to which this subsection applies for the purpose of restricting, preventing, or deterring—
a: a new entrant from becoming a shareholding farmer pursuant to an application under section 73(2)
b: a shareholding farmer from increasing the volume of milk supplied to new co-op pursuant to an application under section 73(1)
c: a shareholder farmer from ceasing or reducing the supply of milk to new co-op pursuant to a notice of withdrawal under section 97(1) Section 109M inserted 27 July 2012 section 7 Dairy Industry Restructuring Amendment Act 2012 Section 109M(1A) inserted 1 June 2023 section 7(1) Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022 Section 109M(2)﻿(a) amended 1 June 2023 section 7(2) Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022 Section 109M(2)﻿(b) amended 1 June 2023 section 7(3) Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022
109N: Expiry of sections 109A to 109M
Sections 109A to 109M
a: if an Order in Council has been made under section 109G(2)
b: if no Order in Council has been made under section 109B Section 109N inserted 27 July 2012 section 7 Dairy Industry Restructuring Amendment Act 2012 Transitional provisions for Tatua and Westland Heading repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
110: Purpose
Section 110 repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
111: Application
Section 111 repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
112: New co-op must supply information
Section 112 repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
113: New co-op must purchase produce if required
Section 113 repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
114: Terms of purchase of exiting company’s produce
Section 114 repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Regulatory powers
115: Regulations relating to
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations that—
a: require new co-op to supply in New Zealand 1 or more of the following goods or services:
i: components of milk:
ii: products derived from milk:
iii: transporting, processing, and packaging milk, components of milk, and products derived from milk; and
b: do 1 or more of the following for 1 or more of the goods or services specified in paragraph (a):
i: specify a price or prices for it or them:
ii: specify a method or methods for determining a price or prices for it or them:
iii: specify the terms of supply for it or them; and
ba: require new co-op to supply raw milk in New Zealand; and
bb: do 1 or more of the following for some or all of the raw milk:
i: specify a price or prices for it:
ii: specify a method or methods, which may include an auction or auctions or any other method at all, for determining a price or prices for it:
iii: specify a method or methods, which may include an auction or auctions or any other method at all, for allocating it:
iv: specify the terms of supply for it; and
bc: do some or all of the following for auctions of raw milk:
i: specify what is auctioned:
ii: specify how the auctions are held:
iii: specify a date and time or a range of dates and times on which the auctions must be held:
iv: specify who are eligible bidders at the auctions:
v: allow the Minister to set a reserve or reserves for the auctions by referring to material not set out in the regulations or by any other means:
vi: require the chief executive to hold the auctions or allow the chief executive to arrange for another person to hold the auctions on the chief executive's behalf:
vii: require the chief executive to maintain a system or systems for holding the auctions or allow the chief executive to arrange for another person to maintain a system or systems for holding the auctions on the chief executive's behalf:
viii: provide for the maintenance of the system or systems for holding the auctions:
ix: allow the chief executive to require new co-op to reimburse the chief executive for the annual operating costs of the auctions:
x: allow some or all of the details about matters referred to in subparagraphs (i) to (ix) to be prescribed by the Minister in 1 or more notices
c: limit, subject to subsection (2), the amount of goods or services described in paragraph (a) or (ba)
i: different independent processors; and
ii: different geographical areas; and
d: allow new co-op to require independent processors to give new co-op advance notice of their requirements for the goods or services to which regulations under paragraph (a) or (ba)
e: empower the Commerce Commission to fix a discount rate in calculating the price of goods or services regulated under this section; and
f: require new co-op and independent processors to provide—
i: periodic returns of milk solids collected from dairy farmers:
ia: periodic returns of milk solids bought from, or sold to, other persons:
ii: periodic forecasts of milk solids expected to be collected from dairy farmers; and
fa: prescribe entities and persons who may certify raw milk as organic milk; and
fb: prescribe any matter that is authorised to be prescribed for the purposes of the definitions of raw milk and winter milk in section 5(1)
g: authorise new co-op to perform obligations imposed by the regulations through an associated person.
2: Regulations made under subsection (1) must not require new co-op to supply a total amount of goods or services that exceeds, in the Minister’s opinion, 5% of the amount of those goods or services produced by, or supplied to, new co-op, as the case may be.
2A: For the purpose of any regulations made under subsection (1), unless the context of the regulations otherwise requires, a body is an interconnected body of an independent processor if—
a: both the independent processor and the body are bodies corporate and would be treated as interconnected bodies corporate under section 2(7)
b: one or both of the independent processor and the body is a partnership (including a limited partnership) or an unincorporated joint venture and would be treated as interconnected bodies corporate under section 2(7)
3: A regulation under this section is not invalid because it leaves a matter or thing to be decided by a person.
4: Regulations under this section are secondary legislation ( see Part 3
5: If the regulations allow the prescribing of matters by notice under subsection (1)﻿(bc)﻿(x) or empower the fixing of a discount rate under subsection (1)﻿(e),—
a: the notice prescribing the matters or the instrument fixing the rate is secondary legislation ( see Part 3
b: the regulations must contain a statement to that effect. The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation referred to in subsection (4). Legislation Act 2019 requirements for secondary legislation referred to in subsection (4) Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation referred to in subsection (5)﻿(a). Legislation Act 2019 requirements for secondary legislation referred to in subsection (5)﻿(a) Publication See the relevant publication, presentation, and disallowance table in the secondary legislation referred to in subsection (4) LA19 ss 73 74 cl 14 Presentation The Minister must present it to the House of Representatives, unless a transitional exemption applies under Schedule 1 LA19 s 114 cl 32 Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 115 heading amended 27 July 2012 section 8(1) Dairy Industry Restructuring Amendment Act 2012 Section 115(1)﻿(a) substituted 9 April 2010 section 4(1) Dairy Industry Restructuring (Raw Milk Pricing Methods) Act 2010 Section 115(1)﻿(b) substituted 9 April 2010 section 4(1) Dairy Industry Restructuring (Raw Milk Pricing Methods) Act 2010 Section 115(1)﻿(ba) inserted 9 April 2010 section 4(1) Dairy Industry Restructuring (Raw Milk Pricing Methods) Act 2010 Section 115(1)﻿(bb) inserted 9 April 2010 section 4(1) Dairy Industry Restructuring (Raw Milk Pricing Methods) Act 2010 Section 115(1)﻿(bc) inserted 9 April 2010 section 4(1) Dairy Industry Restructuring (Raw Milk Pricing Methods) Act 2010 Section 115(1)﻿(bc)﻿(x) amended 28 October 2021 section 3 Secondary Legislation Act 2021 Section 115(1)﻿(c) amended 9 April 2010 section 4(2) Dairy Industry Restructuring (Raw Milk Pricing Methods) Act 2010 Section 115(1)﻿(d) amended 9 April 2010 section 4(3) Dairy Industry Restructuring (Raw Milk Pricing Methods) Act 2010 Section 115(1)﻿(f) replaced 27 July 2012 section 8(2) Dairy Industry Restructuring Amendment Act 2012 Section 115(1)﻿(f)﻿(ia) inserted 1 June 2021 section 31(1) Dairy Industry Restructuring Amendment Act 2020 Section 115(1)﻿(fa) inserted 1 June 2021 section 31(2) Dairy Industry Restructuring Amendment Act 2020 Section 115(1)﻿(fb) inserted 1 June 2021 section 31(2) Dairy Industry Restructuring Amendment Act 2020 Section 115(2A) inserted 27 July 2012 section 8(3) Dairy Industry Restructuring Amendment Act 2012 Section 115(4) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Section 115(5) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
116: Obligations to publish information
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations that—
a: impose obligations on new co-op to publish information about its business, including the following information:
i: the price of a co-operative share:
ii:
iii:
iv: the pay-outs to shareholding farmers for the supply of milk to new co-op:
v: forecasts of the price of dairy goods and services, including components of those prices and information used to calculate those prices:
vi: prices for dairy goods or services, including components of those prices and information and methodologies used to calculate those prices:
vii: the total volume of dairy goods or services that new co-op has contracted to supply to independent processors under regulations made under section 115
viii: the market price of capital notes:
ix: average premiums payable for winter milk in particular areas; and
b: prescribe when and how the information must be published; and
c: prescribe the form of statutory declaration and who must provide it under section 117(4)
2: Nothing in Part 3
3: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 116(1)﻿(a)﻿(ii) repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Section 116(1)﻿(a)﻿(iii) repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Section 116(2) replaced 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 116(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
117: Information to be supplied to Commission
1: New co-op must send a copy of the information that it is required to publish by regulations under section 116
2: The Commission may request (in writing) information, statements, or reports from new co-op to monitor new co-op’s compliance with regulations made under section 116
3: New co-op must comply with a request under subsection (2) within 20 working days of receiving the request or within a longer period allowed by the Commission.
4: Information, statements, or reports supplied to the Commission under this section must be verified by statutory declaration in the form, and by the persons, prescribed by regulations made under section 116(1)﻿(c)
118: Offences
1: Every person commits an offence against this section who—
aa: fails, without reasonable excuse, to comply with a requirement to provide periodic returns or periodic forecasts specified in regulations made under section 115
a: fails, without reasonable excuse, to comply with any information disclosure requirements prescribed in regulations made under section 116
b: fails, without reasonable excuse, to comply with the requirements of section 117(1) and (3)
c: fails, without reasonable excuse, to comply with the requirements of section 109LA
c:
d: fails, without reasonable excuse, to comply with the requirements of section 109LB
e: fails, without reasonable excuse, to comply with the requirements of section 135A
f: fails, without reasonable excuse, to comply with the requirements of a notice given under section 150ZF(2)﻿(a), (b), or (c)
2: Every person commits an offence against this section who makes a false declaration under section 117(4)
3: Every person who commits an offence against subsection (1) is liable on
4: Every person who commits an offence against subsection (2) is liable on Section 118(1)﻿(aa) inserted 27 July 2012 section 9 Dairy Industry Restructuring Amendment Act 2012 Section 118(1)﻿(b) amended 20 February 2018 section 7(1) Dairy Industry Restructuring Amendment Act 2018 Section 118(1)﻿(c) inserted 1 June 2023 section 8 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022 Section 118(1)﻿(c) repealed 20 February 2018 section 7(2) Dairy Industry Restructuring Amendment Act 2018 Section 118(1)﻿(d) inserted 1 June 2023 section 8 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022 Section 118(1)﻿(e) inserted 1 June 2023 section 8 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022 Section 118(1)﻿(f) inserted 1 June 2023 section 8 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022 Section 118(3) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 118(4) amended 1 July 2013 section 413 Criminal Procedure Act 2011
119: Regulations prescribing fees
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations prescribing fees for applications to the Commission under section 120
2: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 119(2) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
119A: Incorporation by reference
Regulations made under this Act may incorporate material by reference under Schedule 5E Section 119A inserted 9 April 2010 section 5 Dairy Industry Restructuring (Raw Milk Pricing Methods) Act 2010 Determination by Commission
120: Determination to resolve conflict
1: A person may apply to the Commission for a determination if the person has a dispute with new co-op about the application of this subpart (except section 77A section 115
2: Despite subsection (1), the Commission may reject an application, and return it to the applicant (and do no more in relation to the application), if, in the Commission’s opinion,—
a: the dispute is not genuine or is vexatious or frivolous; or
b: the applicant does not have a direct financial interest in the matter to which the application relates; or
c: the applicant has not made a reasonable attempt to settle the matter with new co-op; or
d: the Commission has made a determination, or is currently considering an application, on the same matter.
3: The Commission may consider related applications together.
4: An application under subsection (1) must be made within 3 years after the matter giving rise to the dispute arose. Section 120(1) amended 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
121: Requirements for application
An application made under section 120(1)
a: be in writing; and
b: be given in the prescribed manner, if any; and
c: contain the prescribed information, if any; and
d: be accompanied by the prescribed fee, if any.
122: Commission must notify parties
On receiving an application made correctly under section 121
a: must notify new co-op in writing that the application has been made; and
b: must provide a copy of the application to new co-op; and
c: must request new co-op to comment on the matter in writing to the Commission by a date specified by the Commission, which must be not later than 10 working days after receipt of the notice from the Commission; and
d: may require new co-op to provide information about the matter to the Commission.
123: Commission must decide whether to make determination
The Commission must, within 10 working days after the date by which new co-op may comment on the application,—
a: decide whether or not to determine the matter:
b: give written notice of its decision to the applicant and new co-op.
124: When determination must be completed
The Commission must complete a determination as soon as practicable after it has decided to make a determination.
125: Requirements for determinations
In deciding whether to make a determination under section 123(a) section 124
a: consider the purpose in section 70
b: consider whether the decision or determination promotes the principles specified in section 71
126: Matters included in determination
1: A determination by the Commission must—
a: state the Commission’s decision on the matters in dispute; and
b: state clearly whether a breach of this subpart or any regulations has occurred; and
c: include the reasons for the determination; and
d: include the terms and conditions on which the determination is made; and
e: specify the actions that a party to the determination must do or refrain from doing, which may include (without limitation) payment of compensation by one party to the other.
2: The Commission may specify an expiry date for the determination.
127: Procedure for determinations
For a determination made under this subpart, the Commission—
a: is not bound by technicalities, legal forms, or rules of evidence:
b: may inform itself of any matter relevant to the determination in any way that it thinks appropriate.
128: Applicant may withdraw
1: An applicant for a determination may, at any time, withdraw the application by written notice to the Commission.
2: If the Commission receives a notice of withdrawal under subsection (1),—
a: it must notify the parties to the determination, or to an application for a determination, of the withdrawal and do no more in relation to the application; and
b: it may apportion costs under section 129
129: Parties’ costs
1: The parties to a determination or application for a determination bear their own costs.
2: However, the Commission may, by written direction to a party to a determination or to an application for a determination, require that party to meet some or all of the other party’s costs in respect of the determination or application if, in the opinion of the Commission, the party has contributed unreasonably to costs or delays.
3: A party in whose favour a direction under subsection (2) is given may enforce that direction by filing it in the prescribed form (if any) in the Wellington Registry of the High Court.
4: A direction that is filed in the High Court under subsection (3) is enforceable as a judgment of the High Court in its civil jurisdiction.
130: Clarification of determination
The Commission may amend a determination to clarify it if—
a: the Commission, on its own initiative or on the application of a party to the determination, considers that a determination requires clarification; and
b: the clarification is either not material to any person affected by the determination or is agreed to by the parties to the determination; and
c: no appeal of the determination is pending.
131: Reconsideration of determination
1: The Commission may, on the application of a party to a determination, revoke or amend the determination or revoke the determination and make another determination in substitution for it if the Commission considers that—
a: there has been a material change of circumstances since the date on which the determination was made or last reconsidered; or
b: the determination requires clarification in a material respect and is not agreed to by all persons affected by the determination; or
c: the determination was made on the basis of information that was materially false or misleading.
2: Despite subsection (1), a determination may not be reconsidered if an appeal of the determination is pending.
3: In reconsidering a determination, the Commission must follow the same process that was followed for the initial determination.
4: To avoid doubt, a determination continues to have effect and is enforceable until its reconsideration under this section is complete.
132: Appeals from certain determinations
1: A party to a determination made under this subpart may appeal to the High Court against—
a: the determination, including an amended or reconsidered determination, on a question of law:
b: a decision of the Commission not to clarify a determination under section 130
c: a decision of the Commission not to reconsider a determination under section 131
2: Despite subsection (1), no party may appeal against a determination made under this subpart—
a: while a clarification of the determination under section 130
b: while a reconsideration of the determination under section 131
3: If appeal or judicial review proceedings are commenced about a determination, the determination continues to have effect and is enforceable as if the proceedings had not been commenced until the proceedings are finally disposed of.
4: The decision of the High Court on appeal from a determination is final unless leave to appeal to the Court of Appeal is given by the High Court or, if leave is refused by the High Court, by the Court of Appeal.
5: Section 132(5) repealed 1 January 2004 section 48(2) Supreme Court Act 2003
133: Enforcing Commission determinations
1: A party to a determination made under this subpart, or the Commission, may enforce the determination by filing it in the prescribed form (if any) in the Wellington Registry of the High Court.
2: A determination filed in the High Court under subsection (1) is enforceable as a judgment of the High Court in its civil jurisdiction.
3: A party who has filed a determination in the High Court under subsection (1) must file in the High Court in the prescribed form (if any) any clarification or reconsideration of the determination. Levy
134: New co-op must pay levy
1: New co-op must pay, for each financial year
2: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations—
a: specifying the amount of the levy, or method of calculating or ascertaining the amount of the levy, on the basis that the costs estimated under subsection (4) should be met fully out of the levy:
b: including in the levy, or providing for the inclusion in the levy of, any shortfall in recovering those actual costs (including, without limitation, providing for a reconciliation of the levy against the levy that would have been payable had the calculation used the actual costs and invoicing new co-op for the amount under-recovered from it as part of the levy):
c: refunding, or providing for refunds of, any over-recovery of those actual costs:
d: specifying 1 or more financial years or part financial years to which the levy applies:
e: providing for the levy amount to be specified in the Gazette
f: providing for the payment and collection of the levy:
g: requiring payment of the levy for a financial year or part financial year, even though the regulations may be made after that financial year has commenced:
h: exempting or providing for exemptions from, and providing for waivers of, the whole or any part of the levy.
3: The regulations may provide for the levy to apply, and be calculated in respect of, 1 or more financial years (with the levy being collected for each of those years
4: In calculating estimated costs for the purposes of subsection (2)﻿(a), the Commission—
a: may include—
i: the cost of making determinations and directions
ii: the cost of enforcing this subpart or subpart 5A
iii: the cost of enforcing determinations and directions
iv: over-recoveries or under-recoveries of actual costs; and
v: the cost of conducting reviews under subpart 5A
b: must exclude—
i: the cost of taking other proceedings in the High Court, or defending proceedings against the Commission in the High Court; and
ii: the cost of investigations that are not related to complaints or determinations made under this subpart , or directions made under subpart 5A
iii: the cost of providing input for the reports under section 147 subparts 5 5A
c: must calculate and deduct the total amount of application fees likely to be received.
5: The Minister must consult with new co-op and the Commission before making a recommendation under subsection (2).
6: The amount of unpaid levy is recoverable in a court of competent jurisdiction as a debt due to the Crown.
7: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 134 replaced 1 June 2021 section 32 Dairy Industry Restructuring Amendment Act 2020 Section 134(1) amended 1 January 2023 section 9(1) Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022 Section 134(3) amended 1 January 2023 section 9(2) Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022 Section 134(4)﻿(a)﻿(i) amended 1 June 2023 section 9(3) Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022 Section 134(4)﻿(a)﻿(iii) amended 1 June 2023 section 9(4) Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022 Section 134(4)﻿(b)﻿(ii) amended 1 June 2023 section 9(5) Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022 Section 134(7) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 General
135: Constitution of new co-op
This subpart applies despite anything in the constitution of new co-op or the Companies Act 1993
135A: Dividends and retentions policy
1: New co-op must keep and maintain a dividends and retentions policy.
2: New co-op must make the policy publicly accessible. Section 135A inserted 1 June 2023 section 10 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022
136: Making and giving applications or notices
1: Applications or notices made or given under sections 73 to 109
2: Sections 137 to 139
137: Post
1: Applications or notices sent by post are made or given at the time when the letter is posted.
2: It is sufficient to prove that the letter was properly addressed and posted.
138: Facsimile
1: Applications or notices sent by facsimile are made or given if the facsimile machine of the sender generated a record of the successful transmission to the facsimile machine of the recipient.
2: The date and time of that record is the date and time that the application or notice is made or given.
139: Electronic
An application or notice sent electronically is made or given at the time that the electronic communication enters the information system of the addressee. Enforcement Heading repealed 1 June 2023 section 11 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022
140: Jurisdiction of High Court
Section 140 repealed 1 June 2023 section 11 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022
141: Pecuniary penalties
Section 141 repealed 1 June 2023 section 11 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022
142: Injunctions
Section 142 repealed 1 June 2023 section 11 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022
143: Actions for damages
Section 143 repealed 1 June 2023 section 11 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022
144: Miscellaneous
Section 144 repealed 1 June 2023 section 11 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022
145: Application of Commerce Act 1986 provisions
Section 145 repealed 1 June 2023 section 11 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022
146: Additional proceedings
Section 146 repealed 1 June 2023 section 11 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022 Regular reports on operation of subparts 5 and 5A Heading inserted 1 June 2021 section 34 Dairy Industry Restructuring Amendment Act 2020
147: Minister must require regular reports
1: The Minister must require regular reports from the chief executive on whether this subpart and subpart 5A
2: The Minister must require the first report no earlier than 4 years after the commencement of the Dairy Industry Restructuring Amendment Act 2020
3: The Minister must require any subsequent report no earlier than 4 years after presentation of the previous report to the House of Representatives, and present the report to the House of Representatives no later than 6 years after presentation of the previous report to the House of Representatives, unless subsection (4) or (5) applies.
4: If a Bill is introduced into the House of Representatives to amend this Act in the 6 years before the Minister is required to present a report under subsection (3) and the Bill is passed, the Minister must instead—
a: require a report no earlier than 4 years after the commencement of that enactment or (if different provisions come into force on different dates) the earliest date on which any provision of the enactment commences (the commencement date
b: present the report to the House no later than 6 years after the commencement date.
5: If the Bill is withdrawn, lapses with the dissolution or expiry of Parliament, or is defeated, the Minister must—
a: request the report no earlier than 4 years after the withdrawal, lapse, or defeat of the Bill; and
b: present the report to the House of Representatives no later than 6 years after the commencement date. Section 147 inserted 1 June 2021 section 34 Dairy Industry Restructuring Amendment Act 2020
148: Commission input
1: The Minister may, in consultation with the Minister responsible for the Commerce Act 1986 section 147
2: In providing any input to the report as required by the Minister, the Commission may exercise the powers specified in section 150ZF Section 148 inserted 1 June 2021 section 34 Dairy Industry Restructuring Amendment Act 2020 Section 148(2) amended 1 June 2023 section 12 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022
149: Terms of reference for report to be published
1: The terms of reference for a report under section 147 subparts 5 5A
2: The Minister must publish the terms of reference on the Ministry’s Internet site. Section 149 inserted 1 June 2021 section 34 Dairy Industry Restructuring Amendment Act 2020
150: Limits on effect of report and response
1: The Crown is not bound by a report under section 147
2: Sections 147 to 149
a: create any rights or protections in relation to any person or group of persons; or
b: confer any rights or protections on any person or group of persons. Section 150 inserted 1 June 2021 section 34 Dairy Industry Restructuring Amendment Act 2020 Expiry of this subpart and subpart 5A Heading repealed 20 February 2018 section 4 Dairy Industry Restructuring Amendment Act 2018
147: Minister to certify that market share thresholds met
Section 147 repealed 20 February 2018 section 4 Dairy Industry Restructuring Amendment Act 2018
148: Subparts 5 and 5A cease Section 148 repealed 20 February 2018 section 4 Dairy Industry Restructuring Amendment Act 2018
148A: Report required if not requested before 1 June 2015
Section 148A repealed 20 February 2018 section 4 Dairy Industry Restructuring Amendment Act 2018
148B: Procedure where market share threshold is met after report requested under section 148A
Section 148B repealed 20 February 2018 section 4 Dairy Industry Restructuring Amendment Act 2018
149: Subparts 5 and 5A expire Section 149 repealed 20 February 2018 section 4 Dairy Industry Restructuring Amendment Act 2018
150: Transition
Section 150 repealed 20 February 2018 section 4 Dairy Industry Restructuring Amendment Act 2018
5A: Base milk price
Subpart 5A inserted 27 July 2012 section 14 Dairy Industry Restructuring Amendment Act 2012 Purpose of subpart Heading inserted 27 July 2012 section 14 Dairy Industry Restructuring Amendment Act 2012
150A: Purpose of this subpart
1: The purpose of this subpart is to promote the setting of a base milk price that provides an incentive to new co-op to operate efficiently while providing for contestability in the market for the purchase of milk from farmers.
2: For the purposes of this subpart, the setting of a base milk price provides for contestability in the market for the purchase of milk from farmers if any notional costs, revenues, or other assumptions taken into account in calculating the base milk price are practically feasible for an efficient processor. Section 150A inserted 27 July 2012 section 14 Dairy Industry Restructuring Amendment Act 2012
150B: Certain assumptions do not detract from purpose of subpart
1: It does not detract from the achievement of the purpose set out in section 150A
a: that new co-op operates a national network of facilities for the collection and processing of milk:
b: that the size of new co-op's assumed units of processing capacity approximates to the average size of new co-op's actual units of processing capacity:
c: that gains and losses experienced by new co-op resulting from foreign currency fluctuations, including from new co-op's foreign currency risk-management strategies, are incorporated in the base milk price:
d: that all milk collected by new co-op is processed into commodities at yields that are practically feasible.
2: Subsection (1) does not extend to the way in which new co-op uses an assumption in setting the base milk price. Section 150B inserted 27 July 2012 section 14 Dairy Industry Restructuring Amendment Act 2012 Section 150B(2) inserted 1 January 2023 section 14 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022
150C: Setting of base milk price in way that is consistent with certain principles
1: For the achievement of the purpose set out in section 150A
a: revenue taken into account in calculating the base milk price is determined from prices of a portfolio of commodities at the times that those commodities are contracted to be sold by new co-op:
b: costs taken into account in calculating the base milk price include costs (including capital costs and a return on capital) of—
i: collecting milk; and
ii: processing milk into the same portfolio of commodities as the portfolio adopted for the purposes of paragraph (a); and
iii: selling those commodities:
c: new co-op collects all milk that it processes from the farms on which the milk is produced.
2: For the purposes of subsection (1)﻿(a) and (b)﻿(ii), the portfolio of commodities must be determined having regard to the following:
a: in respect of the commodities included in the portfolio,—
i: the commodities that are likely to be the most profitable over a period not exceeding 5 years from the time when the portfolio is determined; and
ii: the need for commodities included in the portfolio to utilise all components of milk; and
b: in respect of the relative proportions of the commodities included in the portfolio, the quantities of commodities likely to be produced by new co-op based on—
i: the mix of commodities that are likely to be most profitable; and
ii: new co-op's physical manufacturing capacity for the production of those commodities; and
iii: the need to utilise all components of the milk processed.
3: For the purposes of subsection (1)﻿(b), any estimate of the return on capital must be made applying the capital asset pricing model.
4: For the purposes of subsection (3), the asset beta used in the application of the capital asset pricing model must be consistent with the estimated asset betas of other processors of dairy and other food products that are—
a: traded in significant quantities in globally contested markets; and
b: characterised by uniform technical specifications.
5: In subsection (4), asset beta Section 150C inserted 27 July 2012 section 14 Dairy Industry Restructuring Amendment Act 2012 Section 150C(3) inserted 1 June 2021 section 35 Dairy Industry Restructuring Amendment Act 2020 Section 150C(4) inserted 1 June 2021 section 35 Dairy Industry Restructuring Amendment Act 2020 Section 150C(5) inserted 1 June 2021 section 35 Dairy Industry Restructuring Amendment Act 2020 Farm gate milk price Heading inserted 1 June 2021 section 36 Dairy Industry Restructuring Amendment Act 2020
150CA: Provisions relating to farm gate milk price
1: For the purposes of this subpart, new co-op may pay a farm gate milk price that differs from the base milk price.
2: New co-op must publish as soon as practicable after it determines the farm gate milk price for any season, on new co-op’s website in an electronic form that is publicly accessible, a notice that—
a: states both the farm gate milk price and the base milk price for that season; and
b: explains why the farm gate milk price differs or does not differ from the base milk price (as the case may be). Section 150CA inserted 1 June 2021 section 36 Dairy Industry Restructuring Amendment Act 2020 Milk Price Panel Heading inserted 27 July 2012 section 14 Dairy Industry Restructuring Amendment Act 2012
150D: Milk Price Panel
1: New co-op must establish and maintain a committee known as the Milk Price Panel (the panel
2: New co-op must set the terms of reference for the panel, which must include the functions set out in subsections (3) and (4), and the panel must act in accordance with those terms of reference.
3: The panel must, for each season,—
a: supervise the calculation of the base milk price carried out by the person or persons engaged under section 150EA
b: advise new co-op as necessary on the application of the milk price manual; and
c: recommend to new co-op the base milk price.
4: The panel may, as it considers necessary or desirable, make recommendations to new co-op in respect of the milk price manual, including a recommendation that it should be amended and a recommendation that a proposed amendment should not be made.
5: New co-op must make the terms of reference of the panel publicly available, including any amendments to those terms of reference.
6: If new co-op contravenes subsection (1), (2), or (5), it commits an offence and is liable on Section 150D inserted 27 July 2012 section 14 Dairy Industry Restructuring Amendment Act 2012 Section 150D(3)﻿(a) amended 1 June 2023 section 15 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022 Section 150D(6) amended 4 October 2013 regulation 3(1) Criminal Procedure (Consequential Amendments) Regulations 2013
150E: Appointment of members of panel
1: New co-op must appoint—
a: 2 members nominated by the Minister to the panel; and
b: a chair of the panel nominated by new co-op who has been approved by the Minister; and
c: 2, 3, or 4 more members to the panel; and
d: an additional member nominated by the Minister if the chair is a member nominated by the Minister.
1A: Members appointed on the nomination of the Minister must be appointed on the same terms and conditions as other members appointed by new co-op to the panel.
2: New co-op must ensure that at all times the chair and a majority of the members (including the chair) are independent.
2A: New co-op must ensure at all times that the chair does not have a meaningful association with new co-op or with a shareholding farmer, for example, the chair must not be—
a: a sitting director of new co-op, a member of new co-op’s Co-operative Council, or a current panel member appointed by that council; or
b: a relative of a person described in paragraph (a); or
c: an associated person or an employee of a person described in paragraph (a).
2B: The obligation in subsection (2A)—
a: is in addition to the obligation in subsection (2); and
b: applies regardless of how a position or relationship referred to in subsection (2A)﻿(a) to (c) is described in new co-op’s constitution or any other document.
3: If, without reasonable excuse, new co-op contravenes subsection (1), (1A), (2), or (2A) Section 150E inserted 27 July 2012 section 14 Dairy Industry Restructuring Amendment Act 2012 Section 150E(1) replaced 1 June 2023 section 16(1) Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022 Section 150E(1A) replaced 1 June 2023 section 16(1) Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022 Section 150E(2A) inserted 1 June 2023 section 16(2) Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022 Section 150E(2B) inserted 1 June 2023 section 16(2) Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022 Section 150E(3) amended 1 June 2023 section 16(3) Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022 Section 150E(3) amended 1 June 2021 section 37(2) Dairy Industry Restructuring Amendment Act 2020 Section 150E(3) amended 4 October 2013 regulation 3(1) Criminal Procedure (Consequential Amendments) Regulations 2013
150EA: Calculation of base milk price
1: New co-op must engage 1 or more persons to calculate a base milk price that will enable the panel to perform its function under section 150D(3)
2: New co-op must ensure that a person—
a: is engaged to provide the service for a term of no more than 6 consecutive seasons; and
b: is not re-engaged to provide the service until at least 4 seasons have passed since the end of their previous term.
3: New co-op must ensure that a person it engages to provide the service—
a: is independent of new co-op; and
b: operates at arm’s length in relation to new co-op when providing the service.
4: The requirements in subsection (2) apply, in respect of a person that is an entity, to the entity and its key personnel.
5: In this section,— arm’s length
a: do not include elements that parties in their respective positions would usually omit, if the parties were—
i: connected or related only by the transaction or dealing in question; and
ii: acting independently; and
iii: each acting in their own best interests; and
b: do not omit elements that parties in their respective positions would usually include, if the parties were—
i: connected or related only by the transaction or dealing in question; and
ii: acting independently; and
iii: each acting in their own best interests key personnel
a: a director, partner, trustee, or senior manager of the entity who has a role in providing the service; and
b: senior personnel engaged by the entity for the purpose of providing the service service
6: If, without reasonable excuse, new co-op contravenes subsection (1), (2), or (3), it commits an offence and is liable on conviction to a fine not exceeding $200,000 and a fine of $10,000 for each day that the offence continues. Section 150EA inserted 1 June 2023 section 17 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022 Milk price manual Heading inserted 27 July 2012 section 14 Dairy Industry Restructuring Amendment Act 2012
150F: New co-op must maintain milk price manual
1: New co-op must maintain a manual (the milk price manual
2: New co-op must make the manual publicly available, including any amendments to the manual.
3: If new co-op contravenes subsection (1) or (2), it commits an offence and is liable on Section 150F inserted 27 July 2012 section 14 Dairy Industry Restructuring Amendment Act 2012 Section 150F(3) amended 4 October 2013 regulation 3(1) Criminal Procedure (Consequential Amendments) Regulations 2013
150G: Steps new co-op must take if panel recommendation not followed or implemented
1: This section applies if—
a: new co-op does not amend the milk price manual in accordance with a recommendation by the panel; or
b: new co-op amends the milk price manual contrary to a recommendation by the panel; or
c: new co-op amends the milk price manual without having received a recommendation by the panel for the amendment.
2: New co-op must,—
a: if subsection (1)﻿(a) applies, make publicly available—
i: the recommendation of the panel; and
ii: new co-op's reasons for not implementing that recommendation:
b: if subsection (1)﻿(b) applies, make publicly available—
i: the recommendation of the panel; and
ii: new co-op's reasons for amending the milk price manual contrary to that recommendation:
c: if subsection (1)﻿(c) applies, make publicly available a statement of new co-op's reasons for amending the milk price manual without having received a recommendation by the panel for the amendment.
3: If new co-op contravenes subsection (2), it commits an offence and is liable on Section 150G inserted 27 July 2012 section 14 Dairy Industry Restructuring Amendment Act 2012 Section 150G(3) amended 4 October 2013 regulation 3(1) Criminal Procedure (Consequential Amendments) Regulations 2013 Review of milk price manual by Commission Heading inserted 27 July 2012 section 14 Dairy Industry Restructuring Amendment Act 2012
150H: Commission must review milk price manual
The Commission must, for each season, review the milk price manual and make a report under section 150I Section 150H inserted 27 July 2012 section 14 Dairy Industry Restructuring Amendment Act 2012
150I: Commission's report
1: The Commission must make a report on the extent to which the milk price manual is consistent with the purpose of this subpart ( see section 150A
1A: To avoid doubt, a report under subsection (1) may include the extent to which the way new co-op uses an assumption described in section 150B(1) section 150A
2: In making the report, the Commission must—
a: have regard to the information provided to it by new co-op under section 150L section 150K
b: have regard to any submission made by new co-op under section 150M(2)﻿(a) section 150K
c: give reasons for its conclusions. Section 150I inserted 27 July 2012 section 14 Dairy Industry Restructuring Amendment Act 2012 Section 150I(1A) inserted 1 January 2023 section 18 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022
150J: Commission must make final report publicly available
The Commission must finalise its report under section 150I Section 150J inserted 27 July 2012 section 14 Dairy Industry Restructuring Amendment Act 2012
150JA: Milk price manual review information to be published
1: New co-op must make all non-sensitive information publicly accessible within 20 working days after the date on which the Commission makes its final report publicly available under section 150J
2: In this section, non-sensitive information
a: commercially sensitive; or
b: subject to legal professional privilege; or
c: personal information. Section 150JA inserted 1 June 2023 section 19 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022 Procedure for Commission's review of milk price manual Heading inserted 27 July 2012 section 14 Dairy Industry Restructuring Amendment Act 2012
150K: Procedure for review of milk price manual
1: The procedure for the review by the Commission of the milk price manual is—
a: the procedure set out in sections 150L 150M
b: if a procedure is agreed between new co-op and the Commission, that procedure.
2: If new co-op fails to comply with the agreed procedure,—
a: the agreed procedure lapses; and
b: the procedure set out in sections 150L 150M Section 150K inserted 27 July 2012 section 14 Dairy Industry Restructuring Amendment Act 2012
150L: New co-op must provide Commission with milk price manual and other information
New co-op must, not later than 1 August in each year,—
a: provide the Commission with the milk price manual for the current season; and
b: provide the Commission with any recommendations by the panel in relation to the milk price manual
c: notify the Commission of any change in the economic and business environment that, in new co-op's view, requires a change to the milk price manual; and
d: certify to the Commission the extent to which new co-op considers that the milk price manual is consistent with the purpose of this subpart ( see section 150A
e: provide the Commission with reasons for the view expressed in new co-op's certificate given under paragraph (d). Section 150L inserted 27 July 2012 section 14 Dairy Industry Restructuring Amendment Act 2012 Section 150L(b) amended 1 June 2023 section 20 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022
150M: Draft Commission report
1: Not later than 15 October in the season to which the milk price manual relates, the Commission must provide new co-op with a draft of its report made under section 150I
2: Not later than 15 November in the season to which the milk price manual relates, new co-op must—
a: make a submission to the Commission on the draft report; or
b: notify the Commission that it does not wish to make a submission. Section 150M inserted 27 July 2012 section 14 Dairy Industry Restructuring Amendment Act 2012 Base milk price calculation Heading inserted 27 July 2012 section 14 Dairy Industry Restructuring Amendment Act 2012
150N: Steps new co-op must take if panel recommendation not followed or implemented
1: This section applies if new co-op sets the base milk price—
a: other than in accordance with a recommendation by the panel; or
b: without having received a recommendation by the panel for the base milk price.
2: New co-op must,—
a: if subsection (1)﻿(a) applies, make publicly available—
i: the recommendation of the panel; and
ii: a statement of new co-op's reasons for setting the base milk price other than in accordance with that recommendation:
b: if subsection (1)﻿(b) applies, make publicly available a statement of new co-op's reasons for setting the base milk price without having received a recommendation by the panel for the base milk price.
3: If new co-op contravenes subsection (2), it commits an offence and is liable on Section 150N inserted 27 July 2012 section 14 Dairy Industry Restructuring Amendment Act 2012 Section 150N(3) amended 4 October 2013 regulation 3(1) Criminal Procedure (Consequential Amendments) Regulations 2013
150O: Commission must review calculation of base milk price
1: The Commission must, for each season, review new co-op's calculation of the base milk price set for that season and make a report under section 150P
2: The first review under this section must be the review to be held in 2013 in respect of the 2012/2013 season. Section 150O inserted 27 July 2012 section 14 Dairy Industry Restructuring Amendment Act 2012
150P: Commission's report
1: The Commission must make a report on the extent to which the assumptions adopted and the inputs and process used by new co-op in calculating the base milk price for the season are consistent with the purpose of this subpart ( see section 150A
1A: To avoid doubt, a report under subsection (1) may include the extent to which the way new co-op uses an assumption described in section 150B(1) section 150A
2: In making the report, the Commission must—
a: have regard to the information provided to it by new co-op under section 150T section 150S
b: have regard to any submission made by new co-op under section 150U(2)﻿(a) section 150S
c: give reasons for its conclusions.
3: In making the report, the Commission—
a: is not required to calculate the costs of an independent processor; and
b: is not required to, and must not, state the amount of the base milk price according to its own calculations. Section 150P inserted 27 July 2012 section 14 Dairy Industry Restructuring Amendment Act 2012 Section 150P(1A) inserted 1 January 2023 section 21 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022
150Q: Commission must make final report publicly available
The Commission must finalise its report under section 150P Section 150Q inserted 27 July 2012 section 14 Dairy Industry Restructuring Amendment Act 2012
150QA: Base milk price calculation review information to be published
1: New co-op must make all non-sensitive information publicly accessible within 20 working days after the date on which the Commission makes its final report publicly available under section 150Q
2: In this section, non-sensitive information
a: commercially sensitive; or
b: subject to legal professional privilege; or
c: personal information. Section 150QA inserted 1 June 2023 section 22 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022
150R: Steps new co-op must take if base milk price changed after Commission report
1: This section applies if, after the Commission has made its report under section 150P
2: New co-op must without delay make publicly available—
a: the new base milk price; and
b: a statement of new co-op's reasons for the change.
3: If new co-op contravenes subsection (2), it commits an offence and is liable on Section 150R inserted 27 July 2012 section 14 Dairy Industry Restructuring Amendment Act 2012 Section 150R(3) amended 4 October 2013 regulation 3(1) Criminal Procedure (Consequential Amendments) Regulations 2013 Procedure for Commission's review of base milk price calculation Heading inserted 27 July 2012 section 14 Dairy Industry Restructuring Amendment Act 2012
150S: Procedure for review of base milk price calculation
1: The procedure for the review by the Commission of the calculation of the base milk price is—
a: the procedure set out in sections 150T 150U
b: if a procedure is agreed between new co-op and the Commission, that procedure.
2: If new co-op fails to comply with the agreed procedure,—
a: the agreed procedure lapses; and
b: the procedure set out in sections 150T 150U Section 150S inserted 27 July 2012 section 14 Dairy Industry Restructuring Amendment Act 2012
150T: New co-op must provide Commission with certain information
1: New co-op must, not later than 15 June
a: provide the Commission with the assumptions adopted and the inputs and process used by new co-op in calculating the base milk price for the preceding season; and
b: certify to the Commission the extent to which, in new co-op's view, the assumptions adopted and the inputs and process used by new co-op in calculating the proposed base milk price are consistent with the purpose of this subpart ( see section 150A
c: provide the Commission with reasons for the view expressed in new co-op's certificate given under paragraph (b).
2: New co-op must, no later than 5 working days before 15 September in each year, provide to the Commission the panel recommendations described in section 150D(3)﻿(c) Section 150T inserted 27 July 2012 section 14 Dairy Industry Restructuring Amendment Act 2012 Section 150T(1) amended 1 January 2023 section 23(1) Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022 Section 150T(2) inserted 1 June 2023 section 23(2) Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022
150U: Draft Commission report
1: No later than 1 August section 150P
2: No later than 15 August
a: make a submission to the Commission on the draft report; or
b: notify the Commission that it does not wish to make a submission. Section 150U inserted 27 July 2012 section 14 Dairy Industry Restructuring Amendment Act 2012 Section 150U(1) amended 1 January 2023 section 24(1) Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022 Section 150U(2) amended 1 January 2023 section 24(2) Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022 Directions relating to Commission reviews Heading inserted 1 June 2023 section 25 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022
150UA: Commission may give directions in relation to reviews
1: The Commission may, by notice, direct new co-op to do 1 or more of the following in the manner specified in the notice:
a: take any action in relation to a matter referred to in any of the following reports:
i: a report made under section 150I
ii: a report made under section 150P
b: publish any information requested by or provided to the Commission as part of a review under section 150H 150O
2: A direction must state—
a: the date by which, or period within which, the direction must be complied with; and
b: the reasons for which it is given.
3: New co-op must comply with a direction given under this section. Section 150UA inserted 1 June 2023 section 25 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022
150UB: Criteria for giving directions
1: The Commission may only give a direction that is consistent with the purpose set out in section 150A
2: A direction under section 150UA(1)﻿(b) section 150A
3: A direction under section 150UA(1)﻿(b) sections 150JA 150QA
a: commercially sensitive; or
b: subject to legal professional privilege; or
c: personal information. Section 150UB inserted 1 June 2023 section 25 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022
150UC: Process for giving directions
1: Before giving a direction (the proposed direction
a: make the proposed direction and the reasons for the proposed direction publicly available; and
b: consult new co-op about the proposed direction (including the Commission’s reasons for giving the proposed direction); and
c: have regard to any submissions or evidence provided by the persons consulted.
2: If the Commission gives a direction, it must provide the direction to new co-op.
3: After providing the direction to new co-op, the Commission must make the direction, and the Commission’s reasons for giving the direction, publicly available. Section 150UC inserted 1 June 2023 section 25 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022
150UD: Amendment and revocation of directions
1: The Commission may amend or revoke a direction—
a: on its own initiative; or
b: at the request of new co-op, if the Commission is satisfied that new co-op has provided the Commission with evidence of reasonable grounds to amend or revoke the direction.
2: A direction may be amended or revoked in the same way in which it may be made, except that section 150UC(1) Section 150UD inserted 1 June 2023 section 25 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022 Application of Commerce Act 1986 Heading repealed 1 June 2023 section 26 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022
150V: Application of Commerce Act 1986 to review by Commission under this subpart
Section 150V repealed 1 June 2023 section 26 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022
5B: Enforcement
Subpart 5B inserted 1 June 2023 section 27 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022
150W: Jurisdiction of High Court
The High Court may hear and determine the following matters:
a: applications for orders under section 150Y
b: proceedings for recovering pecuniary penalties under section 150Z
c: applications for injunctions under section 150ZC
d: actions for damages under section 150ZD Section 150W inserted 1 June 2023 section 27 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022
150X: Meaning of relevant provision
In this subpart, relevant provision subpart 5 5A section 115 Section 150X inserted 1 June 2023 section 27 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022
150Y: Court may order new co-op to comply with direction
The court may, on application by the Commission, order new co-op to comply with a direction given under section 150UA Section 150Y inserted 1 June 2023 section 27 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022
150Z: Pecuniary penalties
1: The court may, on application by the Commission, order a person to pay to the Crown a pecuniary penalty if satisfied that the person—
a: has contravened a relevant provision; or
b: has been involved in a contravention of a relevant provision.
2: The maximum amount of a pecuniary penalty under subsection (1) is,—
a: for contravention of section 150UA 150Y
b: for any other contravention, the same as the amount that applies under section 80
3: Despite section 150ZF section 79
4: In this section and section 150ZB involved in a contravention
a: has attempted to contravene the provision; or
b: has aided, abetted, counselled, or procured any other person to contravene the provision; or
c: has induced, or attempted to induce, any other person, whether by threats or promises or otherwise, to contravene the provision; or
d: has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by any other person of the provision; or
e: has conspired with any other person to contravene the provision. Section 150Z inserted 1 June 2023 section 27 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022
150ZA: Defences for person in contravention of relevant provision
1: In any proceeding under section 150Z A
a: A’s contravention was due to reasonable reliance on information supplied by another person; or
b: both of the following apply:
i: A’s contravention was due to the act or default of another person, or to an accident or to some other cause beyond A’s control; and
ii: A took reasonable precautions and exercised due diligence to avoid the contravention.
2: For the purposes of subsection (1)﻿(a) and (b)﻿(i), another person Section 150ZA inserted 1 June 2023 section 27 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022
150ZB: Defences for person involved in contravention of relevant provision
1: This section applies if—
a: a person ( A
b: another person ( B
2: In any proceeding under section 150Z
a: B’s involvement in the contravention was due to reasonable reliance on information supplied by another person; or
b: B took all reasonable steps to ensure that A complied with the provision.
3: For the purposes of subsection (2)﻿(a), another person Section 150ZB inserted 1 June 2023 section 27 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022
150ZC: Injunctions
1: If the court is satisfied, on application under subsection (2), that a person has contravened a relevant provision, the court may grant an injunction restraining a person from continuing the contravention.
2: An application may be made by—
a: the Commission, if the application relates to the contravention of any relevant provision:
b: any other person, if the application relates to the contravention of subpart 5 section 115 Section 150ZC inserted 1 June 2023 section 27 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022
150ZD: Actions for damages
1: Every person (other than the Commerce Commission) is liable for damages for loss or damage caused by that person engaging in conduct that constitutes a contravention of subpart 5 section 115
2: Sections 82(1) 82A Section 150ZD inserted 1 June 2023 section 27 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022
150ZE: Miscellaneous
1: In determining an appropriate penalty under section 150Z
a: for a contravention of subpart 5 section 115 sections 70 71
b: for a contravention of subpart 5A section 150A
c: the nature and extent of the contravention; and
d: the nature and extent of any loss or damage suffered by any person because of the contravention; and
e: any gains made or losses avoided by the person in contravention; and
f: whether the person in contravention has paid an amount in compensation or taken other steps for reparation or restitution; and
g: the circumstances in which the contravention or other act or omission took place (including whether it was intentional, inadvertent, or caused by negligence); and
h: any previous contraventions of a similar nature; and
i: any other relevant matter.
2: The standard of proof in proceedings under this subpart is the standard of proof that applies in civil proceedings.
3: In any proceedings under this subpart, the Commission, on the order of the court, may obtain discovery and administer interrogatories.
4: Proceedings under this subpart may be commenced within 3 years after the matter giving rise to the contravention arose.
5: If conduct by a person constitutes a contravention of 2 or more provisions of subpart 5 5A Section 150ZE inserted 1 June 2023 section 27 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022
150ZF: Application of Commerce Act 1986 provisions
1: The following provisions of the Commerce Act 1986 subparts 5 5A
a: sections 15 to 17
b: sections 74A to 74C
c: sections 77 78
d: section 79
e: section 88
f: section 88A
g: section 89
h: section 90
i: section 98
j: section 98A
k: section 98G
l: section 99
m: section 100
n: section 100A
o: sections 101 102
p: section 103
q: section 104
r: section 106
s: section 106A
t: section 109
2: For the purpose of carrying out its functions and exercising its powers under a relevant provision, the Commission may, in addition to exercising its powers under section 98
a: to do either or both of the following, at the time and place specified in the notice, if the Commission has reason to believe new co-op may have information relevant for that purpose:
i: prepare and produce, or supply to the Commission, documents and information in relation to any matter specified in the notice:
ii: answer any questions in relation to any matter specified in the notice; and
b: to have prepared and to produce, or to supply to the Commission, at the time and place specified in the notice, an expert opinion from an appropriately qualified person, or from a member of a class of appropriately qualified persons, as determined by the Commission in relation to any matter specified in the notice; and
c: to provide any or all of the following:
i: a written statement that states whether or not new co-op has complied with relevant provisions:
ii: a report on the written statement referred to in subparagraph (i) that is signed by an auditor in accordance with any form specified by the Commission:
iii: sufficient information to enable the Commission to properly determine whether relevant provisions have been complied with:
iv: a certificate, in the form specified by the Commission and signed by at least 1 director of new co-op, confirming the truth and accuracy of any information provided under this section. Section 150ZF inserted 1 June 2023 section 27 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022
150ZG: Additional proceedings
Proceedings brought under this Part are in addition to any proceedings brought under any other Act. Section 150ZG inserted 1 June 2023 section 27 Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022
6: Taxation
151: Shares issued on amalgamation neither dutiable gift nor dividend
1: The receipt by a person of shares issued by new co-op on the new co-op amalgamation in respect of shares held by the person in an amalgamating co-operative dairy company is neither a dutiable gift for the purposes of the Estate and Gift Duties Act 1968 Income Tax Act 2007
2: Neither regulation 7 regulation 7 1999 No 97 s 7(2), (3), (7) Section 151(1) amended 1 April 2008 section ZA 2(1) Income Tax Act 2007
152: Available subscribed capital of new co-op
For the purposes of the definition of the term available subscribed capital in section YA 1
a: new co-op is deemed to receive, on the amalgamation date, an aggregate amount of consideration in respect of the issue of its shares equal to the total available subscribed capital of the Board at that date (before the application of paragraph (e)); and
b: new co-op is deemed to receive on each 1 June after the amalgamation date, up to and including 1 June 2006, an additional aggregate amount of consideration of $140,000,000 in respect of the issue of its shares; and
c: the amounts of consideration new co-op is deemed to receive under paragraphs (a) and (b) are in addition to any other amount of consideration taken into account before the application of this section under the definition of available subscribed capital in the Income Tax Act 2007
d: the total available subscribed capital of the Board referred to in paragraph (a) includes any amount of consideration that the Board is deemed to have received by virtue of section 15ZE(2) of the Dairy Board Act 1961
e: the Board is deemed to have no available subscribed capital for the purposes of the Income Tax Act 2007 section YA 1 Income Tax Act 2007 1961 No 5 s 15ZE(2) 1999 No 97 s 7(6) Section 152 amended 1 April 2008 section ZA 2(1) Income Tax Act 2007 Section 152(c) amended 1 April 2008 section ZA 2(1) Income Tax Act 2007 Section 152(e) amended 1 April 2008 section ZA 2(1) Income Tax Act 2007
153: Class of shares in respect of which available subscribed capital is received
1: The consideration deemed to be received by new co-op—
a: under section 152(a)
b: under section 152(b)
2: A class of shares referred to in subsection (1)﻿(a) or (b) may, for the purposes of that subsection, be substituted if necessary by any class of shares that may reasonably be regarded as the successor to all or part of the original class.
3: Subsections (1) and (2) apply if new co-op nominates the proportions by notice in writing to the Commissioner of Inland Revenue within 30 days after the date on which the consideration is deemed to be received.
4: If no valid nomination is made under subsection (3) in respect of an amount of consideration, the amount is deemed to have been received in respect of the class of shares in new co-op that is required to be held by transacting shareholders. 1999 No 97 s 7(5), (6)
154: Net losses and imputation credits of amalgamating co-ops
1: For the purpose of subsection (2), the holders of shares or options over shares in each company amalgamating in the new co-op amalgamation are deemed, at all times before the new co-op amalgamation, to be the same persons, holding in the same proportions, as the actual holders of shares or options over shares in new co-op immediately after the new co-op amalgamation.
2: Subsection (1) applies for the purpose of determining the voting interest or market value interest of any person in the companies amalgamating in the new co-op amalgamation (other than Fonterra Co-operative Group Limited), in the Board, and in all companies in which new co-op has a voting interest or market value interest (determined as if sections YC 4 YC 5
3: For the purposes of subpart IE section IA 6
4: In this section, consolidated group group of companies market value interest voting interest Income Tax Act 2007 Section 154(2) amended 1 April 2008 section ZA 2(1) Income Tax Act 2007 Section 154(3) amended 1 April 2008 section ZA 2(1) Income Tax Act 2007 Section 154(4) amended 1 April 2008 section ZA 2(1) Income Tax Act 2007
155: Taxation of company into which Board converts
1: This section applies, for the purposes of the Inland Revenue Acts (within the meaning of section 3(1) Companies Act 1993
2: The company is not a statutory producer board for the purposes of the Income Tax Act 2007
3: For the avoidance of doubt, and for the purposes of the Income Tax Act 2007 tax year tax year
4: Subject to section 154 Income Tax Act 2007 section 15ZE(3) to (5) of the Dairy Board Act 1961
5: Subsections (1) to (3) apply on and after the conversion date.
6: Subsection (4) applies on and after the amalgamation date. 1961 No 5 s 15ZE(6) Section 155(2) amended 1 April 2008 section ZA 2(1) Income Tax Act 2007 Section 155(3) amended 1 April 2008 section ZA 2(1) Income Tax Act 2007 Section 155(3) amended 1 April 2005 section YA 2 Income Tax Act 2004 Section 155(4) amended 1 April 2008 section ZA 2(1) Income Tax Act 2007
156: Gift duty and taxation in respect of Livestock Improvement Corporation Limited
Section 156 repealed 1 June 2021 section 38 Dairy Industry Restructuring Amendment Act 2020
157: Taxation of The New Zealand Dairy Research Institute
1: For the purposes of the Income Tax Act 2007 section 158(2)﻿(a)
a: is deemed to acquire the assets, rights, and liabilities of the charitable trust known as The New Zealand Dairy Research Institute on the amalgamation date for their market values on that date; and
b: despite paragraph (a), is deemed to be the same person as that charitable trust.
2: For the purposes of the Income Tax Act 2007 section 158 subpart CW
3: Subsection (1)﻿(b) also applies for the purposes of the other Inland Revenue Acts (within the meaning of section 3(1)
4: For the avoidance of doubt, the vesting that takes place under section 158(2)﻿(a) Estate and Gift Duties Act 1968 Section 157(1) amended 1 April 2008 section ZA 2(1) Income Tax Act 2007 Section 157(2) amended 1 April 2008 section ZA 2(1) Income Tax Act 2007 Section 157(2) amended 1 April 2005 section YA 2 Income Tax Act 2004
7: The New Zealand Dairy Research Institute, sharemilkers, and miscellaneous provisions
The New Zealand Dairy Research Institute
158: The New Zealand Dairy Research Institute
1: The charitable trust known as The New Zealand Dairy Research Institute (the trust
2: Despite the Charitable Trusts Act 1957
a: on the amalgamation date, the assets, rights, interests, obligations, and liabilities of the trust vest beneficially in the company that is on that date the trustee of the trust (the Institute company
b: the Institute company may, on or after the amalgamation date and without further authority than this section, alter or revoke its constitution in accordance with the Companies Act 1993
c: proceedings that could have been commenced or continued by or against the trust before its termination may be commenced or continued by or against the Institute company; and
d: all transactions entered into by, and acts of, the trust before the termination of the trust must be treated as having been entered into by, or as being those of, the Institute company and as having been entered into, or performed by, the Institute company at the time when they were entered into, or performed by, the trust; and
e: the Institute company is deemed to be the same person as the trust.
3: The New Zealand Dairy Research Institute, a trust board registered under the Charitable Trusts Act 1957 section 26
159: Employees
For the avoidance of doubt,—
a: section 158
b: each employee of the trust is an employee of the Institute company and, for the purposes of every enactment, law, award, determination, contract, and agreement that relates to the employment of the employee, his or her employment agreement is unbroken and the period of his or her service with the trust, and every other period of service that is recognised by the trust as his or her continuous service, is a period of service with the Institute company; and
c: the terms and conditions of the employment of each employee with the trust company are (until varied) identical to the terms and conditions of his or her employment with the trust and are capable of variation in the same manner; and
d: an employee is not entitled to receive any payment or other benefit by reason only of section 158 Sharemilkers
160: Sharemilkers
1: Section 44 Part 2 Part 3
2: Amendment(s) incorporated in the Act(s) Miscellaneous provisions
161: Application of Co-operative Companies Act 1996 to new co-op shares
1: New co-op’s constitution may include, in relation to any shares or class of shares, provisions that—
a: entitle any shareholder to elect to surrender shares at a value determined in accordance with the constitution; or
b: require shares to be surrendered or forfeited at a value determined in accordance with the constitution.
2: Sections 17 to 21 22(4) 23 to 28 29(a) and (b)
3: When section 77A see section 77B
4: Nothing in the Co-operative Companies Act 1996 section 77
5: Sections 17 to 19 20(1) and (4) 21 22(4) 23 to 28 29(a) and (b) section 77 Section 161(3) inserted 27 July 2012 section 15 Dairy Industry Restructuring Amendment Act 2012 Section 161(4) inserted 27 July 2012 section 15 Dairy Industry Restructuring Amendment Act 2012 Section 161(5) inserted 27 July 2012 section 15 Dairy Industry Restructuring Amendment Act 2012
161A: Voting rights in respect of new co-op fund securities held by new co-op or nominee
1: Subject to subsection (2), new co-op must not exercise voting rights conferred by new co-op fund securities held by new co-op or a nominee.
2: Nothing in subsection (1) prevents new co-op, any person representing the interests of shareholding farmers, or a nominee of new co-op or shareholding farmers from exercising the right conferred by one new co-op fund security (the veto security
a: any change in the governance structure of the board of the manager of the new co-op fund, including—
i: the number of members of the board appointed by holders of new co-op fund securities other than new co-op; and
ii: the number of members of the board appointed by new co-op; and
b: any change in the scope and role of the new co-op fund; and
c: any change in the obligation of the new co-op fund to facilitate the exchange of co-operative shares for an equal number of new co-op fund securities, and vice versa; and
d: any change in the limit on the number of new co-op fund securities that can be held by a person or an entity (together with any associates of that person or entity); and
e: any change in the terms on which the veto security is issued. Section 161A inserted 27 July 2012 section 16 Dairy Industry Restructuring Amendment Act 2012
161B: New co-op may acquire new co-op fund securities
1: New co-op may, in accordance with this section, but not otherwise, acquire new co-op fund securities.
2: Sections 52 56
3: Section 53
4: Subject to subsection (5), new co-op fund securities may be held by new co-op and are not required to be exchanged for co-operative shares immediately on acquisition, but may be exchanged after acquisition.
5: New co-op fund securities acquired under this section are required to be exchanged for co-operative shares immediately on acquisition if the number of new co-op fund securities acquired, when aggregated with other new co-op fund securities and co-operative shares held by new co-op at the time of the acquisition, exceeds 5% of all co-operative shares issued by new co-op, excluding any co-operative shares deemed to be cancelled under section 66(1) section 161C(3)
6: Within 10 working days after the acquisition of new co-op fund securities, the board of new co-op must ensure that notice of the acquisition is delivered to each licensed market on which co-operative shares are quoted
7: If the board of new co-op fails to comply with subsection (6), every director of new co-op commits an offence as if the board of new co-op had failed to comply with section 58(3)
8: If new co-op acquires or proposes to acquire new co-op fund securities, sections 60(3) to (7) 61(1) to (6) and (8) to (10) 62 63 64 65 67
a: a reference to a company or the company were a reference to new co-op:
b: a reference to the board were a reference to the board of new co-op:
c: under subsection (1) section 60(3) and (6) to acquire new co-op fund securities under this section
d: under section 60(1)﻿(b)﻿(ii) section 61(1) and (4) to acquire new fund co-op securities under section 60
e: a reference to shares in the following provisions were a reference to new co-op fund securities:
i: section 60(3)﻿(b)
ii: section 60(3)﻿(c)﻿(ii)
iii: section 60(6
iv: section 61(1)﻿(b)
v: section 61(4)
vi: section 61(8)﻿(b)
vii: section 62(b
viii: section 63(1)
ix: section 63(4)
x: section 63(5)
xi: section 63(8)﻿(b)
xii: section 64
xiii: section 65
xiv: section 67
f: a reference to shares in the following provisions were a reference to co-operative shares:
i: section 60(3)﻿(c)﻿(i)
ii: section 60(6)﻿(c)﻿(i)
iii: section 63(1)﻿(d)﻿(i)
iv: section 63(5)﻿(c)﻿(i)
v: section 65(1)﻿(a)﻿(iii)﻿(A)
vi: the third reference to shares in section 65(1)﻿(b)
g: a reference to shareholders in the following provisions were a reference to holders of new co-op fund securities:
i: section 60(3)﻿(c)
ii: section 60(6)﻿(c)
iii: section 62(a)
iv: section 63(1)
v: section 63(5)﻿(c)
vi: section 65(1)﻿(a)﻿(iii)
h: a reference to a shareholder, shareholders, or remaining shareholders in the following provisions were a reference to shareholders of new co-op:
i: section 61(1), (4), and (8)
ii: section 63(1)﻿(b) and (c)
iii: section 63(5)
iv: section 63(8)
v: section 65(1)﻿(a)﻿(i)
vi: section 65(2A)
i: a reference to a shareholder in the following provisions were a reference to a shareholder of new co-op and a holder of new co-op fund securities:
i: section 61(5) and (6)
ii: section 63(6) and (7)
j: a reference to a reasonable shareholder in sections 62(c) 64(1)﻿(d)
k: Without limiting sections 60 61 sections 63(1) 65(1)
l: the first reference to the board of the company in section 65(1)
m: from its shareholders section 65(1)
n: the reference in section 65(2)
o: in the same class section 65(1)﻿(b)
p: its section 67(1)
q: a reference to stock exchange were a reference to licensed market Section 161B inserted 27 July 2012 section 16 Dairy Industry Restructuring Amendment Act 2012 Section 161B(6) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 161B(8)﻿(n) replaced 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013 Section 161B(8)﻿(q) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013
161C: New co-op may exchange new co-op fund securities for co-operative shares
1: New co-op may acquire co-operative shares by exchanging new co-op fund securities it has acquired in accordance with section 161B
2: Nothing in section 58(1)
3: Subject to subsection (4), co-operative shares acquired under this section are deemed to be cancelled immediately on acquisition.
4: Co-operative shares acquired under this section are not deemed to be cancelled immediately on acquisition if—
a: the constitution of new co-op expressly permits new co-op to hold its own shares; and
b: the board of new co-op resolves that the co-operative shares concerned must not be cancelled on acquisition; and
c: the number of co-operative shares acquired, when aggregated with other co-operative shares held by new co-op pursuant to this section or section 67A section 161B section 66(1)
5: Co-operative shares acquired under this section that, pursuant to this section, are not deemed to be cancelled must be held by new co-op.
6: A co-operative share that new co-op holds under subsection (5) may be cancelled by the board of new co-op resolving that the co-operative share is cancelled, and the co-operative share is deemed to be cancelled on the making of that resolution. Section 161C inserted 27 July 2012 section 16 Dairy Industry Restructuring Amendment Act 2012
161D: Financial assistance by new co-op for purchase of co-operative shares
1: New co-op may give financial assistance for the purpose of, or in connection with, the purchase of a co-operative share if—
a: the financial assistance is given in relation to the establishment and operation of—
i: the licensed market
ii: the new co-op fund; and
b: the financial assistance is given to any of the following:
i: a custodian of co-operative shares:
ii: a holder of shares in a custodian of co-operative shares:
iii: a market maker in co-operative shares:
iv: a broker or other agent in relation to the trading of co-operative shares or new co-op fund securities:
v: a trustee or manager of the new co-op fund:
vi: any other service provider; and
c: the board of new co-op has previously resolved that—
i: new co-op should provide the assistance; and
ii: the giving of the assistance is in the best interests of new co-op; and
iii: the terms and conditions under which the assistance is given are fair and reasonable to new co-op.
2: The Companies Act 1993 section 76(1) and (2)
3: Nothing in this section affects the giving of financial assistance by new co-op under section 76(1) Section 161D inserted 27 July 2012 section 16 Dairy Industry Restructuring Amendment Act 2012 Section 161D(1)﻿(a)﻿(i) amended 1 December 2014 section 150 Financial Markets (Repeals and Amendments) Act 2013
161E: Application of Companies Act 1993
Nothing in section 82 Act section 82(6) Section 161E inserted 27 July 2012 section 16 Dairy Industry Restructuring Amendment Act 2012
161F: Application of section 20(2) and (3) of Co-operative Companies Act 1996
Section 20(2) and (3) Section 161F inserted 30 November 2012 section 17 Dairy Industry Restructuring Amendment Act 2012
162: Shareholders’ Council of new co-op
1: This section applies if new co-op’s constitution provides for a Shareholders’ Council.
2: Every application under section 12
3: This section is additional to the requirements in section 12
163: General regulations
Any regulations made under sections 62 to 65C 115 116 119 134 Section 163 amended 1 June 2021 section 40 Dairy Industry Restructuring Amendment Act 2020
164: Validation of issue of certain shares
1: A failure to comply with section 50 Part 3
2: This section does not affect any rights at issue in an action commenced before 6 September 2001. Repeals, revocations, and amendments
165: Repeals, revocations, and amendments
1: The Dairy Board Act 1961 (1961 No 5)
2: The orders specified in Schedule 6
3:
4: The rest of the Acts specified in Schedule 7
5: The orders specified in Schedule 8 Section 165(3) repealed 1 April 2005 section YA 2 Income Tax Act 2004 Transitional provisions Heading repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
166: Board must supply information about export permits
Section 166 repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012 Savings provisions
167: Saving relating to export produce
Section 167 repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
168: Annual report and statements for season ending 31 May 2001
Section 168 repealed 27 July 2012 section 18 Dairy Industry Restructuring Amendment Act 2012
169: Saving relating to superannuation schemes
Despite section 165(1) section 45(2) and (3) of the Dairy Board Act 1961
a: before that date, became a member of a scheme established under that section; or
b: is entitled to any benefit under the scheme by virtue of a person to whom paragraph (a) applies being a member of that scheme.