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Niue Sessional Legislation |
NIUE
Act No. 333
Contents
1 Title
2 Commencement
Part 1
Preliminary matters
3 Interpretation
4 Meaning of contravenes an environmental standard
5 Act binds the Government
6 Matters to be taken into account
7 Act does not apply to certain existing activities
Part 2
Environmental protection
Development consents
8 Development consents required for certain activities affecting environment
9 Objections to granting of development consent
10 Consent holder must inform Department of change in circumstances
11 Suspension or cancellation of development consent
12 Certain activities exempt from development consent requirement
Environmental standards
13 Establishment of environmental standards
14 Activities affecting land use
15 Disposing of waste or other matter and removal and disposal of asbestos
16 Activities affecting freshwater supplies
17 Activities affecting marine areas
18 Activities affecting animals
19 Activities affecting plants
20 Activities affecting air quality or atmosphere
21 Noise control
Living modified organisms
22 Development, use, and testing of living modified organisms
Protected areas
23 Protected areas
24 Protected areas and environmental standards
Protected plant species
25 Protected plant species
26 Protected plant species and environmental standards
Relationship of Act with other legislation and legal requirements
27 Relationship of Act with other legislation and legal requirements
Part 3
Enforcement
28 Failure to comply with Act is offence
29 General offences
30 Infringement offences
31 Civil remedies for environmental contraventions
32 Civil remedies in relation to prospective environmental contraventions
33 Matters to be taken into account
34 Additional penalties for environmental contraventions
35 Community service orders
36 Other rights of action and remedies
Part 4
Administration
Environment Department
37 Environment Department to continue
38 Functions of Department
39 Functions of Department relating to international conventions and other multilateral environment agreements (MEAs)
40 Staff of Department
41 Power of Director to delegate
42 Annual report
43 Protection from personal liability
Environment officers
44 Appointment of environment officers
45 Identification of environment officers
46 Power of environment officers to inspect
47 Consents and approvals authorise inspections
48 Power of environment officers to seize evidential items
49 Power of environment officers to seize and remove certain waste
50 Powers that are exercisable by warrant
Part 5
Environmental levies and refunds
51 Cabinet may prescribe levies
52 Refunds for certain used items
Part 6
Miscellaneous
53 Regulations
54 Liability of company
55 Company liability in case of bankruptcy
56 Repeal of Act and continuation of regulations
57 Consequential amendments to Water Act 2012
58 Consequential amendments to Domestic Fishing Act 1995
59 Consequential amendments to Territorial Sea and Exclusive Economic Zone Act 1996
60 Continuation of employment
An Act to provide for the preservation and protection of the environment of Niue and, for that purpose, -
(a) authorise the making of environmental standards to regulate activities that affect the environment of Niue; and
(b) ensure that all government departments and public authorities consider environmental matters when making decisions that have or may have an effect on the environment of Niue.
The Assembly enacts as follows -
This Act is the Environment Act 2015.
This Act comes into force on the day after the date on which it becomes law in accordance with Article 34 of the Constitution.
Part 1
Preliminary matters
In this Act, unless the context otherwise requires, -
contravenes an environmental standard has the meaning given in section 4
Court means the Niue High Court
Department means -
(a) the Environment Department established by section 5 of the Environment Act 2003 and continued in existence by section 37 of this Act; or
(b) any other department that is responsible for the administration of this Act
development consent, for an activity, means consent to carry out or continue the activity, as the case may be
Director means the Director of the Environment Department or the Director of the department that is responsible for the administration of this Act, as the case may be
environment -
- (a) means all natural and physical elements; and
- (b) includes -
- (i) land, marine areas, freshwater supplies, and air; and
- (ii) ecosystems and their constituent parts, including people and communities; and
- (iii) the natural and physical qualities and characteristics of an area that contribute to people's appreciation of its pleasantness, aesthetic coherence, and cultural and recreational attributes (commonly known as amenity values)
environment officer means a person holding office under section 44
environmental contravention means a contravention of any of sections 14 to 22
environmental degradation means the deterioration of the environment
environmental impact assessment, for an activity, means an independent assessment of the effects the activity will or may have on the environment
environmental regulations means regulations made under section 13(1), 23, 25, or 53
environmental standard -
- (a) means a standard established by regulations made under section 11(1); and
- (b) includes -
- (i) a regulation made under section 23 protecting an area of land; and
- (ii) a regulation made under section 25 protecting a species or subspecies of plant; and
- (iii) any forest management plan made under an enactment
freshwater supply -
- (a) means a land-based source of fresh water; and
- (b) without limiting the generality of paragraph (a), includes -
- (i) an underground body of fresh water; and
- (ii) an aquifer; and
- (iii) a bore or well connected to an underground body of fresh water or aquifer
independent, in relation to an environmental impact assessment, means an environmental impact assessment carried out in accordance with the environmental regulations
infringement notice means a notice alleging the commission of an infringement offence
infringement offence means an offence against this Act or regulations made under this Act that is classified as an infringement offence by or in accordance with section 28(6)
land -
- (a) means Crown land and Niuean land; and
- (b) includes -
- (i) the foreshore (within the meaning of section 2 of the Territorial Sea and Exclusive Economic Zone Act 1996); and
- (ii) the bed of the territorial sea of Niue; and
- (iii) any natural structure attached to the bed of the territorial sea of Niue (for example, a reef or shoal) part of which from time to time, or occasionally, protrudes above the surface of the sea; and
- (iv) a plant growing on land; and
- (v) a building, a structure, or any other thing permanently fixed to land
living modified organism -
- (a) means a living organism that possesses a novel combination of genetic material obtained through the use of modern biotechnology techniques (being techniques, not used in traditional breeding and selection, that overcome natural physiological reproductive barriers or recombination barriers); and
- (b) includes agricultural crops (such as taro) that have been genetically modified for greater productivity or for resistance to pests or disease
marine area means -
- (a) the territorial sea of Niue; and
- (b) the exclusive economic zone of Niue
Minister means the Minister responsible for the Department
organism -
(a) means any organism capable of transferring or replicating genetic material; and
(b) includes -
- (i) sterile organisms; and
- (ii) viruses, viroids, plasmids, and bacteriophages; and
- (iii) micro-organisms; and
- (iv) subject to paragraph (c), a genetic structure that is capable of replicating itself (whether that structure comprises all or only part of an entity, and whether it comprises all or only part of the total genetic structure of the entity); and
- (v) a reproductive cell or developmental stage of an organism; and
- (vi) any particle that is a prion; but
(c) does not include a human or a genetic structure derived from a human
outcome includes effect
prescribed means prescribed in regulations made under this Act
protected area means an area of land prescribed as a protected area under section 23
protected plant species means a plant species prescribed as a protected species under section 25
public authority means a person or body executing a function in the public interest and for the public benefit pursuant to an enactment
significant activity means any activity that would require a development consent under section 8
significant environmental impact means an impact that significantly affects the environment, human health, or the health of animals or plants
sustainable development, means any significant activity that meets that meets the needs of the present generation without compromising the ability of future generations to meet their own needs and involves using resources to improve the quality of human life while living within the carrying capacity of supporting ecological systems
tapu means a place or land sacred to Niueans in the traditional, spiritual, religious, ritual, or mythological sense
waste -
- (a) means any thing disposed of or discarded; and
- (b) includes -
- (i) wastewater; and
- (ii) a type of waste that is defined by its composition or source (for example, human waste, animal waste, organic waste, electronic waste, hazardous waste, or construction and demolition waste).
(1) For the purposes of this Act, a person contravenes an environmental standard if (in the course of preparing to carry on, carrying on, or dealing with the consequences of carrying on an activity protected by the standard) the person -
(a) does a thing prohibited by the standard; or
(b) does a thing whose outcome (direct or indirect) is or includes an outcome prohibited by the standard; or
(c) fails or refuses to take all reasonably practicable steps to ensure that an outcome prohibited by the standard does not occur; or
(d) fails or refuses to do a thing required by the standard; or
(e) fails or refuses to do a thing where that failure or refusal has an outcome (direct or indirect) that is or includes an outcome prohibited by the standard; or
(f) fails or refuses to take all reasonably practicable steps to ensure that an outcome required by the standard occurs.
(2) In this section, an activity protected by the standard means an activity of a kind described in the environmental standard as the subject matter of the standard.
This Act binds the Government.
All persons exercising functions and powers under this Act must, to the extent applicable, take into account the following matters:
(a) the maintenance and enhancement of the quality of the environment:
(b) the efficient use and development of natural and physical resources:
(c) the concept of sustainable development:
(d) the protection of the water lens from contamination:
(e) the protection of indigenous flora and indigenous fauna and their habitats:
(f) the protection of the coastal zone from inappropriate use and development:
(g) the protection of historic areas from inappropriate use and development:
(h) the relationship of Niueans and their culture and traditions to their lands and historic areas:
(i) the conservation and sustainable use of biological resources:
(j) compliance with multilateral environment agreements to which Niue is a party.
This Act does not apply to any activity that -
(a) was completed before the commencement of this Act; or
(b) has been authorised under the Environment Act 2003; or
(c) was lawfully begun before the commencement of this Act and -
- (i) has, or is likely to have, effects that are the same as or similar in character, intensity, and scale to those of other activities lawfully carried on before the commencement of this Act; and
- (ii) has not, since it was begun, been discontinued for any continuous period of 6 months (being a period all or part of which was after the commencement of this Act).
Environmental protection
Development consents
(1) This section applies to an activity if -
(a) 1 or more of the following apply:
- (i) the activity will or may have a significant environmental impact:
- (ii) in an environmental standard, the activity is stated as one that must not be started or continued without development consent:
- (iii) in an environmental standard, the activity is stated as being one that will or may have a significant environmental impact:
- (iv) the activity will or may contravene an environmental standard; and
(b) the activity is not -
- (i) an existing activity to which section 6 applies; or
- (ii) an activity to which section 12(1) applies.
(2) A person must not start an activity to which this section applies without first having been granted development consent to carry on the activity.
(3) A person must not continue any activity to which this section applies without first having been granted development consent for continuing the activity.
(4) Development consent for an activity to which this section applies -
(a) must be applied for in accordance with the environmental regulations; and
(b) may be granted -
- (i) with or without conditions (including a condition that a condition be amended, or 1 or more further conditions imposed, during the life of the consent); and
- (ii) by the Department or the Minister, as the regulations require.
(5) An independent environmental impact assessment of the activity must be carried out as part of the process of obtaining development consent.
(6) An environmental impact assessment -
(a) must be carried out in accordance with the environmental regulations; and
(b) may be -
- (i) a single process, comprising an initial assessment; or
- (ii) a two-step process, comprising both initial and full assessments.
(7) Development consent for an activity to which this section applies must not be granted unless an environmental impact assessment of the activity has first been carried out.
(1) On receipt of an application for a development consent, the Director must give 2 weeks public notice that -
(a) provides a brief description of the application; and
(b) requests all interested persons to inform the Director whether they support the application or object to it and, if they do object, the reasons for that objection; and
(c) states the last day on which such information will be received and the name or official designation and address of the person to whom it should be sent.
(2) The Director may -
(a) require an objector or an applicant to provide additional information; and
(b) delay consideration of the objection or response until the information is provided or, if the information is not provided within the time specified, refuse to consider the objection or response.
(3) Before making a determination on an application in respect of which an objection has been made, the Director must endeavour to resolve the issues raised by the objection by means of consultation with the applicant and the objector, with a view to reaching agreement on the matters raised by the objection.
(1) This section applies if the holder of development consent for an activity is required to notify, communicate, or report information to the Director or the Department as a condition of the development consent.
(2) The consent holder must, as soon as practicable, notify the Department of any change in circumstances that has the effect of rendering any information previously notified, communicated, or reported false, incomplete, or misleading.
(1) The Director may suspend a development consent granted for an activity, by written notice to the consent holder, if he or she considers on reasonable grounds that the holder is contravening or is likely to contravene any condition of the consent.
(2) A consent holder given notice under subsection (1) must cease carrying out the activity until the holder has proved, to the satisfaction of the Director, that the activity will be carried out in compliance with the conditions of the consent.
(3) If the holder does not so satisfy the Director within 15 working days of receiving notice under subsection (1), or such later time as the Director permits, the Director may, by written notice to the holder, cancel the consent (regardless of whether the consent was granted by the Director or the Minister).
(1) Section 8 does not apply to an activity to which it would otherwise apply if -
(a) the activity is expressly authorised by an enactment other than this Act; or
(b) the activity is of a kind expressly authorised by this Act, the environmental regulations, or an enactment other than this Act.
(2) However, if Cabinet, or a government department, or an officer of a government department is empowered under any enactment to grant a consent, licence, or other permission to any person that authorises that person to carry out an activity that will or may have a significant environmental impact, then, as the case may be, before granting the permission, -
(a) Cabinet must be satisfied that -
- (i) a contravention of any relevant environmental standard will not result from the granting of the permission; or
- (ii) the person to whom the permission is granted will comply with the environmental standard when carrying out the activity; and
(b) the government department or officer must obtain the consent of the Director, whether or not the enactment expressly requires the Director's consent.
(3) The Director may give consent for the purposes of subsection (2)(b) only if he or she is satisfied that -
(a) a contravention of any relevant environmental standard will not result from the granting of the permission; or
(b) the person to whom the permission is granted will comply with the environmental standard.
Environmental standards
(1) Cabinet may make regulations establishing a standard for the carrying on of one or more activities of a kind described in the regulations as the subject matter of the standard.
(2) A standard may state elements of the environment for whose protection it is established.
(3) A standard may specify -
(a) activities that must not be started or continued without development consent (for the purposes of section 8(1)(a)(ii)); and
(b) activities that may be carried out without development consent (for the purposes of section 12(1)).
(4) A standard must not be inconsistent with any other standard (including a protected plant species notice or a protected area notice).
A person must not carry out either of the following activities unless the activity is expressly authorised by this Act or the environmental regulations or has development consent:
(a) using land in a manner that contravenes an environmental standard; or
(b) doing anything in a manner that contravenes an environmental standard established for the protection of land.
(1) A person must not dispose of waste or other matter, including litter, in a manner that contravenes an environmental standard unless the disposal is expressly authorised by this Act or the environmental regulations or has development consent.
(2) A person must not remove or dispose of asbestos in a manner that contravenes an environmental standard unless the removal or disposal is expressly authorised by this Act or the environmental regulations.
A person must not carry out either of the following activities unless the activity is expressly authorised by this Act or the environmental regulations or has development consent:
(a) doing anything to, in, with, or in relation to a freshwater supply in a manner that contravenes an environmental standard; or
(b) doing anything in a manner that contravenes an environmental standard established for the protection of freshwater supplies.
A person must not carry out either of the following activities unless the activity is expressly authorised by this Act or the environmental regulations or has development consent:
(a) doing anything to, in, with, or in relation to a marine area in a manner that contravenes an environmental standard; or
(b) doing anything in a manner that contravenes an environmental standard established for the protection of marine areas.
A person must not carry out either of the following activities unless the activity is expressly authorised by this Act or the environmental regulations or has development consent:
(a) doing anything to, in, with, or in relation to animals in a manner that contravenes an environmental standard; or
(b) doing anything in a manner that contravenes an environmental standard established for the protection of animals.
A person must not carry out either of the following activities unless the activity is expressly authorised by this Act or the environmental regulations or has development consent:
(a) doing anything to, in, with, or in relation to plants in a manner that contravenes an environmental standard; or
(b) doing anything in a manner that contravenes an environmental standard established for the protection of plants.
A person must not carry out either of the following activities unless the activity is expressly authorised by this Act or the environmental regulations or has development consent:
(a) doing anything to, in, with, or in relation to the air or atmosphere in a manner that contravenes an environmental standard; or
(b) doing anything in a manner that contravenes an environmental standard established for the protection of the air or atmosphere.
A person must not carry out an activity in a manner that contravenes an environmental standard established in relation to noise control unless the activity is expressly authorised by this Act or the environmental regulations or has development consent.
Living modified organisms
(1) A person must not carry out any activity relating to the development, field testing, contained use, fermentation, or processing of a living modified organism unless the person has the written consent of the Director and the department responsible for the administration of the Agriculture Quarantine Act 1984 (the responsible department), whether granted with or without conditions.
(2) A person who causes or becomes aware of the unintentional release of a living modified organism must immediately notify the Director and the responsible department, and the Director, in conjunction with the responsible department, must -
(a) take all action necessary in the circumstances to respond to the release (taking into account the precautionary principle that where there is a threat of serious or irreversible damage, lack of full scientific certainty is not to be used as a reason for postponing cost-effective measures to prevent environmental degradation); and
(b) inform the Minister as soon as practicable.
Protected areas
(1) For the purposes set out in subsection (2), Cabinet may prescribe, -
(a) on its own volition, an area of land to be a protected area:
(b) on the request of a Village Council, an area of land within the Council's village to be a protected area, but only if the majority of magafaoa holding land in that part of the village have given their written consent to the request:
(c) any place or land to be tapu.
(2) Cabinet may prescribe an area to be a protected area for any one or more of the following purposes:
(a) science protection:
(b) wilderness protection:
(c) ecosystem protection and recreation:
(d) conservation of specific natural features:
(e) conservation through management intervention:
(f) landscape or seascape conservation or recreation:
(g) sustainable use of natural resources.
(3) An area of land prescribed to be a protected area under this section is protected to the extent set out in the regulations.
(4) Without limiting subsection (2), the protection may be -
(a) absolute, in which case no person may enter and no activities of any kind may be carried out in the protected area; or
(b) partial, in which case persons may enter and activities may be carried out in the manner specified in the notice.
(5) To avoid doubt, partial protection of a protected area may relate to any matter, including the following:
(a) access to the area; and
(b) activities that may or may not be carried out in the area, including activities relating to killing or taking any thing from the area; and
(c) when activities may be carried out in the area (whether by reference to season, month, time of day, or otherwise).
Regulations made under section 23 that protect an area of land or a tapu, or any thing within that land or tapu, must be treated for all purposes as if they were an environmental standard made under this Act for the carrying on of any activity within the protected area.
Protected plant species
(1) For the purposes of safeguarding Niue's environment, Cabinet may prescribe, -
(a) of its own volition, a species or subspecies of plant as a protected species:
(b) on the request of a Village Council, a species or subspecies of plant to be a protected species within the Council's village or part of the village, but only if the majority of magafaoa holding land in the village or part of the village have given their written consent to the request.
(2) Regulations made for the purposes of subsection (1) may prescribe a species or subspecies of plant as -
(a) absolutely protected; or
(b) protected in the circumstances specified in the regulations.
Regulations made under section 25 protecting a species or subspecies of plant must be treated for all purposes as if they were an environmental standard made under this Act for the carrying on of any activity.
Relationship of Act with other legislation and legal requirements
(1) To the extent that this Act is inconsistent with any other enactment, it overrides the other enactment.
(2) To the extent that the environmental regulations are inconsistent with any other subordinate legislation, they override the other subordinate legislation.
(3) In any enactment in relation to which the Director is required to give his or her consent or permission before an activity may be carried out, the Director may do so only if, in addition to any precondition specified in the enactment, he or she is also satisfied that -
(a) any relevant environmental standard will not be contravened by the giving of his or her consent or the granting of his or her permission; or
(b) the person to whom the consent or permission is given or granted will comply with the environmental standard.
(4) To avoid doubt, complying with this Act in relation to an activity does not limit or affect the need to comply with any obligation imposed by any other enactment in relation to that activity (for example, a building consent, water extraction licence, or timber cutting licence).
Part 3
Enforcement
(1) A person who carries out an activity to which section 8(1) applies without development consent, in contravention of the conditions of consent, or while consent is suspended, commits an offence and is liable on conviction to, -
(a) in the case of an individual, -
- (i) a fine not exceeding 500 penalty units or a term of imprisonment not exceeding 2 years, or both; and
- (ii) in the case of a continuing offence, a further fine not exceeding 100 penalty units for each day or part of a day during which the offence continues; or
(b) in the case of a body corporate, -
- (i) a fine not exceeding 15 000 penalty units; and
- (ii) in the case of a continuing offence, a further fine not exceeding 100 penalty units for each day or part of a day during which the offence continues.
(2) A person who provides information for the purposes of section 8(1) knowing that the information is false or misleading in any material particular, or who fails to comply with section 10(2), commits an offence and is liable on conviction to, -
(a) in the case of an individual, a fine not exceeding 500 penalty units or a term of imprisonment not exceeding 2 years, or both; or
(b) in the case of a body corporate, a fine not exceeding 1 000 penalty units.
(3) A person who contravenes an environmental standard or contravenes section 22(1) commits an offence and is liable on conviction to, -
(a) in the case of an individual, -
- (i) a fine not exceeding 5 000 penalty units or a term of imprisonment not exceeding 2 years, or both; and
- (ii) in the case of a continuing offence, a further fine not exceeding 500 penalty units for each day or part of a day during which the offence continues; or
(b) in the case of a body corporate, -
- (i) a fine not exceeding 10 000 penalty units; and
- (ii) in the case of a continuing offence, a further fine not exceeding 1 000 penalty units for each day or part of a day during which the offence continues.
(4) A person who fails or refuses to comply with section 22(2) or any request or requirement of an environment officer made under any of sections 46 to 49 commits an offence and is liable on conviction to a fine not exceeding 100 penalty units.
(5) In addition to any penalty imposed under subsections (1) to (3), the Court may order the person to pay the costs of any remedial actions taken by the Department or any other government department or public authority to rectify any consequences of the contravention or non-compliance concerned.
(6) The following offences are infringement offences:
(a) an offence against subsection (3) for the contravention of an environmental standard in relation to noise:
(b) any other offence against this Act that is declared by regulations made under section 46 to be an infringement offence.
(1) A person commits an offence who -
(a) does not submit any report or provide information as required under this Act or the environmental regulations; or
(b) offers or gives any inducement to any person exercising functions and powers under this Act or the environmental regulations which might reasonably be considered to have the purpose of influencing a decision of that person under this Act of the environmental regulations; or
(c) fails to comply with any requirement or condition of any approval or consent granted under this Act or the environmental regulations; or
(d) does not comply with the terms of any order of the Court made under this Act and served on that person.
(2) A person who commits an offence against any of paragraphs (a) to (d) of subsection (1) is liable on conviction to -
(a) fine not exceeding 100 penalty unit; or
(b) a term of imprisonment not exceeding 12 months; or
(c) both penalties described in paragraphs (a) and (b).
(1) If a person is alleged to have committed an infringement offence, the person may -
(a) be proceeded against in the normal manner by the laying of an information against the person; or
(b) be served with an infringement notice by a constable delivering it or a copy of it personally to the person's last known place of residence or business.
(2) An infringement notice must be in the prescribed form and must state -
(a) details of the alleged infringement offence that are sufficient to fairly inform the person of the time, place, and nature of the alleged offence; and
(b) the amount of the infringement fee; and
(c) an address at which the infringement fee may be paid; and
(d) the time within which the infringement fee must be paid; and
(e) that the person has a right to request a hearing; and
(f) what will happen if the person does not pay the fee and does not request a hearing; and
(g) any other prescribed information.
(3) If the person pays the infringement fee within the period stated in the infringement notice, -
(a) no further action may be taken against the person; and
(b) no conviction may be entered against the person for the offence.
(4) If the person does not pay the infringement fee or request a hearing within the period stated in the infringement notice, the Department must serve the person with a reminder notice in the prescribed form that contains the same or substantially the same particulars as the infringement notice.
(5) If the person does not pay the infringement fee or request a hearing within the period stated in the reminder notice, proceedings may be commenced against the person by filing the reminder notice with the Court and, for that purpose, -
(a) the reminder notice must be treated as the information for the infringement offence; and
(b) the Court is deemed to have made an order, on the date that the reminder notice is filed, that the defendant pay a fine equal to the amount of the infringement fee together with costs in the prescribed amount, but no conviction is entered against the person.
(6) A person requests a hearing by providing to the Department, within the period specified in the infringement notice or reminder notice, as the case may be, a notice, signed by the person, requesting a hearing and accepting or rejecting liability and, if accepting liability, the reasons, if any, why the Court should impose a lesser fine than the infringement fee for the offence.
(7) A person found guilty at a hearing held for the purposes of subsection (6) is liable to a fine equal to the amount of the infringement fee (unless the Court imposes a lesser amount) together with costs in the prescribed amount, but no conviction is entered against the person.
(8) To avoid doubt, if a person commits an infringement offence and proceedings against the person are taken in the normal manner under subsection (1)(a), the person is liable to pay not the infringement fee but the amount that the Court determines in accordance with section 26. However, no conviction may be entered against the person.
(1) Any person (the applicant) may institute proceedings in the Court that seek all or any of the relief set out in subsection (2) against any other person (the defendant) if the defendant has allegedly committed an environmental contravention.
(2) The Court may grant all or any of the following in relation to proceedings instituted under subsection (1):
(a) an injunction:
(b) damages for loss resulting from the contravention concerned (the contravention):
(c) a declaration that the defendant has committed the contravention:
(d) an order that the defendant make a public apology for the contravention:
(e) an order that any stated consequences of the contravention be reversed:
(f) an order for an account for profits arising from the contravention:
(g) an order for the seizure of any item in respect of which the contravention occurred that is owned by, in the possession of, or under the control of the defendant:
(h) any other orders that the Court thinks appropriate in the circumstances.
(1) Any person (the applicant) may institute proceedings in the Court that seek all or any of the relief set out in subsection (2) against any other person (the defendant) if there is reason to believe that the defendant intends to commit an environmental contravention.
(2) The Court may grant all or any of the following in relation to proceedings instituted under subsection (1):
(a) an injunction:
(b) damages for loss resulting from the intended contravention concerned (the prospective contravention):
(c) a declaration that the prospective contravention would be an environmental contravention:
(d) an order for the seizure of any object in respect of which the prospective contravention is intended to occur that is owned by, in the possession of, or under the control of the defendant:
(e) any other orders that the Court thinks appropriate in the circumstances.
In deciding what relief is to be granted under section 31(2) or 32(2), the Court may take into account (to the extent that they are applicable) all or any of the following:
(a) whether the defendant was aware or ought reasonably to have been aware that an action, or a failure or refusal to act, was or would be an environmental contravention:
(b) the effect of the environmental contravention or prospective environmental contravention on the applicant:
(c) anything done by the defendant to mitigate the effects of the contravention or prospective contravention:
(d) any cost or difficulty that may have been associated with ascertaining the facts of the particular case:
(e) any cost or difficulty in ceasing or reversing any consequences of the contravention or prospective contravention:
(f) whether the parties have undertaken any other action to resolve the situation.
(1) The Court may, in addition to any other punishment that may be imposed under this Act and having regard to the nature of the offence and the circumstances surrounding its commission, make an order -
(a) for indemnification of the Government, occupiers, or any person whose interest is affected by the damage caused to the environment or to human health:
(b) for replacement and restitution to their natural state of things affected:
(c) for rehabilitation of the environment affected at the cost of the party responsible for the offence:
(d) directing the offender to compensate any affected party, in whole or in part, for any environmental damage or the cost of any remedial or preventive action taken or caused to be taken as a result of the act or omission that constituted the offence:
(e) prohibiting the offender from doing any act or engaging in any activity that may result in the continuation or repetition of the offence:
(f) directing the offender to take such action as the Court considers appropriate to remedy or avoid any harm to the environment that results or may result from the act or commission that constituted the offence:
(g) directing the offender to post such bond or pay such amount of money to the Department or into Court as will ensure compliance with any order made under this section:
(h) directing the seizure and forfeiture of any vessel, aircraft, or vehicle used in the commission of any offence:
(i) requiring the offender to comply with such other reasonable conditions as the Court considers appropriate and just in the circumstances.
(2) Where an offender has been convicted of an offence under this Act, the Court may, at the time the sentence is imposed and on the application of the person aggrieved, order the offender to pay to that person an amount by way of satisfaction or compensation for loss of or damage to property or income suffered by that person as a result of the commission of the offence.
(3) Where an amount that is ordered to be paid under subsections (1) or (2) is not paid within the specified time, a civil judgment may be filed with the Court and that judgment is enforceable against the offender in the same manner as if it were a judgment rendered against the offender in the Court in civil proceedings.
(4) The Court may in addition to any other punishment that may be imposed under this Act impose a fine for each day the offence continues until compliance is fulfilled.
(1) Upon the conviction of any person, the prosecution may make submissions to the Court on the appropriateness of a community service order and of the availability of any community service work.
(2) The Court may sentence a person to a community service order instead of or in addition to a fine.
(3) The Court may order a person sentenced to a community service order to work under appropriate supervision a specified number of hours for a charitable or community cause or organisation, and where possible, the work should relate to environmental matters.
(4) The Court may specify whether the Director, a constable or some other person is to supervise the community service order work.
This Part does not affect any rights of action or other remedies, whether civil or criminal, provided for under any other enactment or rule of law.
Part 4
Administration
Environment Department
The Environment Department established by section 5 of the Environment Act 2003 continues in existence.
(1) The Department's functions are -
(a) to administer and implement this Act and the environmental regulations:
(b) to administer or implement any other enactment or part of any other enactment for which the Department is responsible, including the Wildlife Act 1972 and the Water Act 2012:
(c) to help the Government of Niue to formulate -
- (i) environmental and resource management objectives; and
- (ii) environmental policies and legislation:
(d) to design and implement, in collaboration with other departments if relevant, programmes for -
- (i) environmental planning and natural resource management; and
- (ii) environmental impact assessments; and
- (iii) waste management; and
- (iv) pollution control; and
- (v) nature conservation; and
- (vi) protection of cultural and historic areas; and
- (vii) dealing with climate change and natural disasters, including programmes relating to disaster risk management; and
- (viii) control and use of living modified organisms:
(e) to promote environmental awareness, undertake public information campaigns, and promote and provide environmental education:
(f) to review environmental legislation (including this Act) and, where necessary, propose amendments and regulations:
(g) to monitor and enforce environmental laws and policies:
(h) to oversee the formulation of collaborative policies and programmes on environmental matters with public authorities and with non-governmental organisations, and advise on, promote, and assist in implementing those policies and programmes:
(i) to promote the study of the environment through research, surveys, classifications, and compilation of databases:
(j) to undertake environmental studies and issue reports:
(k) to oversee, monitor, and approve research carried out in Niue relating to the environment:
(l) to promote community involvement in making decisions in relation to the environment:
(m) to encourage and foster knowledge, innovation, and practices embodied in traditional lifestyles that promote the protection, conservation, improvement, and management of the environment:
(n) to perform all other functions conferred by or under this Act.
(2) For the purposes of performing the functions described in subsection (1), the Department has all the necessary powers.
(3) To avoid doubt, when performing the functions described in subsection (1), the Department must -
(a) implement the general policy of the Government in relation to the protection and preservation of Niue's environment; and
(b) comply with any policy directive given to it by Cabinet that is not inconsistent with this Act or any other enactment.
(1) The Department also has the following functions:
(a) to consult and liaise with other government departments and public authorities to identify -
- (i) international conventions relating to the environment and multilateral environment agreements (MEAs) that it may be in Niue's interests to be a party to; and
- (ii) the obligations that Niue would assume under those conventions or MEAs; and
(b) in relation to international conventions relating to the environment or MEAs to which Niue is a party, -
- (i) to ensure Niue's effective representation at meetings of the parties and other relevant meetings:
- (ii) to liaise with relevant regional and international bodies to ensure that Niue meets its obligations under the conventions and MEAs:
- (iii) to manage or participate in projects aimed at implementing aspects of the conventions and MEAs:
- (iv) to disseminate information about the subject matter of the conventions and MEAs and create public awareness about them:
- (v) to prepare all necessary reports and report regularly to the Minister and Cabinet in relation to the implementation of the conventions and MEAs:
- (vi) to share information and otherwise provide the co-operation required by the conventions and MEAs:
- (vii) to recommend that laws be amended or enacted to implement effectively the requirements of the conventions and MEAs:
- (viii) to work with relevant departments and public authorities to implement obligations under the conventions and MEAs.
(2) For the purposes of performing the functions described in subsection (1), the Department has all the necessary powers.
(3) Subsection (1) does not limit the role, powers, or functions of any other department or public authority in relation to any international convention relating to the environment or MEA.
(1) The Department comprises the Director, and all other officers necessary for the administration of this Act, as appointed by the Niue Public Service Commission.
(2) The functions of the Director are to -
(a) manage the administration of this Act; and
(b) oversee the efficient, effective, and economical management of the Department; and
(c) set and update priorities for the work of the Department; and
(d) give advice to persons to whom he or she is accountable on matters concerning the environment and the functions of the Department; and
(e) carry out all other actions that are necessary to discharge those functions properly and effectively.
(1) The Director may delegate any of his or her powers (including the power to perform any of his or her functions) to any -
(a) officer of the Department or any member of staff of any other department; or
(b) public authority.
(2) The Director must not delegate this power to delegate.
(1) The Director must give to the Minister a report each financial year on the operations of the Department in the preceding year.
(2) The Minister must table a copy of the report before the Assembly at the first available meeting.
The Director, environment officers, and staff of the Department are not personally liable for anything done or omitted to be done in performing their functions in good faith under this Act or the environmental regulations.
Environment officers
(1) The Niue Public Service Commission may, by notice in writing, appoint 1 or more environment officers.
(2) In addition, the Commission may, by notice in writing to the individual, appoint any of the following individuals to be environment officers to perform the functions of an environment officer specified in the notice for the purpose specified in the notice:
(a) constables:
(b) biosecurity officers:
(c) customs officers:
(d) fisheries officers:
(e) public health inspectors:
(f) any other officer employed in the public service:
(g) any other person who the Commission considers on reasonable grounds is an appropriate person to perform the functions in relation to which the Commission intends to make the appointment.
(1) The Director must issue each environment officer appointed under section 44(1) or 44(2)(g) with an identification card.
(2) If it is practicable in the circumstances, an environment officer must produce his or her identification card -
(a) on each occasion before the officer exercises a power under this Act; and
(b) when requested to do so by any person who is affected by the actions of the officer while the officer exercises a power under this Act.
(3) It is sufficient for the purposes of complying with subsection (2) if an environment officer appointed under any of paragraphs (a) to (f) of section 44(2) produces any identification card that he or she holds in respect of his or her primary position as described in that paragraph so long as -
(a) the identification card is endorsed with a reference to the officer's appointment under this Act; or
(b) the officer can demonstrate in some other way that he or she is lawfully acting as an environment officer.
(1) An environment officer may inspect any place (other than a private home) if he or she believes on reasonable grounds that -
(a) anything has been done, is being done, or is intended to be done in that place in contravention of this Act; or
(b) there is in that place any thing whose presence there is a contravention of this Act, whether absolutely or by virtue of the lack of some necessary approval or consent (however described).
(2) If an application for an approval or consent is made but not determined under this Act or the environment regulations, an environment officer may inspect the place in which the environment officer reasonably considers the proposed activity will take place.
(3) An environment officer may inspect any thing if he or she believes on reasonable grounds that the thing contravenes this Act, or any action has been, is being, or is about to be done to the thing in contravention of this Act.
(4) The owner or occupier of any place at which an environment officer exercises or attempts to exercise a power of inspection under this or any other Act -
(a) must give the officer -
- (i) all reasonable assistance to enable the officer to exercise the power; and
- (ii) all information in relation to the exercise of the power that the officer reasonably requires; but
(b) is not required to give a response or information (whether in reply to a question or otherwise) that may incriminate himself or herself.
(5) Before requiring a person to answer questions or give a response or information, an environment officer must inform a person of his or her rights under subsection (4)(b).
(1) Every consent or approval issued under this Act or the environmental regulations authorises any environment officer to inspect any place to which the consent or approval relates (other than a private home) if the officer believes on reasonable grounds that something is being done in that place in contravention of this Act.
(2) The power to inspect conferred by subsection (1) is in addition to those conferred under section 46, and does not limit or affect them.
(1) An environment officer may, without a Court order or a search warrant, seize any thing (a seized item) if -
(a) the seized item -
- (i) is produced to the officer; or
- (ii) is in plain view during an inspection authorised by this Act or any other Act; and
(b) the officer has reasonable grounds to believe that -
- (i) an offence against this Act or the environmental regulations has been committed; and
- (ii) the seized item is evidence of the commission of the offence.
(2) The environment officer must -
(a) take reasonable steps to -
- (i) tell the owner (or person in apparent possession) of the seized item the reason for its seizure; and
- (ii) give the owner or person a receipt for the seized item; and
(b) remove the seized item to a place for safe keeping; and
(c) otherwise deal with the seized item in the same manner as if it were being seized under the authority of a search warrant under section 284 of the Niue Act 1966.
(1) An environment officer may, without a Court order or a search warrant, seize and remove from any land any item specified in subsection (2) if the Director believes on reasonable grounds that the item -
(a) has been abandoned; and
(b) is no longer capable of being used for its original purpose.
(2) The items referred to in subsection (1) are any vehicle, vessel, trailer, satellite dish, solar panel, gas cylinder, whiteware, or e-ware.
(3) The Director may dispose of any item removed under this section in the manner that he or she thinks fit, and no compensation is payable to any person for the disposal of it.
(4) In this section,-
e-ware means any computer, computer screen, printer, television, or computer equipment
whiteware means a cooker, refrigerator, washing machine, or microwave oven.
(1) An environment officer may not enter a private home for the purposes of sections 46 to 49 except--
(a) with the consent of the owner or occupier; or
(b) under the authority of a warrant made by an order issued under this section on an application by the officer.
(2) In any other case, an environment officer may apply for a warrant under this section if the officer reasonably believes that the officer may not be able to exercise any powers under sections 46 to 49 without a warrant, for example because -
(a) no person is present to grant access to a place that is locked or otherwise inaccessible; or
(b) a person has denied the officer access to a place or there is reasonable ground for believing that a person may deny the officer access to a place; or
(c) a person has prevented the officer from exercising any of those powers; or
(d) there are reasonable grounds to believe that an attempt by the officer to exercise any of those powers without the warrant might defeat the purpose of the powers concerned or cause an adverse effect.
(3) A judicial officer may make an order issuing a warrant under this section if satisfied on evidence in writing given under oath by the environment officer that the warrant is necessary for the purpose in subsection (1) or (2), as the case may.
(4) A warrant under this section may authorise an environment officer to exercise such powers under sections 46 to 49 that are specified in the warrant, and the warrant expires at the close of 14 days after the date on which it is issued unless extended by a judicial officer for a further period not exceeding 14 days.
(5) In this section, judicial officer means a Judge of the High Court or, if a Judge is not present in Niue, a Commissioner of the High Court or any 2 Justices of the Peace.
Part 5
Environmental levies and refunds
(1) Cabinet may prescribe levies based on the polluter pays principle in respect of any specified items imported into Niue or any operation that produces any product -
(a) that will or may have a significant environmental impact when they become waste; or
(b) in relation to which there are significant benefits to Niue from reduction, reuse, recycling, or recovery of the items.
(2) The items or operations to which the levy applies must be prescribed.
(3) The levy must be paid to the Customs Office but is in addition to any other levy required under the Customs Act 1966 or any other enactment.
(4) The Niue Treasury must keep separate accounts of any levy payable under this section so the amounts collected and any items to which they relate can be readily identified.
(5) A levy collected under this section must be paid into the Niue Government Account controlled by the Niue Treasury.
(1) For the purposes of maintaining or enhancing Niue's environment, Cabinet may prescribe -
(a) used items for which a refund may be given; and
(b) the amount of the refund; and
(c) requirements that must be met before an item qualifies for a refund (for example, that the item first be cleaned and taken to a particular place).
(2) Regulations made for the purposes of this section may leave any matter or thing to be regulated or controlled by the Director.
Part 6
Miscellaneous
(1) Cabinet may make regulations for the purposes of this Act.
(2) In particular, regulations may be made for all or any of the following purposes:
(a) prescribing the process by which development consent is granted for an activity:
(b) prescribing the requirements of an environmental impact assessment for an activity, including -
- (i) the information to be provided in an assessment; and
- (ii) the circumstances in which both an initial and a full impact assessment are required; and
- (iii) the persons who may conduct an assessment:
(c) prescribing forms to be used for the purposes of this Act:
(d) prescribing matters for which fees are payable under this Act and the amount of those fees, and providing for the Department to recover from applicants for development consents its reasonable costs for carrying out environmental impact assessments of any kind in relation to their applications:
(e) declaring which offences against this Act or regulations made under this Act constitute infringement offences:
(f) prescribing infringement fees not exceeding 5 penalty units for infringement offences (which may be different fees for different offences, including different fees for a first, second, or subsequent offence):
(g) prescribing matters relating to the identification, management, and control of living modified organisms:
(h) providing for any other matters contemplated by this Act that are necessary for its full administration or necessary for giving it full effect.
(3) Regulations made under this section may create offences for contravention of the regulations and may prescribe penalties for an offence committed against them of fines not exceeding 500 penalty units.
(4) Subsection (3) is subject to subsection (2)(f).
(1) If a company fails to comply with a provision of this Act, each person who is a director of the company or who is concerned in managing the company, is taken to have failed to comply with that provision, unless the person satisfies the Court that the person -
(a) has no actual, imputed or constructive knowledge of the failure by the company to comply with the provision; or
(b) was not in a position to influence the conduct of the company concerning its failure to comply with the provision, or, if in that position, had used all due diligence to prevent failure to comply by the company.
(2) If a company fails to comply with a provision of this Act, each person who is a director of the company or who is concerned in managing it may be proceeded against and convicted whether or not the company has been proceeded against and whether or not the company has been convicted.
(3) The company remains liable for any offence committed by it whether or not proceedings are commenced against the directors or those concerned with managing the company.
Where any company commits an offence under this Act, any penalty or award against that company takes precedence over any secured or preferred claim lodged in any action for bankruptcy against that company.
(1) The Environment Act 2003 is repealed.
(2) The Biosafety (Genetically Modified Organisms) Regulations 2006 and the Ozone Layer Protection Regulations 2007 are continued as if made under this Act and may be amended or revoked under this Act.
(1) This section amends the Water Act 2012.
(2) Section 2(1) is amended by inserting in their appropriate alphabetical order:
"infringement notice means a notice alleging the commission of an infringement offence
"infringement offence means an offence against this Act or regulations made under this Act that is classified as an infringement offence by regulations made under this Act."
(3) Section 30(2) is amended by inserting "using water for any purpose, including for" after "body corporate".
(4) Section 42 is amended by inserting the following subsection after subsection (2):
"(3) The holder of water pollution control licence may be charged a levy for the activity to which the licence relates and may be subject to any regulations prescribed under this Act."
(5) Section 54 is repealed and the following section is substituted -
"54 Infringement offences
"(1) If a person is alleged to have committed an infringement offence, the person may -
- "(a) be proceeded against in the normal manner by the laying of an information against the person; or
- "(b) be served with an infringement notice by a constable delivering it or a copy of it personally to the person's last known place of residence or business.
"(2) An infringement notice must be in the prescribed form and must state -
- "(a) details of the alleged infringement offence that are sufficient to fairly inform the person of the time, place, and nature of the alleged offence; and
- "(b) the amount of the infringement fee; and
- "(c) an address at which the infringement fee may be paid; and
- "(d) the time within which the infringement fee must be paid; and
- "(e) that the person has a right to request a hearing; and
- "(f) what will happen if the person does not pay the fee and does not request a hearing; and
- "(g) any other prescribed information.
"(3) If the person pays the infringement fee within the period stated in the infringement notice, -
- "(a) no further action may be taken against the person; and
- "(b) no conviction may be entered against the person for the offence.
"(4) If the person does not pay the infringement fee or request a hearing within the period stated in the infringement notice, the responsible Director must serve the person with a reminder notice in the prescribed form that contains the same or substantially the same particulars as the infringement notice.
"(5) If the person does not pay the infringement fee or request a hearing within the period stated in the reminder notice, proceedings may be commenced against the person by filing the reminder notice with the Court and, for that purpose, -
- "(a) the reminder notice must be treated as the information for the infringement offence; and
- "(b) the Court is deemed to have made an order, on the date that the reminder notice is filed, that the defendant pay a fine equal to the amount of the infringement fee together with costs in the prescribed amount, but no conviction is entered against the person.
"(6) A person requests a hearing by providing to the Director, within the period specified in the infringement notice or reminder notice, as the case may be, a notice, signed by the person, requesting a hearing and accepting or rejecting liability and, if accepting liability, the reasons, if any, why the Court should impose a lesser fine than the infringement fee for the offence.
"(7) A person found guilty at a hearing held for the purposes of subsection (6) is liable to a fine equal to the amount of the infringement fee (unless the Court imposes a lesser amount) together with costs in the prescribed amount, but no conviction is entered against the person.
"(8) To avoid doubt, if a person commits an infringement offence and proceedings against the person are taken in the normal manner under subsection (1)(a), the person is liable to pay not the infringement fee but the amount that the Court determines in accordance with section 52. However, no conviction may be entered against the person."
(6) Section 66 is amended by repealing paragraph (c) and substituting the following paragraphs -
"(c) declaring which offences against this Act or regulations made under this Act constitute infringement offences;
"(cc) prescribing infringement fees not exceeding 5 penalty units for infringement offences (which may be different fees for different offences, including different fees for a first, second, or subsequent offence);"
This section amends the Domestic Fishing Act 1995.
Section 2(1) is amended by inserting their appropriate alphabetical order:
"infringement notice means a notice alleging the commission of an infringement offence
"infringement offence means an offence against this Act or regulations made under this Act that is classified as an infringement offence by regulations made under this Act."
The following section is inserted after section 24 -
"24A Infringement offences
"(1) If a person is alleged to have committed an infringement offence, the person may -
- "(a) be proceeded against in the normal manner by the laying of an information against the person; or
- "(b) be served with an infringement notice by a constable delivering it or a copy of it personally to the person's last known place of residence or business.
"(2) An infringement notice must be in the prescribed form and must state -
- "(a) details of the alleged infringement offence that are sufficient to fairly inform the person of the time, place, and nature of the alleged offence; and
- "(b) the amount of the infringement fee; and
- "(c) an address at which the infringement fee may be paid; and
- "(d) the time within which the infringement fee must be paid; and
- "(e) that the person has a right to request a hearing; and
- "(f) what will happen if the person does not pay the fee and does not request a hearing; and
- "(g) any other prescribed information.
"(2) If the person pays the infringement fee within the period stated in the infringement notice, -
- "(a) no further action may be taken against the person; and
- "(b) no conviction may be entered against the person for the offence.
"(4) If the person does not pay the infringement fee or request a hearing within the period stated in the infringement notice, the Director must serve the person with a reminder notice in the prescribed form that contains the same or substantially the same particulars as the infringement notice.
"(5) If the person does not pay the infringement fee or request a hearing within the period stated in the reminder notice, proceedings may be commenced against the person by filing the reminder notice with the Court and, for that purpose, -
- "(a) the reminder notice must be treated as the information for the infringement offence; and
- "(b) the Court is deemed to have made an order, on the date that the reminder notice is filed, that the defendant pay a fine equal to the amount of the infringement fee together with costs in the prescribed amount, but no conviction is entered against the person."
"(6) A person requests a hearing by providing to the Director, within the period specified in the infringement notice or reminder notice, as the case may be, a notice, signed by the person, requesting a hearing and accepting or rejecting liability and, if accepting liability, the reasons, if any, why the Court should impose a lesser fine than the infringement fee for the offence.
"(7) A person found guilty at a hearing held for the purposes of subsection (6) is liable to a fine equal to the amount of the infringement fee (unless the Court imposes a lesser amount) together with costs in the prescribed amount, but no conviction is entered against the person.
"(8) To avoid doubt, if a person commits an infringement offence and proceedings against the person are taken in the normal manner under subsection (1)(a), the person is liable to pay not the infringement fee but the amount that the Court determines in accordance with section 24. However, no conviction may be entered against the person."
Section 28 is amended by inserting, as subsection (2), the following subsection -
"(2) The regulations may, without limitation, -
- "(a) create offences for contravention of the regulations and prescribe penalties not exceeding 5 penalty units for such offences:
- "(b) declare which offences against this Act or regulations made under this Act constitute infringement offences:
- "(c) prescribe infringement fees for infringement offences (which may be different fees for different offences, including different fees for a first, second, or subsequent offence) not exceeding the lesser of the following -
- "(i) 5 penalty units; or
- "(ii) the maximum penalty specified in the section of this Act that creates the offence (in the case of an offence against this Act that is declared to be an infringement offence)."
(1) This section amends the Territorial Sea and Exclusive Economic Zone Act 1996.
Section 2(1) is amended by inserting their appropriate alphabetical order:
"infringement notice means a notice alleging the commission of an infringement offence
"infringement offence means an offence against this Act or regulations made under this Act that is classified as an infringement offence by regulations made under this Act."
The heading to Part 10 is amended by inserting "AND INFRINGEMENT OFFENCES" after "LIABILITY".
The following section is inserted after section 59 -
"59A Infringement offences
"(1) If a person is alleged to have committed an infringement offence, the person may -
- "(a) be proceeded against in the normal manner by the laying of an information against the person; or
- "(b) be served with an infringement notice by a constable delivering it or a copy of it personally to the person's last known place of residence or business.
"(2) An infringement notice must be in the prescribed form and must state -
- "(a) details of the alleged infringement offence that are sufficient to fairly inform the person of the time, place, and nature of the alleged offence; and
- "(b) the amount of the infringement fee; and
- "(c) an address at which the infringement fee may be paid; and
- "(d) the time within which the infringement fee must be paid; and
- "(e) that the person has a right to request a hearing; and
- "(f) what will happen if the person does not pay the fee and does not request a hearing; and
- "(g) any other prescribed information.
"(2) If the person pays the infringement fee within the period stated in the infringement notice, -
- "(a) no further action may be taken against the person; and
- "(b) no conviction may be entered against the person for the offence.
"(4) If the person does not pay the infringement fee or request a hearing within the period stated in the infringement notice, the Director must serve the person with a reminder notice in the prescribed form that contains the same or substantially the same particulars as the infringement notice.
"(5) If the person does not pay the infringement fee or request a hearing within the period stated in the reminder notice, proceedings may be commenced against the person by filing the reminder notice with the Court and, for that purpose, -
- "(a) the reminder notice must be treated as the information for the infringement offence; and
- "(b) the Court is deemed to have made an order, on the date that the reminder notice is filed, that the defendant pay a fine equal to the amount of the infringement fee together with costs in the prescribed amount, but no conviction is entered against the person.
"(6) A person requests a hearing by providing to the Director, within the period specified in the infringement notice or reminder notice, as the case may be, a notice, signed by the person, requesting a hearing and accepting or rejecting liability and, if accepting liability, the reasons, if any, why the Court should impose a lesser fine than the infringement fee for the offence.
"(7) A person found guilty at a hearing held for the purposes of subsection (6) is liable to a fine equal to the amount of the infringement fee (unless the Court imposes a lesser amount) together with costs in the prescribed amount, but no conviction is entered against the person.
"(8) To avoid doubt, if a person commits an infringement offence and proceedings against the person, are taken in the normal manner under subsection (1)(a), the person is liable to pay not the infringement fee but the amount that the Court determines in accordance with the relevant penalty provision in this Act that applies when proceedings are taken in the normal manner under subsection (1)(a). However, no conviction may be entered against the person."
Section 60 is amended by inserting the following subsection after subsection (2) -
"(3) The regulations may also, without limitation, -
- "(a) prescribe fees or charges for the purposes of this Act, or a means by which fees or charges for the purposes of this Act may be calculated or ascertained:
- "(b) create offences for contravention of the regulations and prescribe penalties not exceeding 5 penalty units for such offences:
- "(c) declare which offences against this Act or regulations made under this Act constitute infringement offences:
- "(d) prescribe infringement fees for infringement offences (which may be different fees for different offences, including different fees for a first, second, or subsequent offence) not exceeding the lesser of the following -
- "(i) 5 penalty units; or
- "(ii) the maximum penalty specified in the section of this Act that creates the offence (in the case of an offence against this Act that is declared to be an infringement offence)."
All employees of the Department who were appointed before the commencement of this Act are deemed to have been appointed under sections 35 and 38 and, subject to this Act, continue on the terms and conditions of their original appointment.
.....................................
I, TOGIAVALU PIHIGIA, Speaker of the Niue Assembly, certify that the requirements of Article 34 of the Niue Constitution have been complied with.
SIGNED AND SEALED at the Assembly Chambers this 29th day of October 2015
....................................
Speaker of the Niue Assembly
COUNTERSIGNED in the presence of the Speaker
...................................
Clerk of the Niue Assembly
This Act is administered by the Environment Department.
This Act was passed by the Niue Assembly on the 28th day of September 2015.
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URL: http://www.paclii.org/nu/legis/num_act/ea2015159
