TOKELAU

CUSTOMS REGULATIONS 1991

1991/4

1 March 1991

ANALYSIS

1. Title and commencement

Preliminary Provisions

2. Interpretation
3. Definition of "importation"
4. Presumption that goods imported or exported for commercial purposes

Importation of Goods

5. Prohibited imports
6. Imports requiring import permit
7. Administrator may prohibit or restrict importation of drug or poison

Export of Goods

8. Exports requiring export permit

Permits to Import or Export Goods

9. Permits to import or export goods
10. Revocation or modification of permit
11. Production of permit

Import Duty

12. Import duty
13. Rates of import duty
14. Valuation of goods
15. Recovery and collection of import duty
16. Refund of duty

Miscellaneous Provisions

17. Landing of goods and persons
18. Customs control
19. Powers of constables in relation to customs
20. Restrictions on power of search
21. Forfeiture of goods
22. Disposal of forfeited goods
23. Protection of constables, etc.

Offences

24. Offences
25. Offence to import prohibited plant or psychotropic drug

Revocations

26. Revocations 
Schedules

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1. Title and commencement - (1) These regulations may be cited as the Tokelau Customs Regulations 1991.

(2) These regulations shall come into force on the 1st day of March 1991.

Preliminary Provisions

2. Interpretation - In these regulations, unless the context otherwise requires,

"Administrator" means the Administrator of Tokelau:

"Alcoholic beverage" means any beverage that contains alcohol:

"Ammunition" means ammunition for a firearm:

"Carrier" includes every person engaged in carrying goods for hire or reward by any means, and whether by land, water, or air:

"Customs control area", in relation to any island of Tokelau, means any area on that island that is designated as a customs control area by the Pulenuku of the village of that island:

"Explosive" does not include coloured flares, fog signals, or fireworks:

"Export" means to take or cause to be taken out of Tokelau:

"Export permit" means a permit granted under regulation 9 of these regulations authorising the person to whom it is granted to export any goods:

"Firearm" includes an airgun:

"Goods" means any moveable property:

"Historical artifact" means - 

(i) Any chattel, carving, object, or thing that relates to the history, art, culture, or traditions of the Tokelauan inhabitants of Tokelau and is of historical importance:

(ii) Any chattel, carving, object, or thing that has been discovered in Tokelau through archaeological investigation:

(iii) Any chattel, carving, object, or thing that is for the time being declared by any village rule to be of special significance in Tokelauan culture:

"Import" means bring or cause to be brought into Tokelau:

"Import duty" means the duty imposed by regulation 12 of these regulations:

"Import permit" means a permit granted under regulation 9 of these regulations authorising the person to whom it is granted to import any goods:

"Offensive weapon" means any article made or altered for use for causing bodily injury:

"Organotin" means any substance that is characterised by at least 1 direct carbon-tin bond; and includes tributyltin and triphenyltin:

"Organotin antifouling paint" means any paint -

(i) That is intended for use in the control of fouling organisms on boat hulls or other underwater structures; and

(ii) That contains any organotin:

"Ozone depleting substance" means any substance specified or described in the Fifth Schedule to these regulations:

"Package" includes every means by which goods for carriage may be cased, covered, enclosed, contained, or packed:

"Prohibited plant" means - 

(i) The whole or any part of any cannabis plant, except where all the resin has been extracted:

(ii) The whole or any part of any fruit or seed of any cannabis plant:

(iii) The whole or any part of any opium poppy.

(iv) The whole or any part of any coca leaf, except where all ecgonine, cocaine, and any other ecgonine alkaloids have been removed:

(v) Any extract from, or any derivative or product of, or any substance, preparation, or mixture containing, any plant, fruit, seed, or leaf referred to in any of paragraphs (i) to (iv) of this definition, except where the extract, derivative, product, substance, preparation, or mixture is in such a form that it has no, or a negligible, risk of abuse:

"Psychotropic drug" means - 

(i) Any substance (natural or synthetic) or preparation for the time being specified or referred to in Schedule I or Schedule II or Schedule III or Schedule IV of the Single Convention on Narcotic Drugs, done at New York on the 30th day of March 1961:

(ii) Any substance (natural or synthetic) or natural material for the time being specified or referred to in Schedule I or Schedule II or Schedule III or Schedule IV of the Convention on Psychotropic Substances, done at Vienna on the 21st day of February 1971:

(iii) Any substance or preparation containing any proportion of one or more of the substances or materials referred to in paragraph (i) or paragraph (ii) of this definition, - 

but does not include a prohibited plant:

"Territorial limits of Tokelau" means the outer limits of the territorial sea of Tokelau:

"Tobacco" includes cigars, cigarettes, and snuff:

"Village rule" means a rule made pursuant to regulation 18 of the Tokelau Village Incorporation Regulations 1986*.
*S.R. 1986/319

3. Definition of "importation" - (1) For the purposes of these regulations, goods shall be deemed to be imported into Tokelau if and as soon as they are brought or come within the territorial limits of Tokelau from any country outside those limits.

(2) Ship's or aircraft's stores, and goods whose destination is outside the territorial limits of Tokelau, shall not be deemed to have been imported unless, while they are within those limits, they are unloaded from the vessel or aircraft in which they arrived there.

4. Presumption that goods imported or exported for commercial purposes - Where any goods are imported into, or exported from, Tokelau in a quantity that is larger than would normally be required for the private purposes of the importer or exporter as the case may be, those goods shall be presumed for the purposes of these regulations, to be imported or, as the case may be, exported for commercial purposes unless and until the contrary is proved.

Importation of Goods

5. Prohibited imports - No person shall import any of the goods specified in the First Schedule to these regulations.

6. Imports requiring import permit - (1) Subject to these regulations, no person shall import any of the goods specified in the Second Schedule to these regulations except in accordance with an import permit.

(2) Nothing in subclause (1) of this regulation applies in respect of any explosive, firearm, or ammunition that is dealt with in accordance with regulation 15 of the Tokelau Police Regulations 1989*.
*S.R. 1989/270

7. Administrator may prohibit or restrict importation of poison - (1) The Administrator may from time to time, by notice published in accordance with subclause (2) of this regulation, prohibit the importation into Tokelau of any specified drug or poison, either absolutely or except in accordance with an import permit.

(2) A copy of every notice issued under subclause (1) of this regulation – 

(i) Shall, as soon as practicable after it is issued, be publicly notified at the Office for Tokelau Affairs at Apia in Western Samoa, and at the Administration Office of each village in Tokelau; and

(ii) Shall be printed in Tokelauan and in English in the first issue of Te Vakai published after the issuing of the notice.

(3) Every notice under subclause (1) of this regulation shall come into force on the date specified for that purpose in the notice, but no such notice shall come into force until a copy of that notice is publicly notified in accordance with subclause (2)(i) of this regulation.

(4) Any notice under this regulation may be in like manner amended or revoked at any time.

Export of Goods

8. Exports requiring export permit - Subject to these regulations, no person shall export any of the goods specified in the Third Schedule these regulations except in accordance with an export permit.

Permits to Import or Export Goods

9. Permits to import or export goods - (1) Any person who wishes to import goods of any of the kinds specified in the Second Schedule to these regulations may apply to the Administrator for the issue of a permit to import those goods.

(2) Any person who wishes to export goods of any of the kinds specified in the Third Schedule to these regulations may apply to the Administrator for the issue of a permit to export those goods.

(3) Every application under subclause (1) or subclause (2) of this regulation shall be made in such manner as the administrator may specify, either generally or in any particular case, and shall be accompanied by such information as the Administrator may reasonably require, either generally or in any particular case, in order to determine whether to issue the permit.

(4) Where any application for an import permit or an export permit is made to the Administrator pursuant to subclause (1) or subclause (2) of this regulation, the Administrator may, after consultation with such Taupulega as the Administrator considers appropriate, issue the permit, or decline to do so.

(5) Every permit issued under this regulation may be issued subject to such conditions as the Administrator thinks fit and as are specified in the permit.

10. Revocation or modification of permit - The Administrator may at any time, by notice in writing to any person to whom an import permit or an export permit has been issued under these regulations, -

(i) Revoke that permit:

(ii) Modify the terms, conditions, or restrictions that apply to that permit.

11. Production of permit - For the purposes of these regulations, every person to whom any import permit has been granted shall, -

(i) In the case of an export permit, before exporting the goods to which the permit relates; or

(ii) In the case of an import permit, at the time of landing the goods to which the permit relates, - 

produce the permit, or cause the permit to be produced, to a constable.

Import Duty

12. Import duty - (1) There is hereby imposed a duty on -

(i) All goods imported for commercial purposes other than for sale in a village store:

(ii) All imported alcoholic beverages:

(iii) All imported tobacco.

(2) Where any goods fall within more than 1 of the categories of goods on which import duty is imposed, those goods shall be liable to import duty in respect of each category of goods into which they fall.

(3) Import duty shall be payable only in respect of goods that are imported after the date of the commencement of these regulations.

13. Rates of import duty - (1) The General Fono may from time to time, by notice published in Te Vakai, prescribe the rates of import duty.

(2) The rates of import duty shall be published in Te Vakai at least 28 days before the date on which they are to come into force.

(3) Any notice under this regulation may be in like manner amended or revoked at any time.

(4) Where an amendment alters the rate of import duty, the notice effecting that amendment shall be published in Te Vakai at least 28 days before the date on which the amendment comes into force.

(5) If no rates of import duty are for the time being prescribed under subclause (1) of this regulation, the rates of import duty shall be as specified in the Fourth Schedule to these regulations.

14. Valuation of goods - (1) Where import duty is imposed on any goods according to their value, that value shall be taken to be the fair market value of the goods when sold for cash at retail in the country from which the goods are exported to Tokelau at the time when they are so exported.

(2) If in the opinion of the Administrator it is for any reason impossible, inequitable, or impracticable to determine the value of goods for import duty purposes in accordance with subclause (1) of this regulation, the Administrator shall determine the value for import duty purposes of the goods in such manner and at such sum as the Administrator considers just.

(3) The determination of the Administrator as to the value of any goods for import duty purposes shall be final.

15. Recovery and collection of import duty – (1) Import duty on all goods imported shall become due and payable, and shall be paid to the Administrator, immediately on their importation.

(2) Notwithstanding anything in subclause (1) of this regulation, the Administrator may from time to time agree with any person who wishes to import goods on which import duty would be payable to accept payment of that import duty in advance of the importation of the goods.

(3) Import duty shall be owing by the importer, and, if there are several importers, then jointly and severally by all of them.

(4) Import duty shall constitute a debt due to the Crown, and shall be recoverable on behalf of the Crown at the suit of the Administrator.

16. Refund of duty - (1) If the Administrator is satisfied that any import duty has been paid in error, whether of law or fact, the Administrator shall refund that duty.

(2) Where the Administrator is satisfied that any goods have been destroyed, pillaged, or lost without the wilful act or the negligence of the importer, or any employee or agent of the importer, -

(i) In the case of goods in respect of which import duty has been paid in advance of their importation, at any tune before those goods are imported, or, if the goods have been imported, at any time before those goods cease to be subject to customs control; or

(ii) In any other case, at any time after those goods are imported and before those goods cease to be subject to customs control, -

no import duty shall be payable in respect of those goods, and, if paid, it shall be refunded.

(3) Where the Administrator is satisfied that any imported goods -

(i) Have been damaged or have deteriorated in condition before importation; or

(ii) Are found, before they cease to be subject to customs control, to be of faulty manufacture; or

(iii) Have been damaged or have deteriorated in condition after importation and while subject to customs control, without the wilful act or the negligence of the importer, or any employee or agent of the importer, -

the Administrator may remit to the importer such amounts of the import duty paid in respect of those goods as the Administrator thinks fit, or may refund that duty.

Miscellaneous Provisions

17. Landing of goods and persons - (1) Subject to subclause (2) of this regulation, no person who is for the time being in charge or command any vessel or aircraft shall, -

(i) Where that vessel or aircraft arrives in Tokelau for the first time on any journey from any country outside Tokelau, cause or permit any goods to be unloaded, or any of its crew or passengers to disembark from the vessel or aircraft; or

(ii) Where the next destination of that vessel or aircraft is any country outside Tokelau, cause or permit any goods to be loaded into, or any of its crew or passengers to board, that vessel or aircraft; or

(iii) Cause or permit any goods that are to be exported and are subject to customs control to be loaded into that vessel or aircraft; or

(iv) Cause or permit any imported goods that are subject to customs control to be unloaded from that vessel or aircraft, -

other than at a place and in a manner that is authorised by a constable.

(2) Nothing in subclause (1) of this regulation applies if the loading or unloading of any goods, or the disembarking or boarding of any crew or passengers, is necessary for reasons of health or safety, or for the preservation of life or property.

18. Customs control - For the purposes of these regulations, goods shall be subject to customs control as follows:

(i) In the case of all goods imported, from the time of importation until a constable discharges them from customs control, or until they are exported to a country outside Tokelau, whichever occurs first;

(ii) In the case of all goods for export, from the time they are brought to any customs control area for export, until they are exported to a country outside Tokelau.

19. Powers of constables in relation to customs - Any constable may, for the purpose of ensuring compliance with these regulations, - 

(i) Examine or cause to be examined any goods that are subject to customs control, and for that purpose may open or cause to be opened any package in which such goods are contained:

(ii) Board any vessel or aircraft that is within the territorial limits of Tokelau; and remain on board such vessel or aircraft for such period as may be necessary to enable the constable to exercise or perform, in relation to that vessel or aircraft, any of that constable's powers, duties, or functions under these regulations:

(iii) Search any vessel or aircraft that is within the territorial limits of Tokelau, and for that purpose may, by force if necessary, enter any part of the vessel or aircraft, and open any package, locker, or other place, and examine all goods found on the vessel aircraft:

(iv) Question any person who is on board any vessel or aircraft, or has within 48 hours disembarked from any vessel or aircraft, as to whether the person has, or within that period of 48 hours has had, in that person's possession any of the goods specified in First Schedule or the Second Schedule or the Third Schedule to these regulations or any prohibited plant or psychotropic drug:

(v) Where the constable has reasonable cause to suspect that any person who is on board any vessel or aircraft, or who has within 48 hours disembarked from any vessel or aircraft, has in that person's possession any of the goods specified in the First Schedule or the Second Schedule or the Third Schedule to these regulations or any prohibited plant or psychotropic drug, detain and search that person, and open any package and examine any goods carried by that person, and may for that purpose use such force as may be reasonably necessary to effect that detention, search, or examination.

20. Restrictions on power of search - (1) No person shall be searched pursuant to regulation 19 (v) of these regulations by or in the presence any person of the opposite sex.

(2) Where any constable wishes to search any person pursuant regulation 19 (v) of these regulations, and no constable of the same sex as that person is available to carry out the search, that search may, subject to subclause (1) of this regulation, be carried out by any person authorised by the Tokelau Administration; either generally or for the particular case.

(3) Any constable who searches a person pursuant to regulation 19 (v) of these regulations may, subject to sub clause (1) of this regulation, have assistance of such person as that constable thinks necessary.

(4) Where -

(i) Any constable wishes to examine any goods pursuant to regulation of these regulations: and

(ii) The owner, consignor, or consignee of those goods is known, or can be readily ascertained, and is available, -

that constable shall not examine those goods except in the presence of owner, consignor, or consignee.

21. Forfeiture of goods - (1) The following goods shall be forfeited:

(i) All goods imported in contravention of regulation 5 or regulation 6 of these regulations:

(ii) All goods exported or attempted to be exported in contravention of regulation 8 of these regulations.

(2) Any constable may seize any goods forfeited pursuant to subclause (1) of this regulation, and may use such force as is reasonably necessary for the purpose of effecting the seizure.

(3) All goods seized pursuant to subclause (2) of this regulation shall be taken to such place of security as the Tokelau Administration may from time to time direct, either generally or in any particular case.

(4) Every constable who seizes any goods pursuant to subclause (2) of this regulation shall make and preserve a written record of the details of the seizure and the disposal of the goods.

22. Disposal of forfeited goods - (1) All goods forfeited under subclause (1) of regulation 21 of these regulations shall, on forfeiture, become the property of, -

(i) If the goods are seized pursuant to subclause (2) of that regulation on any island of Tokelau, the village of that island; or

(ii) If the goods are seized pursuant to subclause (2) of that regulation within the territorial sea of Tokelau, the village of the island that is nearest to the point at which the goods are seized.

(2) In the event of any dispute as to which village of Tokelau is entitled to any goods that are forfeited under regulation 21(1) of these regulations, the matter shall be determined by the Administrator, whose decision shall be final.

(3) All goods forfeited under regulation 21(1) of these regulations to any village shall, if the Faipule of the village so directs, be sold, destroyed, or otherwise disposed of.

23. Protection of constables, etc. - No proceedings, civil or criminal, shall lie against any constable, or against the Administrator or any employee or agent of the Tokelau Administration, or against the Government of New Zealand or any of its employees or agents, in respect of any thing done or omitted in the exercise or performance in good faith of any function, duty, or power under these regulations.

24. Offences - Every person commits an offence and is liable on conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding $150 who, - 

(i) In contravention of regulation 5 of these regulations, imports any of the goods specified in First Schedule to these regulations; or

(ii) In contravention of regulation 6 of these regulations, imports any of the goods specified in the Second Schedule to these regulations; or

(iii) In contravention of regulation 8 of these regulations, exports or attempts to export any of the goods specified in the Third Schedule to these regulations; or

(iv) Without lawful excuse, is knowingly concerned in the loading, unloading, landing, carriage, or concealment of any goods that the person knows have been imported in contravention of regulation 5 or regulation 6 of these regulations, or any goods that the person knows are intended to be exported in contravention of regulation 8 of these regulations; or

(v) For the purpose of procuring an import permit or an export permit, whether for that person's own benefit or for the benefit of any other person, makes any statement knowing that it is both incorrect and material in any information or particulars furnished to the Administrator pursuant to regulation 9 of these regulations, or knowingly makes any material omission from any information or particulars so furnished; or

(vi) Without lawful excuse, commits any breach of, or fails in any respect to comply with, any condition specified by the Administrator in respect of any import permit or export permit granted to that person; or

(vii) Without lawful excuse, fails to comply with regulation 11 of these regulations; or

(viii) Imports, ships, unships, lands, conveys, or otherwise deals with any goods with intent to evade the payment of import duty, or full import duty, on those goods; or

(ix) Without lawful excuse, contravenes regulation 17 of these regulations; or

(x) When required under paragraph (iv) of regulation 19 of these regulations to answer any question put to that person, fails, without lawful excuse, to answer it, or gives any information in response to a question under that paragraph knowing that the information is false or misleading; or

(xi) Without the permission of a constable, and without lawful excuse, moves any goods that are subject to customs control, or makes any alteration in the condition of such goods or in the packages containing them; or

(xii) Wilfully resists, obstructs, intimidates, or endeavours to intimidate any constable acting in the exercise or performance of any power, duty, or function conferred or imposed on that constable by these regulations.

25. Offence to import prohibited plant or psychotropic drug - (1) Subject to subclause (2) of this regulation, every person commits an offence and is liable on conviction to imprisonment for a term not exceeding 1 year or to a fine not exceeding $1,000 who imports, or knowingly assists in the importation of, - 

(i) Any prohibited plant; or

(ii) Any psychotropic drug.

(2) Notwithstanding anything in subclause (1) of this regulation, but subject to regulations 5 and 6 of these regulations, - 

(i) Any medical practitioner, dentist, pharmacist, or veterinary surgeon, acting as such in the course of that person's practice or employment, may import any prohibited plant or psychotropic drug:

(ii) Any person for whom a prohibited plant or psychotropic drug is lawfully supplied, outside Tokelau, by a medical practitioner or dentist, or prescribed by a medical practitioner or dentist and lawfully supplied outside Tokelau, may import that prohibited plant or psychotropic drug:

(iii) Any person having the care of any per son for whom a prohibited plant or psychotropic drug is lawfully supplied, outside Tokelau, by a medical practitioner or dentist, or prescribed by a medical practitioner or dentist and lawfully supplied outside Tokelau, may import that prohibited plant or psychotropic drug on behalf of that person:

(iv) Any person having the care of an animal for which a prohibited plant or psychotropic drug is lawfully supplied, outside Tokelau, by a veterinary surgeon, or prescribed by a veterinary surgeon and lawfully supplied outside Tokelau, may import that prohibited plant or psychotropic drug for that animal:

(v) Any carrier, and any agent or employee of a carrier, may import any prohibited plant or psychotropic drug in the course of carriage to such extent as is necessary or incidental to the business as a carrier.

Revocations

26. Revocations - (l) The Tokelau Customs Duties Regulations 1957 (S.R 1957/206) are hereby revoked.

(2) The Port of Apia Deemed Port of Entry for Union Islands Ordinance 1941* (No. 1 of 1941) shall, after the commencement of these regulations, cease to have effect as part of the law of Tokelau.
*Western Samoa Gazette, 4 March 1941, p. 805

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SCHEDULES

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FIRST SCHEDULE

Reg. 5

PROHIBITED IMPORTS

1. Counterfeit or false –

(i) Coins or banknotes:

(ii) Cheque forms or promissory notes.

2. Indecent or obscene documents or articles.

3. Offensive weapons.

4. Any drug or poison the importation of which is absolutely prohibited by any notice issued under regulation 7 of these regulations.

5. Ozone depleting substances in a non-processed form (whether alone or in a mixture), but not including any ozone depleting substance that is in a manufactured product (other than in a container used for the transportation or storage of the substance).

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SECOND SCHEDULE

Reg. 6

IMPORTS REQUIRING IMPORT PERMIT

1. Any drug or poison the importation of which is prohibited by any notice issued under regulation 7 of these regulations except in accordance with an import permit.

2. Explosives, firearms, ammunition.

3. Motorised vehicles.

4. Refrigeration equipment, air-conditioning equipment, and fire-fighting equipment, where the equipment contains, or is designed to use, any ozone depleting substance.

5. Aerosols for commercial purposes, where the aerosol contains an ozone depleting substance.

6. Organotin antifouling paint.

7. Goods for commercial purposes other than sale in a village store.

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THIRD SCHEDULE

Reg. 8

EXPORTS REQUIRING EXPORT PERMIT

1. Goods for commercial purposes (other than copra or handicrafts, where the copra or handicrafts are produced in Tokelau and are intended to be sold by the Tokelau Administration either on its own behalf or as agent for any other person).

2. Historical artefacts.

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FOURTH SCHEDULE

Reg. 13(5)

RATES OF IMPORT DUTY

Goods	Rate of duty	
		
1. Goods for commercial purposes other than for sale in a village store ……………………………………..
	6 percent ad valorem	
2. Alcoholic beverages ………………………………
	109 percent ad valorem	
3. Tobacco …………………………………………..
	110 percent ad valorem	

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FIFTH SCHEDULE

Reg. 2

OZONE DEPLETING SUBSTANCES

1. The following substances, namely -

(i) Trichlorofluoromethane (CFC-11):
(ii) Dichlorodifluoromethane (CFC-12):
(iii) 1, 1, 2 - Trichloro - 1, 2, 2 - trifluoroethane (CFC-113):
(iv) 1, 2 - Dichlorotetrafluoroethane (CFC-114):
(v) Chloropentafluoroethane (CFC-115):
(vi) Bromochlorodifluoromethane (halon-1211):
(vii) Bromotrifluoromethane (halon-1301):
(viii) Dibromotetrafluoroethane (halon-2402):
(ix) 1, 1, 1 - trichloroethane (methyl chloroform):
(x) Carbon tetrachloride:
(xi) Chlorodifluoromethane (HCFC-22).

2. Any other substance for the time being specified or referred to in Annex A or Annex B or Annex C to the Montreal Protocol on Substances that Deplete the Ozone Layer, done at Montreal on the 16th day of September 1987.

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